ERT: Legal Framework

interviewIt was a sunny and very hot Monday afternoon, when I found myself ringing the bell of Dr. Giorgos Katrougkalos‘s office.

The previous week the government had announced the first job opportunities in EDT, the transition company replacing ERT, heating up again the public discussion about the legality of its actions.

The whole story was starting to get very complex; I realized that we had to deal with the shutdown of ERT, the legality of EDT and the new bill for NERIT, the official successor of ERT – three different forms of organisation of the Greek public service broadcaster that are sure to cause many legal challenges.

It was the right moment to involve a man of the law in the discussion.

Walking down the infamous Patriarchou Ioakeim street in Kolonaki, the elite district of Athens centre where Dr. Katrougalos’ office is located, I was already well aware that I had a lot of questions to ask.

I was offered a cup of water to beat the eternal Greek summer, while my colleague Vasilis Katsardis set up the camera.

My first question came automatically: What is the constitutional basis for the press and for public broadcasting in Greece?

The gentle, serious man in front of me began to unveil the story.

Constitution Articles on Public Broadcasting

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In the Constitution we have two relevant articles, one general regarding the freedom of expression and Article 15 which is very specific to the functioning of public radio and television. Article 15 does not provide explicitly for the establishment of a public radio and television but the majority of constitutional scholars considers that their establishment is a precondition for ensuring the goals that this Article prescribes, i.e. the independence of news and high quality of programmes. We always had public radio and television in Greece. That is also the norm across Europe, the European common legal civilization. And I think this is necessary because we need a public broadcasting system that is based not on commodified criteria but on criteria related to civilization and the independence of political communication.

Listening to him, I wondered if at any point there was a more specific article or paragraph describing the framework and the mission of the Greek public broadcaster. He replied instantly:

The provisions of the Constitution of 1975

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We also had a provision in the Greek Constitution of 1975 concerning Greek public radio and television that was a good provision. It still provides that the Public Radio and Television must ensure independent news and also programmes of high quality. So the rationale for the existence of public radio and television is twofold: first, to guarantee that we have free and independent information and second, a programme of high quality independent of commercial interest.

Having in mind that we have already narrated the history of ERT, I pointed out that it was essential for our readers to understand the legal framework in which the public broadcaster operated all these years. He was more than pleased to summarise it.

The legal framework of ERT in the early years

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The Greek television has begun as a branch of the Military Services of Greece. Then the dictatorship in the seventies created also a political branch of the Greek television in the legal form of a foundation. Theoretically this foundation included representatives of the civil society, of artists, of journalists in its directorate. The reality is that, as everything under the dictatorship, it was very closely directed and controlled by the military, the colonels, the dictators. Then, after the shift of the regime and when democracy came back to Greece, for a short period television continued as a foundation. Then it changed its legal form to a Société Anonyme (in which the state was the only shareholder, and thus), a Public Enterprise, theoretically again, governed by commercial law. Again the reality was different. Its direction was controlled by the Ministry of Press; it was actually a kind of a long hand for a public propaganda of every government in Greece.

It was then, he pointed out to me, that the Greek audience realized for the first time that the Greek public broadcaster and meritocracy didn’t go holding hands.

The bad legacy of ERT

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The reality is that even during the democracy the direction of both radio and television continued to be strictly governed by the political party in power. There was not any kind of independence and objective meritocratic system for the nomination both of the technicians and the journalists in public radio and television. This has left a kind of undemocratic legacy.

Didn’t that change, I asked, when the European Union forced Greece to deregulate the market in broadcasting services? When the private channels came up, what happened then?

