Opinion of September 6, 2005 on the draft decree on dispute settlement proceedings

Opinion no. 2005-9 of September 6, 2005 on the draft decree implementing article 17-1 of law no. 86-1067 of September 30, 1986 and relating to the dispute settlement proceedings before the French Superior Audiovisual Council.

The French Superior Audiovisual Council's powers to settle disputes concerning the distribution of radio and television services, including the technical and financial conditions under which they are made available to the public, were extended by the Act of July 9, 2004. Both the French Superior Audiovisual Council and the Conseil de la Concurrence, in their opinions to the government on the draft legislation on electronic communications, had expressed the wish that this power be conferred on the French Superior Audiovisual Council, in the same way as other sectoral regulation bodies.

The aim is to enable the CSA to quickly resolve (within two or four months) conflicts which, if they were to persist, would lead to blocking situations prejudicial to viewers, publishers or broadcasters. The audiovisuel landscape, with the arrival of DTT and the emergence of new media, will only be able to develop harmoniously as of the moment when an efficient procedure for settling any conflicts between players is in place.
The Council's assessment criteria, set out in article 17-1 of the Act, are the same as those applicable to all its missions: respect for plurality in the expression of currents of thought and opinion, safeguarding public order, public service requirements, protection of youngsters, human dignity, program quality and diversity; objective, fair and non-discriminatory conditions for making program supplies available to the public, or contractual relations between a service editor and a distributor.
The Council's decisions taken in the context of dispute settlements will be enforceable and will, if necessary, lead to the modification of agreements and authorizations. They may be appealed to the Conseil d'État.
Article 17-1 stipulates that the procedures will be set out in detail in a decree to be issued by the Conseil d'Etat. This is in contrast to other regulatory bodies, for which the procedures for settling disputes are governed solely by the rules of procedure.

On June 27, 2005, the French Superior Audiovisual Council was consulted by the Minister of Culture and Communication on a draft decree implementing this article. The proceedings described in the draft decree are very similar to those defined for the Autorité de régulation des communications électroniques et des postes (ARCEP) or the Commission de régulation de l'électricité (CRE), with the appointment of a rapporteur from among the administration's staff and a verdict by the Collège.

In the opinion it issued on September 6, 2005, the French Superior Audiovisual Council stressed in particular the need to coordinate this new proceedings with those provided for in Article 34 I of the law, which gives the French Superior Audiovisual Council the power to intervene in a distributor's service plan.
The Conseil also proposes to clarify the role of the rapporteur, the Conseil's general management and the Collège in these proceedings.

Text of the French Superior Audiovisual Council's opinion :

Having been asked to give its opinion on a draft decree for the application of article 17-1 of law no. 86-1067 of September 30, 1986, the French Superior Audiovisual Council, after deliberation, makes the following observations.

I. General comments

First of all, the French Superior Audiovisual Council notes that all the grounds which may justify its submission of a case before the court in the context of the dispute settlement proceedings provided for in article 17-1 of the 1986 Act are also likely to lead it to oppose the operation or modification of a service distributor's supply, in application of the penultimate paragraph of I of article 34 of the same Act.
Once the law has made provision for the coexistence of these two proceedings, the articles on which they are based must be applied and performed under conditions that guarantee their compatibility. However, the way in which they are linked raises a number of questions.

For example, the question arises as to whether the French Superior Audiovisual Council, by means of a dispute settlement, can call into question the implicit decision of acceptance that has arisen, in the absence of any reaction on its part, within the manager provided for in I of article 34 of the law.
In this respect, the French Superior Audiovisual Council notes that article 17-1 makes provision for "where appropriate, the Council to modify the authorizations issued as a result of the dispute settlement decision". It therefore concludes that article 17-1 should be performed as authorizing the French Superior Audiovisual Council, where appropriate, to call into question any implicit decisions to accept declared supplies, beyond the four-month period provided for in case law for the withdrawal of individual rights-creating decisions.
Furthermore, the absence of any opposition from the French Superior Audiovisual Council after notification of the supply could be interpreted as a validation which could then restrict the French Superior Audiovisual Council's ability to intervene in a dispute settlement on the merits. However, the French Superior Audiovisual Council's opposition to the operation or modification of a service supply is merely an option. The French Superior Audiovisual Council is therefore free not to oppose the operation or modification of a supply which is not compatible with the principles set out in articles 1, 3-1 and 15. Consequently, the French Superior Audiovisual Council considers that the absence of opposition on its part does not imply that it has considered the supply to be in conformity with these principles, and therefore does not prevent it from subsequently taking a decision calling into question the validity of this supply.
The question also arises as to whether decisions taken in the context of dispute settlement are compatible with the principle of impartiality, within the meaning of article 6 § 1 of the European Convention on Human Rights, since the French Superior Audiovisual Council is required to carry out a dubbed examination of a supply's conformity with the principles laid down by law, first under article 34 and then under article 17-1. On this point, it is important to note that the two proceedings do not have the same purpose, and that consequently the first decision cannot be considered, in the light of the Court's case law, as a "pre-judgment" calling into question the possibility of an impartial decision in dispute settlements.

