Poland’s National Broadcasting Council (KRRiT) has asked the president, prime minister and other constitutional bodies to review the compliance of an article in the Broadcast Act with the country’s constitution.
In its opinion, it may give rise to a justified fear that it is inconsistent with the provisions of the constitution.
In a statement, KRRiT says that a licence may be granted to a natural person having Polish citizenship and permanent residence in the territory of the Republic of Poland, a legal person or a commercial personal company established in the territory of the Republic of Poland. In the event that the concessionaire company is with foreign participation, the current act provides for a number of restrictions including a ban on the possession of more than 49% of shares by a foreign entity and a ban on the exercise (including by subsidiaries) of more than 49% of votes.
At the same time, the article indicates that the concession may also be granted to a foreign person or a subsidiary, within the meaning of the Code of Commercial Companies, from a foreign person whose registered office or permanent residence is in a Member State of the European Economic Area, without applying the restrictions contained in the above. KRRiT continues by saying that there is an unequal treatment of Polish entities operating on the same market in relation to, inter alia, a Polish subsidiary (directly) of a foreign person from the EEA and indirectly of a non-EEA entity. This situation is contrary to the principles of equality before the law and undermines the rules of proper competition on the same market.
Essentially, entities which, irrespective of the origin of their capital, operate through entities established in one of the EEA countries, are in a privileged position compared to Polish entities.
This is not inconsistent with European Union law (as the so-called reverse discrimination) but is contrary to the constitutional principle of equality.