The end of the public monopoly in broadcasting

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What followed was a decision of the European Court of Justice that declared that this kind of public monopoly was against the competition rules of the European Union. With this milestone a new era began for public radio and television that now had to compete with private channels. What is important is that this legacy of patronage and clientelism characterizes also the relationship of the Greek state with the private broadcasters. They did not have and they still do not have a licence according to the Law. Most of them operate only based on temporary licences. Actually the whole landscape of radio and television especially regarding the private ones is practically without a very strict accordance to the existing legislation. So, if we had to describe it in a few words, with regard to public radio and television what prevails is its strict dependence on the party in power. With regard to the private channels it’s a kind of legal anarchy. That is again something very well within the interest of the party in power because in this state of legal anarchy it is very easy to have privileged networks of patronage with the new patrons of the private channels.

The competition between the public and the private broadcasters in my opinion clearly led to ERT’s decline in the audience’s preferences. It was obvious to me that the audience’s disappointment with ERT’s programme started to grow as the private channels developed a powerful and appealing lineup of programmes. He agreed.

The argument of ERT’s market share

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One of the arguments against former ERT was exactly its small impact on the audience. Its numbers were not as high as those of private channels. One could say that if we want programmes of high quality, that maybe sometimes results in programmes that don’t have a huge audience. Who is listening to opera, for instance? However I’m not buying this argument. I believe that public radio and television in order to be effective must be open to the broad masses of the people. I think the former Greek Broadcasting Corporation clearly failed in this respect. However, to their defence I must say again that in this short period that ERT had been relatively more independent from the public authority (the period between the two elections) they have shown that they could raise their numbers. I think this is a clear sign that if they had been left without this immediate interventionism of the government they would have succeeded much better even with regard to the numbers. And of course, it is still to be seen if the new public television is going to have better numbers. I clearly doubt that, if one sees how they are programming their institutional features and what model exactly they have in mind.

Nevertheless, the masses’ distancing from ERT and the evolving corruption in ERT’s environment and work force has opened up a discussion for a brave restructuring of the Greek public broadcaster. The first attempt was a draft by Ilias Mosialos, a former Member of Parliament of the Socialist Party PASOK, who as Minister of Press in 2011 tried to issue a bill on ERT’s restructuring. It had failed to gain Parliament’s attention, though and never even came up for consideration. It was the times of the first Memorandum agreement between the Troika and the Greek government by Giorgos Papandreou and everything else just didn’t matter. The discussion had begun, though.

Calls for ERT’s reform

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With regard to its independence and the overall quality of its broadcasting ERT was not highly esteemed by the Greek audience. We had a feeling that this legacy of patronage and clientelism has imposed a heavy burden even on the journalists who wanted to be really independent and satisfy the criteria of the constitution imposed on public television. On the other hand this understanding that the Greek Broadcasting Corporation did not function according not only to the Constitution but to what the average Greek was expecting from it, has become so imposing that the political elites also embraced, theoretically, this demand for a new independent ERT. So there were a number of statutory proposals, a draft that had been written during the previous government that tried to change this dependence from the political authorities. According to my opinion this was not what ERT really wanted. It was in my opinion a very technocratic statute that did not create genuine social participation in the operation of television and radio. If one compares even this modest effort of reform with the situation, for instance, in the German public television, it is easy to find that there is not any kind of direct participation of representatives of journalists or of artists in the operating of television, as is the norm in many countries in Europe, especially where the legal framework has been created during the sixties, which was an era of public participation in decisions, worldwide and especially in Europe.

The continuous discussion on ERT’s reform proved to be a flexible basis for the government’s decision to shut down the public broadcaster on 11 June 2013. What remained to be discovered were the causes that led to this event. Dr. Katrougalos had a concrete answer to suggest.

