The role of competition authorities in protecting freedom of speech: the PKN Orlen/Polska Press case

ABSTRACT For more than 30 years, EU institutions and Member States have been engaged in a dialogue on what measures might be considered appropriate to protect media pluralism. With the increasing globalization of digital services, national legislatures have increasingly recognized the need to actively shape the media market by controlling mergers taking place within it. The aim of this article is to discuss the PKN Orlen/Polska Press case and to explain the role of EU competition authorities in protecting media pluralism. The analysis also seeks to determine whether – and based on which competencies – the EU should counter systemic threats to media independence in Member States. The Polish experience may also be helpful in view of work currently underway on the new Media Freedom Act – EU legislation intended to counteract the growing monopolization of media and ensure its protection as a central pillar of democracy.


Introduction
Competition law is a cornerstone of the European Union's integration process. There is no doubt that, without common rules on the control of concentrations, the prohibition of agreements limiting competition or rules for granting state aid, the idea of the internal market could not be fully put into effect. In this respect, the competences of the Union and the Member States arising from the treaties, as well as from secondary legislation, have been subordinated to the overriding interest of protecting the market against the behaviour of entities that interfere with the free pursuit of economic interests. In subsequent decades, the objectives of antitrust policy have changed in line with economic and social changes; the integration approach and then the structural approach have been replaced by an effectiveness approach, in which the objective of the competition authority's actions is to protect the welfare of consumers, while the power of entrepreneurs is measured not so much by their market share but by an evaluation of their substantial market power. The Commission's case law, according to which merger control should counteract those concentrations that "would be likely to deprive consumers of the benefits that effective competition brings by significantly increasing the market power of firms", 1 also seems to be heading in this direction. This protection should be linked to safeguarding the economic interest of individuals rather than to ensuring respect for the fundamental personal rights which are vested in them. As a result, the functioning of competition authorities has traditionally been linked to protecting competition, seen as a public good, the ultimate outcome of which is supposed to benefit consumer welfare.
The fact that the competition regulations came into being as one of the pillars of the European Communities, and now of the economic union, does not mean that their implementation remains unrelated to the area of fundamental rights. The evolution of the European Union from an organization focused on economic cooperation to a union of values is a process that has been ongoing for several decades. In its early case law, the Court of Justice emphasized that it was not its rolenor that of other EC institutionsto uphold fundamental rights, including those arising from the constitutional provisions of the Member States. 2 However, it turned out that continuing to leave the issue of fundamental rights outside Community regulation threatened the development of the internal market, as it allowed the primacy of EU law to be challenged by national constitutional courts. This problem was reinforced by the precedent-setting decision of the German constitutional court in the Solange I case, in which, while not rejecting the concept of the primacy of EU law, the German Federal Constitutional Court (BVerfG) pointed out that "as long as the Community has not developed a catalogue of fundamental rights, EC secondary law will be subject to review from the point of view of its compatibility with the rights set out in the German Basic Law". 3 The reasoning set out in Solange I has subsequently been repeated many times, both in the case law of BVerfG 4 and in the positions of other constitutional courts. 5 Therefore, when discussing the importance of protecting fundamental rights during the establishment of an EU internal market, it should not be forgotten that the source of this protection can be found in the dialogue held between the European Court of Justice and the constitutional courts as early as the 1970s, i.e. more than twenty years before the adoption of the Charter of Fundamental Rights. In other words: economic cooperation and a union of values are not two separate areas in which the EU operates. The achievement of economic union objectives requires respect for the rights of individuals, otherwise the principle of the primacy of EU lawfundamental to the harmonization of the rules governing the internal marketwould be jeopardized. This principle, in the opinion of Member States' constitutional courts, can only be respected if EU law protects fundamental rights at a level no lower than that arising from the constitutional acquis of Member States.
