25 June 2020
A quarter of the Members of Parliament filed a petition for posterior norm control by the Constitutional Court, alleging that the government decree establishing the merger of the companies mentioned in the title violates the Act on Unfair Market Conduct and the Prohibition of Restrictions on Competition. According to the petitioners, the decree is also in conflict with the Fundamental Law because the government’s arguments regarding the existence of a public interest regarding the concentration are unfounded and therefore they do not meet the condition for classification as of national strategic importance. The classification as of national strategic importance had the consequence that the concentration did not have to be notified to the Hungarian Competition Authority, therefore the Media Council did not participate in the procedure as a competent authority to examine whether at the relevant market for media content services the enforcement of the right to diverse information are guaranteed by the post-merger level of the independent sources of opinion. According to the petitioners, this violated the diversity of the media, including the provision on the diversity of the press enshrined in the Fundamental Law.
In its decision, the Constitutional Court emphasized that the merger of media companies, i.e. their fusion in the economic and competition law sense – regarding the establishment and the licensing of which the government has wide-scale powers due to its competence concerning economic policy –, does not necessarily imply the violation of the diversity of the press. Defining government policy is the task and responsibility of the government, and part of this is defining economic policy.
In the decision of the Constitutional Court, essentially two constitutional values were weighed: on the one hand the public interest serving as the basis for the classification by the government, and on the other hand the constitutional interest related to the diversity of the press. In connection with the former element, the Constitutional Court has stated that it is beyond its competence to substantively evaluate what the government considers to be in the public interest based on the aspect of national strategy; the Constitutional Court could only review it in extreme borderline situations, however, the present case cannot be considered as such. In the present case, there may be a reasonable justification, based on the peculiarities of the media market, for a more concentrated media activity in a given market segment. Assessing whether a particular investment is of overriding public interest from the point of view of the national economy can basically be considered a decision of economic policy, which is primarily within the scope of the government’s political responsibility. In the course of weighing the diversity of the press as a constitutional value, the Constitutional Court found that in the case under review the petition does not allege a fundamental right restriction, i.e. a violation of the subjective side of the fundamental right to the diversity of the press, it complains about a potential reduction in the level of objective institutional protection, resulting in a lower level of the constitutional obligation of protection. The petitioners did not refer to any other circumstance from which it would reasonably follow that the freedom and diversity of the press and the conditions of free information and orientation necessary for the formation of a democratic public opinion would not be ensured in Hungary in general.
In view of all this, the Constitutional Court found that the contested section of the government decree was not unconstitutional, therefore it rejected the motion for posterior norm control.
Justice Ágnes Czine attached a concurring reasoning and Justices Balázs Schanda and Péter Szalay attached dissenting opinions to the decision.