The causes for the ERT shutdown

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What led to the sudden death of Greek public television was not a concern for its improvement, but the agreement the Greek government has with its creditors, the infamous Memorandum agreement. It includes a heavy reduction of public servants. Because the government has not acted according to this agreement for a long time, it had to present to the creditors some easy reductions. Thus it has chosen ERT as an easy victim, for two reasons: first, because the number of public employees in ERT was practically equivalent to the number the Troika wanted to have fired. And the second reason is that the government considered that because of the bad legacy of the past, it would be easy to victimize the journalists and other personnel of ERT as corrupt, as being hired without a meritocratic system of nomination etc. It has failed, especially because it was easy to distinguish behind this façade of reform the real intentions of the government and secondly, because in the short period of time between the two elections of last year (in May and June 2012), ERT has presented to the Greek audience a new face – exactly because at this time, in the interregnum between the two elections, there was somehow a loosening of the strict political dependence of the journalists. They managed to become really independent. In this short period, the Greek Broadcasting Corporation competed very efficiently with the private channels. They managed to have one of the largest audiences on the night of the elections, and with this performance they have shown – I mean the journalists of ERT – that they were competent to present an independent face and that what hindered them from doing so were not their abilities but exactly this bad legacy of strict political dependence from the government.

It was the right time to clarify to us the complex sequence of legal events that led to the shutdown. Starting from the already infamous Act of Legislative Content (in Greek) or simply referred to as Legislative Act.

The Legislative Act

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The Greek Constitution provides that under exceptional circumstances, in a state of emergency, a natural disaster or something clearly unexpected, it is possible, instead of having a statuary law, to have a so-called Legislative Act by the government. These acts are not passed by parliament. The government can enact them just by a proposal of the Cabinet and the signature of the President of the Republic. After that, they have the force of law, and the only obligation of the government is to submit them for ratification to the Parliament after forty days. So, there is a constant practice of the government in order to avoid the public dialogue with Parliament and also to avoid an eventual differentiation of some of the Members of the Parliament who are part of the majority but have their own ideas about the obligations that the lenders have imposed on Greece. In this climate, the government has used this practice many times even where there are no such circumstances of emergency. Just in the past year they used it nineteen times. So, instead of going to Parliament and passing a law regarding what they conceive to be a better model for public radio and television, they have tried to commit a kind of institutional coup d’état by declaring that ERT would shut down six hours after a public declaration by the competent minister, the Minister of Press. After that, by a ministerial decision that was based on this Legislative Act, they have decreed the end of ERT without replacing it with any kind of alternative. They have, just like that, shut down radio, television and Internet broadcasting that had been ensured until then by the public organizations. This was clearly illegal, both with regard to the procedure – as I told you these Legislative Acts are not to be enacted under normal circumstances, but only in a state of emergency – and also and more importantly, for substantive reasons: because just like that the screens of the television suddenly turned black. We did not have what the Constitution imposes on the government: to ensure independent information and programmes of quality, irrespective of the needs of the market. And of course, this was something completely new for the European standards. There is not one European country that does not have a public system of radio and television, exactly because this necessity of independent information and high quality programming is not something unique to Greece but a general necessity of the European legal civilization. For this reason, we had a decision from the Council of State that has in a way contested the constitutionality of this decision.

The decision of the Council of State (in Greek) was the most controversial moment in this story. It triggered a government crisis, confused the Greek people and led to the appearance of EDT. What exactly had happened?

The Council of State decision

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The trade union of the workers of ERT has contested the legality and the constitutionality of this decision of the authorities before the competent court, which is the supreme administrative court, the so-called Council of State. The Council of State is going to examine this issue in the fall, in September or October, I don’t remember exactly. It has issued an interim decision because there was urgency with regard to the cessation of the functioning of the Greek public television. In this interim decision, the Council of State has abstained from declaring unconstitutional the whole project of the government, because this is going to be the main object of the court trial in fall. It has, however, declared contrary to the Constitution the situation during which there is not any kind of transmission of public news and other programmes, and it has ordered the government to re-instate the programmes of public radio, television and Internet broadcasting. The second thing contained in this interim decision, was a clear order to the government to re-open the frequencies of ERT. The government has not, according to my opinion, acted in conformity with these orders. It has tried to create a kind of a façade of conforming, initially by just presenting a sign of the new, according to government radio and television, and now by starting a programme by broadcasting some old movies and old programmes from public television. This was not what the Council of State has ordered. It has ordered the complete resumption of all programmes of public radio and television and most specifically of the news, because Article 15 of the Constitution clearly imposes, as one of the basic constitutional principles and goals, that public radio and television should serve the independent political communication. So, I clearly believe that the Greek government failed to act in conformity with this decision of the Council of State.

