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Documents related to the competitions for licensing radio and TV operators in Bulgaria issued by the Council for Electronic Media

Bulgarian Media Coalition vs. the Council for Electronic Media

First Instance– administrative case No. 132/2007, Sofia City Court, Panel III-D

Request:
In summer 2006, the Council for Electronic Media (CEM) took a series of decisions for initiating competitions for licensing radio and TV operators in Bulgaria. In this regard CEM adopted a series of subsidiary regularions, necessary for the appropriate process – Rules for Conducting Competitions, Methodological Guidelines for Preparation of Competition Documents, Methodology for Assessment of Candidates, etc.

In this regard on November 11, the association Bulgarian Media Coalition filed six requests to get access to different categories of information.

Refusal:
With a decision as of 23 November 2006, the CEM provided part of the requested information. The requestor received the following information: a list of candidates who had applied for licensing as radio and TV operators; Rules for Conducting Competitions; Methodological Guidelines for Preparation of Competition Documents and Methodology for Assessment of Candidates. The refusal included two categories of information, namely:

Information about the discussions of the members of the CEM, preceding the adoption of the four acts;
Information contained in the competition papers.

Information about the discussions was refused to be provided on the grounds stipulated by Art. 13, Para. 2, Item 1 of the APIA, as information regarding the preparation of the act and not possessing significance of its own. As to the competition papers, information was refused to be provided on the ground that the competition papers were to be bought by the candidates for licensing, that pursuant to Art. 17, Para. 2 of the APIA, information that might lead to unfair competition among business persons was not to be disclosed, and that the candidates to obtain license were attaching a declaration for confidentiality with regard to the information contained in the competition papers.

Complaint:
The refusal was challenged before the Sofia City Court (SCC). The complaint stated that Art. 17, Para. 2 of the APIA could not be applied as the request was not for the competition papers of the individual candidate (the business person), and thus it was impossible that provision of the information would cause unfair competition between the persons. Indeed, unfair competition would have been caused if the papers submitted by a particular candidate had been requested during the competition process. It was also explained that the requestor had requested the information contained in the competition papers not for the application forms.

Developments in the Court of First Instance:
The case was heard at an open court session on October 11, 2007 and scheduled for judgment.

Court Decision:
With a decision as of October 19, 2007, the SCC repealed the refusal to grant the information contained in the competition papers approved by the CEM and obliged the institution to provide access to the afore mentioned information. In their judgment, the magistrates noted that they would not accept the argument of the CEM that “the information contained in the competition papers” was the property of the person who bought the competition papers. Justices also stated that the requested information dealt with application documents approved by the regulating body (CEM), not with the information provided in the filled papers by the candidates. As to the discussion papers, preceding the adoption of the disclosed rules, guidelines, and methodology by the CEM, the court panel assumed that Art. 13, Para. 2, Item 1 of the APIA was applicable. Finding that the two-years term for protection of those data had not expired according to Art. 13, Para. 3 of the APIA, the court rejected the complaint in that part.

Court Appeal:
The decision of the SCC in its part which had rejected the complaint was appealed in the Supreme Administrative Court (SAC). The appeal stated that the CEM was a public-law body which classified it as an obliged body under Art. 3, Para. 2, Item 1 of the APIA. Article 13, Para. 2 item 1 of the AIPA was not applicable to this category of subjects, and this was also reflected in the litigation practices of the SAC. Besides, pursuant to the special law– Law on Radio and Television (LRT), the principle of transparency and publicity shall be applied to the discussions of the CEM (Article 36, item 2 of LRT). That provision was special with regard to Art. 13, Para. 2, Item 1 of the APIA and consequently derogated it.