Independence of the Regulatory Authority of Electronic Media (hereinafter: Regulator) can be observed from the aspect of functional, financial, and organizational independence.
Functional independence
Functional independence of the regulatory authority is primarily related to the fact that the Regulator does not take instructions from any other authority in the process of performance of their activities.
However, the Law on Electronic Media classifies the Regulator into holders of public authority who perform “entrusted affairs”.
In accordance with the Law on State Administration, in the performance of entrusted affairs of the state administration (most of the Regulator’s affairs are classified into this category), the holders of public authority have the same rights and responsibilities as the state administration bodies, and the Government and state administration bodies “retain the responsibility for the performance of state administration affairs even after their delegacy”, and “if the public authority holder should fail to start the performance of entrusted task or fail to perform the task in a proper and timely manner even after multiple warnings, the supervisory body of the state administration shall take over the performance of affair, for no more than 120 days”.
The Regulator is an independent organization in the performance of affairs from their scope of work in the sense that these affairs have the character of public, but original authorities. Therefore, such affairs are not the entrusted affairs of the state administration bodies where the two-stage in decision making of bodies deciding on an obligatory legal remedy for the competent ministry is always anticipated.
The Regulator is also obligated, before the adoption of the regulation, to acquire an opinion on the constitutionality and legality of the regulation from the concrete ministry, and with that opinion the ministry shall give their explained proposal to the Regulator of “how to harmonize the regulation with the Constitution, the law, other laws and the general act of the National Assembly and Government”, and should the Regulator fail to act in accordance with this opinion, the ministry is obligated to initiate proceedings for the cancellation of the act before the Government or the National or the Constitutional Court.
The introduction of such provision into the law introduces significant limitations of the functional and thereby essential independence of the Regulator, bearing in mind that the obligation of acquiring an opinion about the constitutionality and legality refers exactly to the entrusted affairs, i.e., the public authorizations used for the realization of the regulatory function in the domain of electronic media (in which affairs the autonomy and independence of the regulatory authority should primarily be reflected).
A step back has been taken with the adoption of this decision in relation to the previous Broadcasting Act. Namely, article 8 of the Broadcasting defining the jurisdictions of Agency prescribed which affairs are the entrusted affairs, but it did not prescribe the obligation of acquiring an opinion on the constitutionality and legality of the regulations which the Agency is to adopt.
This type of decision represents an exception in the domestic legal system, seeing how no other law governing the position of independent regulatory authorities (Securities Commission, Commission for Protection of Competition, Energy Agency) provides an obligation for those bodies of acquiring an opinion on the constitutionality and legality for the regulations that they adopt.
Organizational independence
Employees of the Regulator’s professional service have the status of public officials, so regulations related to the position of employees in the state administration are also applied to their rights and obligations, which additionally reduces the flexibility in the Regulator’s work organization and indirectly affects the capacity of the Regulator in the performance of numerous affairs entrusted by law.
Implementation of this regulation has the following consequences:
a) Regulator’s internal job organization and systematization has to be based on the principles determined by a decision of the Republic of Serbia Government, and the act on the Regulator’s internal job organization and systematization cannot come into effect until the Government of RS gives its consent;
b) employees of the Regulator’s professional services must have the titles and occupations of those employed in the state authorities (as those with a university degree: senior advisor, advisor, independent expert associate, senior expert associate and expert associate; as those with a college degree: senior associate and associate; as those with a high-school degree: senior officer and officer), the requirements for acquiring these titles, the requirements for promotion and other issues in connection with the rights, obligations and responsibilities from the work relation have been prescribed by law governing the position of civil servants;
v) employees of the professional services of the Regulator as civil servants must be divided into salary bands, and their earnings (salary) must be determined in a manner provided by the law governing salaries of civil servants and employees. This means that the base for calculation of salary is determined for each fiscal year, following a proposal by the RS Government, by the Budget Law of the Republic of Serbia and is multiplied by a coefficient which depends on the salary band which the professional service employee has been classified into.
Also, the implementation of this provision violates the functional and financial independence of the Regulator, which is proclaimed by article 5, paragraph 2 of the Law on electronic media.
As mentioned already, the functional independence of the Regulator, among other things, implies the Regulator’s authorization to independently determine the conditions necessary for the performance of affairs which they have been authorized by law to perform and to organize their method of work and internal organization accordingly. It is precisely with the application of article 5, paragraph 5 of the Law on Electronic media that the Regulator is denied such possibility, seeing as how the Regulator is forced to organize their method of work and internal organization in accordance with the relevant act of the RS Government and with its consent.
The stated provision significantly extends into the financial independence of the Regulator, considering that its implementation implies that, along with the existence of appropriate control over the Regulator’s spending (approval from the National Assembly of the financial plan, annual audit by an independent authorized auditor, consent of the RS Government for the act determining the fees for the right to provide media services), it additionally affect their autonomy by determining the earnings of the Regulator’s professional service employees on the basis of a base proposed for each fiscal year by the RS Government within the RS Budget Law. This decision is also contrary to article 34, paragraph 2 of the Law on Electronic Media which provides that the Regulator shall independently determine their own earnings and employment policy through a financial plan for each fiscal year.
Like the Regulator’s obligation of acquiring the opinion of constitutionality and legality, this decision represents an exception in the domestic legal system, since employees in other regulatory authorities (Securities Commission, Commission for Protection of Competition, Energy Agency, and the like) don’t hold the position of public officials.
Financial independence
The Regulator is financed based on the financial plan adopted for each year by the Regulators Association, and the National Assembly is required to approve the plan by no later than the 1st of November of the current year for next year for the plan to be implemented.
Should the National Assembly fail to approve the financial plan, the financial plan from the previous year is implemented. Considering that the Assembly has no deadline for acting, non-consent may place the Regulator into an awkward position – into a regime of temporary finance.
Also, the Regulator’s funds are created from fees collected from media service providers, and their amount is determined by a subordinate legislation approved by the Government, which leads to a similar problem as with Assembly’s consent for the financial plan.