The development of global digital services has led to many new challenges for competition and consumer protection authorities. As a result, the admissibility of competition authorities' recourse to regulations not directly related to antitrust is increasingly being debated. An example is the Hipster Antitrust movement, whichirrespective of the controversy it provokesreflects a broader trend established in recent years, called the New Brandeis School or New Progressive Antitrust Movement. 6 It undermines the criterion of consumer welfare as a measure of antitrust law application due to its focus on low prices, supposed to benefit consumers but instead favouring non-economic criteria, such as social equality, i.e. non-market values. 7 An example of competition authorities' new approach can be found in the precedent-setting proceedings conducted by Bundeskartellamt, the German competition authority, against Facebook, in which it found a violation of consumers' collective interests through the improper design of privacy policies. As a resultfor the first timethe competition authority applied requirements laid down in EU data protection law as a benchmark of control in proceedings concerning consumer practices in the digital services market. The case has yet to be finally resolvedin March 2021 the national court decided to refer preliminary questions to the Court of Justice. 8 This case clearly illustrates the overlap between the competences of competition authorities and powers traditionally associated with personal data protection authorities. 9 The safeguarding of the right to privacy and data protection by a competition authority makes it clear that the object of this interference may just as well be the protection of freedom of expression, embodied by the preservation of media pluralism. In this case, protection of the media market would be achieved through concentration control mechanisms used in such a way as to prevent ownership changes that threaten freedom of expression. This line of reasoning is supported by the fact that respect for fundamental rightsderived both from EU law and from the constitutional norms of Member Statesis not limited to negative obligations (prohibition of unauthorized interference) but extends also to positive obligationsin this case, influencing the media market in order to guarantee pluralism of opinion. 10 For this guarantee to exist, however, it is necessary that powers prohibiting any prospective observes that in such a sensitive sector as the audio-visual media, in addition to its negative duty of non-interference the State has a positive obligation to put in place an appropriate legislative and administrative framework to guarantee effective pluralism." concentrations threatening media pluralism be added to competition legislation. 11 In December 2020, PKN Orlen -Poland's largest domestic oil companynotified the competition authority (Prezes Urzędu Ochrony Konkurencji i Konsumentów) of its intention to acquire Polska Press, a leading publisher of local press and provider of electronic media, whose services are used by several million consumers every month. The authority subsequently consented to the intended concentration. The transaction raised serious concerns from the outset, as did the authority's decision, which sparked controversy regarding its legitimacy. It was alleged that the concentration would have a negative impact on media pluralism and threaten the regional media market, contrary to Article 11 of the Charter of Fundamental Rights. This refers, in particular, to the rights of citizens to access reliable information, publicly scrutinize and, if necessary, criticize the actions of public authorities, and to transparency in public life. It was argued that the protection of freedom of expression in the private media sector had become even more important because the subordination of the public media to the government in 2016 meant they were no longer able to report impartially on the activities of those in power. 12 The present reality of state media coverage has shown these concerns to have been fully justified. 13 Hence, such arguments illustrate the limited outcome of concentration assessment by competition authorities; an important legal question is whether one can surpass the concentration assessment scheme typical of competition law to also address fundamental rights rooted in the European constitutional tradition, such as the right to information or media freedom.
The aim of this article is to discussbased on the PKN Orlen/Polska Press casethe role of competition authorities in protecting media pluralism. The issue is not only important to Polandit also relates to the effectiveness of mechanisms protecting the rule of law that are built into EU treaties. Therefore, its resolution requires not only reference to 11 Although restrictions on media ownership and the process of their acquisition have been introduced in some EU countries, in most cases they are not based on mechanisms used by competition authorities. EU competence in the field of media regulation, but also an explanation of the current constitutional position of the competition authorities, and an interpretation of the principle of legalism, which, on the one hand, should limit the actions of public authorities and, on the other hand, should not allow these bodies to remain passive in situations where the constitutional foundations of the state may be threatened.

Methodology for assessment of concentration between undertakings
Administrative supervision of concentrations of companies, performed by competition authorities, is an intervention in the economic structural transformations of entrepreneurs. 14 Such supervision is of a preventive nature, 15 namely, entrepreneurs are obliged to notify the appropriate authorities of their intention to undertake concentration, understood as an economic operation fulfilling cumulatively two conditions for notification: the condition of concentration type and the condition of turnover. Polish competition legislation, similarly to EU law, does not provide a definition of concentration. The major feature common to all types of concentration mentioned in law is that, through the merger of hitherto independent assets (generating adequate turnover), the economic power of an entity increases. Until the competition authority has assessed the market effects of a concentration, or the deadline by which its decision should be issued expires, entrepreneurs are obliged to refrain from concentration (the so-called standstill obligation).
