Decision on "national frequencies" without evaluation of mandatory criteria
The decision of the REM Council on the allocation of "national frequencies"[1] is disputed due to the non-application of one of the mandatory legal criteria - "respect for regulations and ethical media standards", but also because of how the Law on Electronic Media and the REM Rulebook govern the decision-making process.
Based on Article 92 of the Law on Electronic Media from 2014, the criteria for deciding on the allocation of frequencies must be, among other things, "measurable". The REM Rulebook from 2016[2] explicitly provided that the Regulator evaluates the fulfilment of four criteria.[3] The fact is that neither the Law nor the Regulations of the REM have provided an evaluation procedure, but only that a majority of the Council's members make decisions. At the same time, neither the REM Council as a whole nor the Council members individually need to evaluate each of the prescribed criteria.
If the REM decision-making system were to be applied in other areas, it would be the same as if the Public Procurement Commission should decide based on the criteria of the lowest offered price, the length of the product warranty and the quality of previously performed work, and then, by majority vote, it could choose the most expensive supplier, with the weakest warranty and a large number of previous cases of breach of contractual obligations.
When the Law was adopted, Transparency Serbia tried, through proposals at the public debate and amendments for the parliamentary debate, to influence the resolution of this problem.[4] The amendments were submitted to all parliamentary groups. The amendment for Article 92 was proposed by Vesna Marjanović and Nataša Vučković. However, only 14 deputies voted for the proposal (184 present did not vote).[5]
The proposal of the TS, which is still valid, provided the obligation to prescribe the method of scoring according to each of the competition's criteria in the REM rulebook. As TS warned at the time, "If there is no obligation to score according to the prescribed criteria when making decisions by the Regulator..." the decisions "will depend to a large extent on the subjective assessments of the Council members and it will be much more difficult to challenge them due to the way the criteria were applied in practice." However, the participants of the current competition who want to challenge its outcome have strong evidence that the decision was not made according to the rules, which the court can hardly ignore. It is about the open announcement of the president of the REM Council[6] that one of the mandatory criteria will not be applied at all.
[1] http://www.rem.rs/sr/arhiva/vesti/2022/07/saopstenje-saveta-rem
[2] REGULATION ON MINIMUM REQUIREMENTS FOR THE PROVISION OF MEDIA SERVICES AND DECISION-MAKING CRITERIA IN THE PROCEDURE OF ISSUING LICENSES FOR THE PROVISION OF MEDIA SERVICES ON THE BASIS OF A PUBLIC COMPETITION ("Official Gazette of the republic of Serbia", no. 46/2016)
[3] 1) to what extent it follows from the proposed program concept that the applicant would publish a high-quality and diverse program; 2) to what extent has the applicant provided or made it likely that he will provide appropriate conditions for the publication of the program from the proposed program concept; 3) whether the applicant complies with regulations and professional and ethical media standards; 4) whether it can be reliably determined who has control over the applicant in terms of the law governing the protection of competition.
[4] https://www.transparentnost.org.rs/index.php/sr/aktivnosti-2/pod-lupom/4854-amandmani-na-predlog-zakona-o-elektronskim-medijima
[5] http://www.parlament.gov.rs/upload/archive/files/cir/doc/stenobeske/2.%20avgust%202014..docx
[6] https://rs.n1info.com/vesti/zekic-ovo-je-potpuno-novi-konkurs-necemo-gledati-sta-je-ko-prethodno-radio/
