30. 05. 2012

ANEM INITIATIVE FOR ASSESSMENT OF CONSTITUTIONALITY OF THE LAW ON CINEMATOGRAPHY

Despite ANEM's strong opposing, supported by other media organizations and regulatory bodies - RBA and RATEL, the Parliament of Serbia, adopted the Law on Cinematography on December 26, 2011, in the text that included provisions that were in direct contrast to the valid regulations in the field of broadcasting and in the Media Strategy and whose application could drastically harmfully affect the functioning of the media sector and electronic communications in Serbia.

Disputable provisions of the Law provide that incentives for development of cinematography, among other things, are secured by resources that RBA and RATEL are charging from broadcasters and telecommunications operators and which represent a guarantee of financial independence of these sectoral regulators. Specifically, Article 19 Paragraph 1, Points 3 and 4 of the Law on Cinematography stipulates that the stimulation of domestic film industry shall be secured by funds taken from regulatory bodies, namely and to as much as 20% of funds generated from fees paid by broadcasters to the RBA for the right to broadcast program, if that amount does not exceed the difference between total revenues and total expenditures of the RBA, and even 10% of the funds generated from the fees that public telecommunications operators pay to the Republic Agency for Electronic Communications (RATEL). Under this Law, it is provided that these funds be paid into a separate account of the Film Center of Serbia.

Protecting the interests of its members and all electronic media and considering that the Law on Cinematography may have serious ill-effects not only on their functioning but also on the independence of regulatory bodies in the broadcasting sector, on May 30, 2012, ANEM filed the initiative with the Constitutional Court of the Republic of Serbia for the assessment of the constitutionality of the disputed Article 19, Paragraph 1 Points 3 and 4 of this Law, with a proposal to the Constitutional Court to assertain that the disputed provisions of the Law on Cinematography are not in accordance with the provisions of Articles 18, 20, 46, 50, 51 and 194 Paragraphs 1 and 3 of the Serbian Constitution.

In the Initiative, ANEM indicated that the disputed provisions of the Law on Cinematography undermined the unity of the Serbian legal system, which was inconsistent with the Constitution, and that the Constitutional Court had insisted, in several of its earlier decisions, on the uniqueness of legal order and unacceptability of practice that the fundamental solutions, provided by the systemic rules governing specific fields, were violated by specific laws, which the Broadcasting Law and the Law on Electronic Communications certainly were in their fields. In addition, the disputed provisions are undoubtedly incompatible with the constitutional guarantees of freedom of opinion and expression, media freedom and right to information, especially the freedom of opinion and expression through radio and television, media freedom in broadcasting field and the right to information through radio and television, as they assume violation of the financing system of regulatory bodies competent for broadcasting, which is nothing else but interfering with the independence of these regulatory bodies and making the funding mechanisms of the regulatory bodies dependent on ad-hoc decisions of authorities.

ANEM also pointed out that these controversial provisions were in direct conflict with the provisions of Article 66 of the Broadcasting Law, which stipulated the criteria for determining the amount of fees, none of which was the providing of funds for encouraging local cinematography. The disputed provisions are also conflicting with the provisions of Article 34 of the Broadcasting Law, which provides that funding of the RBA is done in accordance with the financial plan brought by the RBA Council for each year,  and which is used to establish total revenues and expenditures of the RBA, as well as a reserve for incidental expenditures. This practically means that the plan is adopted with the aim to cover the costs of regulation and not with the aim of providing any percentage of difference between revenues and expenditures of the RBA.

ANEM particularly pointed out that the disputed provisions of the Law on Cinematography was not in accordance with the valid provisions of the Broadcasting Law and the Law on Electronic Communications, which provide for a different purpose of any surplus realized by regulators. By giving such surplus to the Film Center of Serbia, the RBA would violate the provisions of its core Law - the Broadcasting Law - which stipulates that, if it is established by the annual accounting of revenues and expenditures of the RBA that the total revenues exceed total expenditures, the difference shall be paid to the account of the Republic of Serbia's budget and shall be allocated, in equal shares, to the promotion and development of culture, health, education and social protection. Similarly, the proposed solution on the designation of any surplus is also in direct conflict with the Article 27 of the Law on Electronic Communications, which provides that the difference between revenues and expenditures of the Agency for Electronic Communications (RATEL) shall be paid into the budget for the purpose of the promotion and development of electronic communications and information society.

In anticipation of the Constitutional Court's decision, ANEM will continue to advocate for the elimination of all contradictions in the legislation that are causing serious disturbances in the functioning of media, and appeal on the government to comply with the commitments made with the adoption of the Media Strategy.

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