Analysis of the effects of intended concentrations is a prospective study, i.e. a study of the potential anti-competitive effects of a concentration after it has been implemented. To this end, the competition authorities compare the situation before the concentration (pre-merger scenario) with the situation after the intended concentration (postmerger scenario). The analysis also includes a comparison of the situation after the concentration with the state that would be the case if the concentration had not taken place (the so-called counterfactual). This type of analysis makes it possible to assess whether there is a causal connection between the intended concentration and any potential negative effects on consumer welfare, which is the ultimate goal of merger control legislation.
Antitrust evaluation of concentration is generally based on two elements determination of relevant markets in which the applicants operate and assessment of the effects of the intended concentration on these markets. 16 Given the fact that it is a basic tool for identifying competition and competitors, a relevant market should be determined individually in each case. The concept of a relevant market, although based on economic grounds, does not constitute an independent economic category but is a construction developed entirely for the purpose of applying competition law. Relevant market is a concept different to a market in the economic sense, being understood in its broadest sense as a game of supply and demand, with no conceptual overlap between them. The difference lies in the assumption of necessity to precisely define a relevant market in such a way as to be able to indicate the characteristics which distinguish a given market from neighbouring markets, and to unambiguously define the platform on which competition between entrepreneurs to attract buyers for goods or services takes place. Hence, the concept of a relevant market in competition law has a fully autonomous meaning. The purpose of determining a relevant market is thus to be able to precisely identify the competitive relationships (competitors) and their boundaries. In other words, without designating the relevant market (or relevant markets), it is not possible to conduct antitrust proceedings. Determination of a relevant market enables identification of the actual object and actual territorial scope of competition or cooperation between the parties directly involved in antitrust proceedings. 17 A relatively uniform methodology for defining a relevant market has developed through court rulings. This methodology is reflected in various guidelines and notices of competition authorities, usually of soft law nature, 18  which supports its findings with case law from the European courts or the Commission. The definition of a relevant market developed by European and national court rulings is an equivalence definition, where a relevant market (definiendum) is defined as the product and geographic market (definiens), distinguished on the basis of economic criteria. In light of this definition, a relevant market is a market for goods which, given their intended use, price and properties, including quality, are regarded by their buyers as substitutes and are offered in an area in which there are similar conditions of competition. 19 This definition draws attention to the sequential process of determining a relevant market, based on first determining the product market (the market for goods which, given their intended use, price and properties, including quality, are regarded by their buyers as substitutes), and then the geographic market (the market for goods offered in an area in which, given their type and properties, the existence of barriers to market access, consumer preferences, significant price differences and transport costs, there are similar conditions of competition). This definition, referring to Community jurisprudence, which invokes mainly the criteria of the purpose and nature of a product, 20 is supplemented by an analysis of supply substitutability and potential competition, and thus an analysis of the structure of supply and conditions of competition. 21 In practice, all three factorsdemand substitution, supply substitution and potential competitionare analysed as necessary. 22 Determination of a relevant market is of paramount importance in antitrust case law, in the sense that it directly influences any further competition authority findings, which, in the case of erroneous market delineation, will also be subject to error.
Defining a relevant market makes it possible to assess the concentrations notified. A fundamental criterion for assessing the concentration is the "substantial lessening of competition" test, the essence of which is to determine whether, as a result of the intended concentration, competition in the relevant market will be substantially impeded, in particular through the creation or strengthening of a dominant position. In EU law, 23 this test is called the SIEC (Significant Impediment of Effective Competition) test. 24 This assessment is made from the point of view of the market relationships that the parties to the concentration have had and will have in the foreseeable future; these relationships may be horizontal, vertical or conglomerate. Horizontal concentrations, i.e. mergers involving competitors, may lead directly to the creation of the market power of a single trader (the so-called non-coordinated effects) or to the creation of collective market power (the so-called coordinated effects). Such concentrations always lead to a restriction of competition by the elimination of market players and may therefore substantially reduce the competitive constraints that incumbent firms exert on each other. In extreme cases, it may lead to the creation of an entity whose market position enables it to significantly restrict competition in the relevant market.
