“The liquidation of Telewizja Polska”, which in practice did not occur, or why the resolution passed singlehandedly by Bartłomiej Sienkiewicz is null and void because it grossly violates the law and was aimed at circumventing the law.
There are probably no more doubts that the original plan to seize control over the public media ended up in violating the law and the 2016 ruling of the Constitutional Tribunal. This has recently been confirmed by, among others, Prof. Marcin Wiącek, the Ombudsman and Prof. Ryszard Piotrowski, a constitutionalist. For this reason, Bartłomiej Sienkiewicz has decided to take a one-man resolution to liquidate the public media companies. The Minister claims that as the representative of the sole shareholder of the Company, i.e., the State Treasury, he has the right to act as an owner and no one can prevent him from doing so. However, this is an obvious misunderstanding.
Firstly, the Minister’s very announcement indicates that he has opened the liquidation of the Company due to the President’s veto and the threat of insolvency, and besides, in general, one can close the liquidation whenever one wants. However, the Minister is confusing legal concepts. If there is a threat of insolvency, it is possible to apply to the court for the restructuring of a company and, in particular, for restructuring proceedings, the aim of which is a multi-faceted repair of the company. After all, the company has employees, creditors and debtors.
But that’s not, what it was about. There’s probably no one who doubts that the aim of the operation was the takeover of the Polish Television by a liquidator appointed by the Minister in order to remove the Management appointed by the National Media Council. And this is where the problem arises: the task of a liquidator is to liquidate the entity, and therefore to completely wind down its operations and remove the Company name from the register. This is also the meaning of the phrase used in every resolution recorded by the notary public that the General Meeting ‘dissolves the Company’. Yet this is not going to happen, and even in the news broadcast “19:30” was reassuring that nobody is going to close down Polish Television. Moreover, starting from 27 December 2023, all documents and the website of Telewizja Polska should contain the annotation: “Telewizja Polska in liquidation”. And since this is information is not there, i.e., it clearly constitutes an invalid apparent legal action.
However, the problem is even greater. Namely, Telewizja Polska was established not by an ‘ordinary’ owner, but its establishment was guaranteed by Article 26 (2) of the Broadcasting Act of 29 December 1992. That is to say, its establishment is provided for by the Act, which OBLIGATED the Minister of the Treasury to establish it (Article 64, paragraph 1, point 1), but not to liquidate it, as the company performs a specific mission and pursues the objectives set out in the Act in Article 26(2). This view is also shared by Professors S. Piątek, W. Dziomdzior and K. Wojciechowski: ‘the Polish legislator adopted in 1992 a multi-entity model based on both of the criteria mentioned above, providing for the creation of a separate public television entity (Telewizja Polska) with a statutory guarantee of the existence of company branches, nationwide and supranational public radio (Polskie Radio)’.
The view of the impossibility of dealing with media companies by the owner (the State Treasury) as with any ordinary companies was raised in his application to the Constitutional Tribunal of 24 March 2016 by none other than Adam Bodnar: ‘it should be emphasized that (…) the granting of competences to the National Broadcasting Council with regard to the staffing of the management board and the supervisory board was due to the desire to make public television companies independent as joint-stock companies from the State as their owner’. And Adam Bodnar not only supported this, but also quoted the correct resolution of the Tribunal of 13 December 1995 (ref. W 6/95), in which the Constitutional Tribunal emphasized that media companies are not of the same nature as profit-seeking capital companies. And even more! That they are not similar to other State Treasury companies in terms of their mission! Ergo: all the provisions of the Commercial Companies Code (including, in particular, on liquidation) cannot be applied to them. Moreover, according to Article 29 (1a) of the Broadcasting Act, members of the National Media Council have the right to participate in the General Assembly of Shareholders. And it seems that someone forgot to notify them.
