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Tuesday 18 June 2013

The Council of State ruling about ERT: what on earth does it mean?

Last night the Council of State issued a ruling which was hailed as overturning common ministerial decision  OIK 02/11.06.2013 that shut down with immediate effect Greece's public broadcaster ERT, leaving TV watchers in front of a black screen. The Council of State specifically orders:

1. That enforcement of the common ministerial decision is suspended "exclusively with regard to those items pertaining to a) the interruption of transmissions of radio and television signals and of operations of websites owned by ERT, and b) the fact that ERT frequencies should remain inactive (article 2, § 2, item b of the common ministerial decision)."

2. That competent ministers [i.e. the Minister of Finance and the Minister of State responsible for media affairs] should take "necessary organizational measures for the resumption of radio and television signal transmissions and the operation of websites owned by a public broadcaster until the establishment of a new agency which will serve the public interest, as stipulated in article 1 § 2 of the common ministerial decision."

But what does this mean in practice?

The Council of State ruling was barely released last night that Greek politicians rushed to interpret it each in their own way. The president of the Council of State, Kostas Menoudakos, had to issue a statement within a couple of hours to clarify that:
  1. ERT TV and radio stations will continue to operate as they are. A special administrator will be appointed and will take over management responsibilities. This special administrator will have authority to keep existing staff or to sack employees as he/she deems appropriate. 
  2. A new public broadcasting agency must be established as stipulated by the common ministerial decision. 
  3. ERT's musical ensembles, its symphonic orchestra and the magazine "Radio and Television" are not covered by the terms of the Council of State ruling. 

So is ERT still operating as a legal person? As a public broadcaster? Do its staff still have jobs? Does it still have a symphonic orchestra? To understand this better, let's look in detail at the various provisions of common ministerial decision OIK 02/11.06.2013. We are inserting under each item the commentary provided by lawyer @xasodikis and the legal department of the Movement for Liberties and Democratic Rights of Our Times.

It must be noted first of all that this is a temporary ruling and not a judicial decision. The Council of State is due to meet again on 29 September 2013 in order to examine the whole of the common ministerial decision. This means that, for the time being, the Council of State simply acknowledges that the employees' demands may not be unfounded, not that they are well-founded. Furthermore, the ruling is to be enforced with immediate effect, meaning that ERT should already be broadcasting again - even though the government is still to enforce this decision and claims that it does not change anything with regard to the shutdown of ERT.

Now, in terms of individual items of the ministerial decision [1]:

Article 1, Paragraph 1: The legal person ERT A.E. and all its subsidiary companies are abolished.
The Council of State ruling does not refer explicitly to this provision. For @xasodikis, this means that, right now, there is no legal person named ERT. The MLDROT concurs but adds that the legal person is now the Greek State, which has an obligation to resume broadcasts. @xasodikis notes however that the Council of State ruling specifies that "a public broadcaster" should resume broadcasts and that the Greek State is not a public broadcaster. So who should be broadcasting? We do not know.
Article 1, Paragraph 2: All ERT activities are suspended with immediate effect until a new public broadcasting agency is formed. This includes radio and television broadcasts, publications, websites and all other activities.
The Council of State ruling does not cover publications and "other activities", as specified by Mr. Menoudakos. This may or may not mean that ERT's musical ensembles and magazine, as well as any other activities of its subsidiary companies, are disbanded, depending presumably on the interpretation of the Council of State ruling as to article 3 below.   
Article 2, Paragraph 1: All ERT assets and liabilities are transferred to the State, represented by the Ministry of Finance.
The Council of State ruling does not refer explicitly to this provision. For @xasodikis, this means that right now all ERT assets are owned not by ERT but by the State. The MLDROT does not comment explicitly on this point but seems to concur by stating that the legal person in charge of broadcasts is the Greek State itself (see above, article 1 § 1).
Article 2, Paragraph 2: The State takes over all ERT rights and obligations, meaning specifically that a) Former ERT assets are henceforth exempt from any form of taxation, b) ERT frequencies will remain inactive until a new broadcasting agency is established, and c) Responsibility for any legal cases involving ERT are transferred to the State.
The Council of State ruling does not refer explicitly to provisions a and c. It does however explicitly suspends enforcement of provision b, although it remains unclear who should be broadcasting (see above, article 1 § 1). 
Article 3, Paragraphs 1-3: All work contracts (open-ended, fixed-term, consultancies etc, including ERT personnel seconded to other State agencies) are revoked with immediate effect and personnel are entitled to adequate severance pay.
The Council of State ruling does not refer explicitly to this provision. For @xasodikis, this means that the sacking of all ERT staff still stands. For the MLDROT however, there is no issue of sackings as ERT staff have received no individual end-of-contract notification or any form of severance pay. In other words, for the MLDROT, ERT staff are currently employed by the State at large instead of being employed by a specific agency, namely ERT. Furthermore, for the MLDROT, the State cannot proceed with individual or mass sackings under the status quo outside general rules that govern the sacking of civil servants without breaking the law. 
In short, the Council of State ruling is leaving a lot of confusion in its wake. So much confusion, actually, that Council of State advisor Spyros Paramythiotis just suggested to the ERT employee union POSPERT to file a request for clarification to the Council of State...

Update 19:30 EEST: The Council of State just issued some clarifications to its ruling:

  • The Ministers of Finance and Information have authority to appoint staff to the interim broadcaster which will be operating until a proper new public broadcasting agency is established. 
  • Staff for this interim broadcaster can be selected from any agency, including ERT itself but also any other public or private agency. 
  • The staff will be expected to run all radio and television services. 
  • The interim broadcaster administrator, which has been appointed by the government to liquidate ERT, will decide how many employees are needed and the nature of the broadcasts. 
  • The government's decision to sack all ERT staff as of 11 June 2013 still stands. 

According to reports, the Ministry of Finance is working on a plan to get an interim broadcaster up and running with a total of 30 (thirty) staff members recruited on 2-month consultancy contracts. The staff will be expected to run a basic common programme for all channels with three news bulletins per day.

Update 23:25 EEST: The president of the Council of State denied that the above clarifications came from him, saying that they came "from other legal circles."

Update 19/06/2013 midday: The Athens-Macedonia News Agency is coming under heavy criticism for publishing the alleged "clarifications" yesterday and claiming that they came from the President of the Council of State. The general consensus seems to be that circles close to the government sought to manipulate the ruling and public opinion by releasing a bogus message. AMNA has not issued a statement on the matter yet.

Update 19/06/2013 05:00 pm: AMNA just issued a statement about the Council of State "clarifications". It reads:
The AMNA article titled "New clarifications about the ruling issued by the president of the Council of State, Mr. Menoudakos, regarding ERT" is the product of journalistic investigation and is signed by one of our editors, who has our full trust.
Not publishing it would have clearly been censorship, a practice which goes against journalistic ethics.
Besides, the messenger is never responsible for the contents of the message...

[1] Two other provisions of the common ministerial decision, which are not taken up in the Council of State ruling, are: 
Article 4: The ERT board and the boards of any subsidiary companies are suspended. 
Article 5: No State fees will be perceived from the suspension of ERT operations until a new broadcasting agency is established. 

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