Mergers with vertical effect are those where the participants are entrepreneurs at different levels of trade yet linked by supplier-customer relationships. Concentrations with vertical effect do not directly eliminate competitors from the market, and therefore do not reduce competitive pressure present in the market. The competitive concerns arising from concentrations with vertical effect are indirect in nature and depend mainly on closing parts of the market to entrepreneurs operating at other levels of trade. This means that such concentrations do not have per se restrictive effects on competition; moreover, they bring benefits to competition by eliminating the double margin and transaction costs that existed between parties to the concentration before it was carried out (double marginalization). They may also lead to mergers between complementary economic entitities. As a consequence, even if a concentration generates anti-competitive effects, they are likely to be mitigated or even outweighed by the positive effects on competition generated by the concentration. 25 Therefore, in practice, the European Commission assumes there will be no concerns relating to a concentration if, after the concentration, the market share of the new entity is less than 30%.
In a situation where no horizontal or vertical relationship exists or will arise between parties to a concentration, the merger is called a conglomerate; this applies to entrepreneurs that manufacture complementary products, products in adjacent markets or completely different products. Concentrations with conglomerate effects have, as a rule, pro-competitive effects due to their achieving economies of scale or strengthening procompetitive coordination between entrepreneurs (e.g. producing complementary products, possessing complementary technologies or production tools, etc.) or jointly selling products (tying or bundling) with a positive effect on consumers. 26 Therefore, decisions prohibiting concentrations with conglomerate effects are very rare.

Decision on PKN Orlen/Polska Press
The merger assessment methodology outlined above was applied by the Polish competition authority. PKN Orlen (the active participant in the concentration) is a public company whose shares are listed on the Warsaw Stock Exchange, and in which the State Treasury 27with almost 30% of sharesis a key shareholder. PKN Orlen heads a group of companies active mainly in the refinery and petrochemical production sector, as well as wholesale and retail sales of fuels: gasoline, diesel oil, jet fuel and related products. The PKN Orlen capital group includes 111 businesses, 74 of which are based in Poland, conducting activities focused on the group's core business. Together with PZU (Poland's largest state-controlled insurance company), PKN Orlen holds Sigma BIS, which, as a media house, conducts activities such as planning and purchasing advertising time and space in the advertising media, including media buying for its shareholders and for external clients, and It should be noted that the State Treasury is not treated as an entrepreneur with regard to domestic competition laws, and therefore does not form a capital group together with companies belonging to ita fact of great importantance when discussing merger control procedures.
providing consulting and strategic advisory services. In addition, PKN Orlen also owns the RUCH group, whose activities include press distribution at both wholesale and retail level. RUCH's retail network consists of approximately 2400 newsagent kiosks. Polska Press (a passive participant in the concentration) is a media company concerned mainly with newspaper publishing, online news portals, selling press and internet advertising space, and printing services. Amongst other publications, the group owns 20 regional dailies and 120 local weeklies. It sells its newspapers in both hard copy form and as online subscription editions via three of Poland's biggest wholesale distributors: Kolporter, RUCH and Garmond. Regardin printing services, especially that of press and advertising materials, Polska Press offers comprehensive services covering the whole production cycle from printing to transport. The previous parent company of Polska Press, holding 100% of shares in its share capital, was HKM GmbH, based in Austria.
During the merger procedure, no relevant markets were identified on which the concentration would have a horizontal impact. According to the definition applied by the European Commission, a relevant market affected by a concentration in a horizontal manner is any product market in which at least two entrepreneurs participating in the concentration are engaged (common markets), and where the concentration leads to the gaining of a total geographical market share of more than 20%. 28 According to this definition, there were no common markets for the participants of the concentration.
The competition authority also analysed the wholesale press distribution market and concluded that PKN Orlen's share in this market did not exceed 30%. Therefore, this was not a market affected by a concentration in a vertical relationship. The share of RUCH in the wholesale distribution of press in Poland did not exceed 30%, and the share of press published by the Polska Press group in purchases of its distributors in Poland did not exceed 10%. Due to the controversial nature of this market, the competition authority asked the two other largest press distributors in Poland to evaluate the prospective concentration. Both of them pointed out that that such a concentration would make it possible to distribute local press exclusively through RUCH, controlled by PKN Orlenwhich "would have unprecedented effects on the wholesale press distribution market", as it would create a single entity that would together be a publisher, distributor and significant retailer of press with its own network of outlets. However, in the opinion of the competition authority this did not constitute a significant threat as using only a single distributor and therefore limiting its press sales would not only deprive PKN Orlen of profit, but more importantly, such action would limit opinion-forming in local and regional society, which would be the opposite of what Polska Press's acquisition by a subsidiary of the State Treasury was trying to achieve.