I grabbed the chance to ask if, in his opinion, there are other legal consequences deriving from ERT’s shutdown.

The consequences of the ERT shutdown

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I think that the cessation of ERT has many problems. I have referred previously to constitutional ones, but there are problems with regards, for instance, to how the personnel of ERT has been fired. The rules of Greek Labour Law have not been respected. The rules of the European legislation regarding collective dismissals have not been respected. So, I think that all these dismissals of the personnel are illegal, both with regard to the Greek Labour Law that provides full compensation before the termination of the labour agreement and also, they are a clear violation of this directive from the European Union which is related to collective firings.

The obvious thought crossed my mind that a long period of court trials is coming involving former ERT staff. He confirmed it.

The lawsuits by the ERT employees

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Now the workers are preparing their legal suits against these wrongful and illegal dismissals. It is not hard to predict that the majority of these lawsuits are going to be successful, because both on procedural and on substantive grounds the whole history of the cessation of the old ERT was clearly illegal. Justice in Greece is relatively slow but this procedure is faster than average. So, I hope that within the next year we are going to have decisions in these lawsuits, and I hope that the majority of the workers from the old public ERT are going to be vindicated.

Which will end up, I suppose, costing the Greek State a lot of money. Without even mentioning the claims that other companies and ERT’s previous contractors will make.

The fiscal cost of the ERT shutdown

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There is going to be a huge fiscal cost for the Greek state from this story. First of all, with regard to the compensations that the Greek state must pay to the former workers in ERT. There is another aspect: We had contracts between ERT and contractors or international agents that, of course, due to the cessation, can no longer be respected. So, I think that millions of Euros are going to be the cost to the Greek State because of this situation. This has not been foreseen, although everybody knew that ERT had this kind of contracts. Now, during the transitional period, the competent authority that tries to face this problem is not yet the new Radio and Television Corporation but the Ministry of Finance that acts as representative of the Greek state. After the completion of the creation of the new radio and television organization we are going to have a full transition of all these competencies and also of the claims of these contractors against it to new public broadcaster.

An obvious question came right to my mind. Does the Ministry of Finance, as a temporary competent authority, also have the right to use ERT’s copyright protected material in this transitional period and have it featured in EDT’s programme?

The copyrights issue

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If I now wanted to play the lawyer of the opposite side, the advocatus diaboli, I would say that this ministerial decision says that the Greek public is becoming the full proprietor of all copyrights and all property matter that ERT had, in the transitional period between the cessation of the old ERT and the creation of the new public television. So maybe there are issues of copyright. There are certainly moral issues. One of the creators of the movies (that EDT was playing during the transitional period), Roviros Manthoulis, has contested the use of his own movies saying that he doesn’t want to have any part of complicity with this effort of the government. However, I think the real issue is political and not legal. It is clear, according to my opinion, that the political issue is that the government failed to provide to the Greek audience this independent flow of information that the Constitution provides for.

He gave me the right pass to move on to the current discussion: the new bill for ERT’s successor, NERIT (New Hellenic Radio, Internet and Television, in Greek). What difference will it make? What are its key points?

The new bill for NERIT

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The basic innovation of the new bill was supposed to be the creation of an independent public broadcaster, i.e. the termination of these links between the Minister of Press and the public broadcasting organization. For this reason, symbolically, the new Vice Minister competent for radio and television is not the same as in the past but a former journalist. However, if ones looks at the institutional details most of that is a clear façade, as in the past. We will not have any kind of societal control and direct participation of civil society in the council of NERIT even after this transitional period, which as I said before, is completely controlled by the government. We are going to have, in the best of situations, a technocratic council that will try to operate the public broadcaster without any reference to its communication with society. Therefore, I think even this new institutional framework is going to fail.