Secondly, the French Superior Audiovisual Council notes that, for the other independent administrative authorities, the dispute settlement proceedings are governed mainly or exclusively by the rules of procedure, which allows for considerable flexibility of adaptation.
For the audiovisuel industry, on the other hand, the law has referred to a Conseil d'Etat decree "the terms and conditions of application" of article 17-1; as a result, this decree would have to include most of the procedural rules, which would make it impossible to regularly make any adaptations that might prove necessary, given that this is a new procedure, and one that is, moreover, subject to extremely tight deadlines.
Lastly, the Council notes that the short investigation deadlines, which are shorter than those set for the other regulatory authorities (ARCEP and CRE), will necessarily have consequences for the adversary proceedings, which will have to be adapted to the set deadlines.

II. Comments on the draft text itself

The last paragraph of Article 1 states that the list of items to be included in the submission of a case before the court may be "specified" in the French Superior Audiovisual Council's rules of procedure. In the interests of legal certainty, however, it would seem preferable that only the procedures for transmitting the submission of a case before the court and the attachments should be specified in the rules of procedure, rather than the list itself, which is included in the decree.

Article 2 sets out the adversary proceeding, with possible deadlines for response. In the interests of good administration, it might be considered preferable for the communication of documents to the parties to be the responsibility of the Director General or a person designated for this purpose, and not of the French Superior Audiovisual Council itself.
The second paragraph of Article 2 allows the French Superior Audiovisual Council to reject "manifestly inadmissible demands" without further investigation. It would be useful for the decree to specify that such a decision must be taken by the Council itself.

Article 3 makes provision for the appointment of a rapporteur by the Director General, from among French Superior Audiovisual Council staff. It seems essential that the decree should also allow for the use of an external rapporteur, particularly in the event of a case requiring particular technical expertise, or to prevent any risk of interference with another case under investigation.
The second paragraph of article 3 makes provision for the rapporteur or his deputy to propose to the Conseil any useful investigative measure. The Government's decision to mention the Conseil is linked to the provisions of article 19 of the law, which allows the Conseil to request "from publishers and distributors of audiovisual communication services, all information necessary to ensure that they are abiding by the obligations imposed on them". However, the brevity of the investigation deadlines could justify the investigative measures falling within the competence of the rapporteur and his deputy, as well as that of the Conseil.
In addition, as the notion of "investigative measures" is relatively imprecise, it would be desirable for this paragraph to expressly mention the measures that may be adopted, in particular the request for documents from the parties during the investigation, the possibility of requesting opinions or documents of any kind from public authorities (government departments, independent administrative authorities, local authorities), as well as the possibility of commissioning expert appraisals.
It would also be useful for the decree to specify that the communication of documents to the parties, as part of the adversary proceedings, is carried out with due regard for the secrets protected by law, without the French Superior Audiovisual Council being prevented from using them as a basis for its decision, should certain details be omitted when documents are transmitted.
The third paragraph makes provision for "the rapporteur or his deputy to present the parties' conclusions and means to the Council at the examination sessions".
This paragraph could usefully be moved to article 4 of the draft decree, relating to the organization of review sessions, which also lists the role of the rapporteur or his deputy during these sessions.
With regard to the actual wording of the paragraph, it might be useful to remove any ambiguity concerning the right of the rapporteur and his deputy to speak jointly during the same session. In addition, the question arises as to whether the wording chosen is not too restrictive and does not prevent the rapporteur or his deputy from proposing a course of action for resolving the dispute.
The French Superior Audiovisual Council also considers it desirable that the decree allow the rapporteur or the Director General to set a provisional timetable, at the start of the proceedings and in the presence of the parties, and that it entrust the Director General with the closing of the investigation.
Similarly, it would be desirable for the decree to specify the proceedings under which the French Superior Audiovisual Council could request the regularization of an incomplete file, or, failing that, for the decree to refer to the rules of procedure on this point.
The Director General should also be able to propose to the Board that the proceedings be closed, should the plaintiff withdraw or should the parties reach an agreement before deliberation.

Article 4 makes provision for the organization of examination sessions and deliberations, while largely referring to the internal regulations the rules governing deliberations.
The organization of these sessions summons several comments:
- the very expression "examination sessions" raises a number of questions; since, for each dispute, this means the session during which the means and observations of the parties are examined in an adversarial manner, and at the end of which the Board deliberates, it would seem preferable to use the term "hearing" (for example, article 14 of ARCEP's internal regulations is entitled "hearing before the college");
- the first paragraph makes provision for the President of the French Superior Audiovisual Council to chair the examination sessions; it might be useful to make provision for the President to deputise in the event of absence or impediment;
- it would be useful for the decree to include a provision concerning the public nature or otherwise of hearings; the wording could be inspired by that of ARCEP's internal regulations, which make provision for hearings to be public, unless all parties make a joint demand, and that if the demand is not joint, the college deliberates on the public nature of the hearing;
- in the case of particularly complex cases, or in the event of a new argument being brought to the attention of the Council at a late stage, it would be desirable for the decree to allow the French Superior Audiovisual Council to give a ruling and refer the case back to the hearing.

Article 5 specifies that the two-month period provided for by law runs from receipt of a complete file, and that it may, as made provision for in article 17-1 of the law, be extended to four months "on the proposal of the rapporteur". This latter provision seems to unnecessarily constrain the proceedings and go beyond the provisions of the law.

The present notice will be published in the Official Journal of the French Republic.