The competition analysis also showed that relevant markets affected by the concentration in a conglomerate configuration (product markets covering the territory of Poland or a part thereof, in which participants to the concentration have a market share exceeding 40%) would include the sale of aviation fuel (in the case of PKN Orlen) and regional press (in the case of Polska Press). However, the competition authority stated that, as a result of the merger, the market power of PKN Orlen in such markets would not be transferred to the markets in which the Polska Press group operates because the former markets are in no way related to the markets in which Polska Press is present. Conversely, following the concentration, PKN Orlen would take over the market position of the Polska Press group in these markets. Neither the market position of the Polska Press group as a press publisher nor its share in the regional daily newspaper publishing markets would change as a result of the proposed concentration.
Consequently, the competition authority's analysis of the effects of the concentration stated that it would not result in a significant restriction of competition in any of the markets in which the participants are active. Therefore, in the competition authority's view, there were no grounds under competition law that could justify prohibiting the PKN Orlen/ Polska Press concentration. 29

Opinions of human rights organizations
In the course of the merger control proceedings, the Helsinki Foundation for Human Rights (HFHR) and the Polish Commissioner for Human Rights (RPO) also presented their positions on the intended concentration between PKN Orlen and Polska Press.
In the view of the HFHR, the purchase of Polska Press by a state-controlled company would not allow the newly-monopolized media to fulfil their obligations, in particular the public scrutiny of authority, at a local, regional or national level. 30 The merger would therefore harm consumers by depriving them of diverse sources of information. The principle of freedom of the media, including the press, excludes the legal subordination of the media to political power. The HFHR stated that a PKN Orlen/ Polska Press concentration would threaten the independence of the regional press and the pluralism of the media market. Moreover, the HFHR pointed out that State Treasury companies often consciously buy advertising space in pro-government newspapers, to the exclusion of other titles that may be neutral or not support the government, with a concomitant and adverse affect on the ability of independent regional newspapers to stay in the market. In the Foundation's opinion, the acquisition of Polska Press by PKN Orlen would therefore limit the advertising market available to independent publishers, 31 which might in turn deprive citizens of reliable, independent information and the exercise of public scrutiny over the authorities by an independent press, fulfilling the function of a "public watchdog". 32 A similar position was taken by the RPO, who acted not only ex officio, but also in response to complaints from individual citizens who had approached him concerning the case, requesting that the concentration be examined from the perspective of protecting fundamental rights. They underlined the need to protect media freedom and the right to information. The Commissioner stated that press published by companies controlled by the State Treasury would and could not be independent sources of information since politicians "under whose authority the companies controlled by the State Treasury are not interested in disclosing to the public the factsoften inconvenient for themconcerning their public and private activity. They are also certainly not interested in their activities being subject to public scrutiny and criticism in press titles published by companies controlled by the State Treasury". 33 The Commissioner also pointed out that the duty of the competition authority, within the framework of its competence in the area of 30  merger control, is to ensure that "after the concentration, the activity of newspapers and magazines diversified in terms of their programme, thematic scope and attitudes presented will be guaranteed". In the RPO's opinion, it was particularly important for the competition authority to ensure media pluralism, given that media merger has not been separately regulated under Polish law. Finally, as the competition authority did not take into account the argumentation presented, the Commissioner for Human Rights challenged the decision in court and asked that enforcement of the decision be suspended indefinitely. In its response to the application for suspension, the competition authority argued that the issues outlined could not be taken into account during the merger control proceeding. 34 It stated that the competition authority's decisions in concentration cases were based solely on whether prospective concentrations would preserve market competition, as this was the only power granted to it by the law. This meant thatin the competition authority's viewit could not assess other aspects of the proposed transaction, including the impact of the concentration on media pluralism.