For a very gentle man as Dr. Katrougalos that was a strong critique of the new bill. I asked him to extend his argument: Why does he believe the new bill is a façade?

Main argument against the new bill for NERIT

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The government has ensured that during the transitional first period of enactment of the law, the government itself is going to nominate the persons on this board, on this council of directors. So, at least during the first period of its operation – which is, of course, the most important, because during this period we are going to have the nominations of the staff of this new public radio and television – the government will be able to control completely the direction and all the subsequent procedures of nominations. That’s why I think, even with regard to this effort of setting up a new public television, we have actually a masquerade, a kind of a façade and not really what we would like to have as Greek people with regard to public radio and television.

The EBU though, reacted enthusiastically. Shouldn’t we count it as a sign of hope that something at least is going to change?

EBU and the new bill

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I think that the EBU does not realize the hiatus, the big difference between theory and reality in Greece. I don’t know if I have already mentioned that even in dictatorial times the statute that provided for public broadcasting said that three to seven representatives of artists and the society would be nominated into the council. Actually, these three members of the board have been puppets of the dictatorial government. Through the tricks I tried to describe before, especially during the transitional period, this is exactly what the new government aims to do. It aims to have a façade of theoretically independent institutions but in reality impose on them the same heavy burden of patronage and clientelism as in the past.

Fair enough, I said. I couldn’t stop myself asking him what in his opinion is a good model for the new organization.

The German model of public broadcasting

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According to my opinion a much better model, less technocratic and closer to the needs of society, would be something like the one in Germany where the public broadcasting stations have a council with representation of institutions of civil society. I believe that generally what Greece needs during this period are institutions of direct democracy, of direct participation of all interested persons and of society as a whole in the centres of decision. This is especially valid for public radio and television, with regards to its central role for the political apparatus.

What about the BBC that the government uses as a good example and the possible invitation of its executives to advise the new organization regarding its structure and operational framework?

He insisted that whichever public broadcasting model would be used as a reference for the new organization, in the end doesn’t matter at all. In his opinion, the problem will not be solved as it is broader and deeply political.

The collapse of the political system

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One cannot isolate the case of public radio and television from the broader political framework. What is happening now in Greece, is the collapse of the political system that all these years was relying on a network of clientelistic relations. That’s why even if the best theoretical model, the BBC model, were to be transposed into the Greek environment as it used to be and unfortunately still is, it would not result in a similar good system as in the UK. That’s why I think the reform of public television cannot be isolated. We need now a complete reversal of the old political system. We cannot have isolated, partial solutions. Either we are going to have a rebirth of democracy in Greece or we are going to have a kind of spiral of slow death, both with regard to the economy and to these political democratic issues.

That is when I realized that I would hear this argument a lot from now on. After all, this governmental action mostly affected democracy – as most of the actions during these years of recession.

The matter of democracy

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The real essence of the problem is that during these last three years a problem of economic crisis has transformed into a problem of institutional crisis and finally into a problem of democracy, of the genuine functioning of democratic institutions. I think that what the ERT incident clearly shows is the apex of this decline of democracy in Greece, both with regard to the procedure – that it was not parliament that took this decision, but actually the government in an autocratic and non-constitutional way – but also with regard to the substance of the issue that in a period when public dialogue is more necessary than ever, the screens of public television suddenly turned black. It is a problem of democracy and therefore, I think the only way to remedy this situation is a general democratic shift of the Greek society and the replacement of the actual political system that is collapsing by a new one that would leave behind these traditions like clientelism and patronage and would rely on institutions of direct democracy and genuine, not false representation.

It was a nice epilogue.

Packing our stuff and walking out of Dr. Katrougalos’ office, a significant thought occurred to me regarding our media diary.
We are now entering into the deep waters of the ERT story.

Its shutdown was just the departure point for a journey narrating the past, the present and the future of a nation in crisis.

Stay tuned.


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