This positionin principleseems obvious if assessing the economic effects of concentration. However, the Polish antitrust doctrine points out that "the protection of the public interest against excessive concentration in the media market is enshrined in other values (…), primarily the preservation of pluralism in its broadest sense, encompassing various areas of social life". 35 Bearing this in mind, it is clear that the competition authority should have assumed that the concentration would result in the monopolization of media coverage by companies controlled by the State Treasury. From a formal and legal point of view, these companies are separate entities, and thus have a competitive relationship, whereas the State Treasury itself is not an entrepreneur as defined by law and therefore does not form a capital group with its companies. When considering the actual effects on competition, however, a far-reaching coordination of these companies' activities should be expected 36which would undoubtedly have an impact on competition, in this case on the "development of the pluralism of opinions", mentioned in previous decisions of the competition authority. 37 A diversity of ownership should ensure access to a variety of information, making it possible to form opinions without being unduly influenced by a "dominant source".

Sources and significance of media pluralism in EU law
Media pluralism is a concept intrinsically linked to the Western model of democracy. The diversity of available information sources is a guarantee of freedom of expression, understood not only as the freedom to express one's own opinions but also as the right of others to seek out and access content that interests them. In the opinion of the ECtHR, pluralism, tolerance and openness to the views of others are key elements for the proper development of a democratic society. 38 Freedom of the media is also seen as an essential condition for the proper functioning of democracy. 39 Freedom of expression cannot be defined solely, however, as the freedom to express opinions that are favourable or considered harmless or indifferent, but also extends to those views that may shock or disturb the state or a particular group in society. 40 A media market in which there are a variety of players who can convey different views and opinions in an unhindered manner also supports the exercise of public scrutiny over the government. However, the problem of ensuring media freedom should not be limited solely to ownership aspects.
Pluralism can be ensured only in the context of an overall legal model supporting the creation and functioning of an independent media. It therefore includes concepts such as journalistic independence and the protection of editorial staff from external pressure. In this way, it is also possible to link to pluralism the so-called "chilling effect"a phenomenon resulting from overly restrictive national regulations that govern the financial responsibility of journalists and publishers for the content provided. In the methodology used in a periodic report by the Centre for Media Pluralism and Media Freedom, evaluation of the rules applied to protect media pluralism in individual countries is carried out at four levels: (i) the existence of basic legal safeguards, (ii) market plurality, (iii) political independence and (iv) social inclusiveness. 41 From this perspective, media concentration rules are important but not the only factor influencing the protection of pluralism and thus guarantees of freedom of expression. This view is also shared by the European Commission. 42 When the human rights systems were first established, media freedom was not defined as a separate category requiring legal protection. The first legal regulations created in post-war Europe focussed on strengthening the rights of individuals against unauthorized interference by the state. Hence, both the Universal Declaration of Human Rights and the European Convention on Human Rights include freedom of expression within the catalogue of fundamental rights. Although this right has been defined very broadly and includes not only the freedom to express opinions but also the right to sources of information, it does not explicitly imply an obligation on the state to counteract potentially adverse ownership changes in the media market. Of course, such a requirement can be derived from the implementation of the so-called positive obligations, i.e. shaping of the national law so as to most fully ensure the protection of the individual not only against vertical but also horizontal violations. 43 The positive duties of the state in respecting human rights should in principle serve to ensure respect for fundamental rights in the relationship between the state and the individual, as well as in relationships between individuals. The international human rights system has been built on the premise that the appropriate means to curb unauthorized action by public authorities is to prohibit unlawful interference with individual rights (negative duties). This is a reasonable assumption: in a democracy, the powers of the state derive from the law; public authorities exercise only such powers as have been granted to them and only to the extent necessary to achieve legitimate aims. Therefore, in view of constitutional and international legal norms, the introduction of statutory regulations aimed explicitly at protecting media pluralism (e.g. by introducing additional restrictions in the acquisition process) should also be examined with respect to the proper implementation of the state's positive obligations. Therefore, such provisions should be examined in terms of whether it is permissible to restrict the freedom to conduct business activities as well as the right to property; in such an approach, an analysis of proportionality would include determining whether it was permissible to restrict the ownership right of an entrepreneur (prohibition of selling a media company) in order to safeguard another protected good (the right to information). At the same time, the adoption of this type of regulation is not necessary in order to prohibit state authorities acquiring private media in a manner that threatens media pluralism. This is because such action would directly violate the prohibition of unlawful interference, and therefore would raise justifiable doubts regarding its compliance with the standards of human rights protection.
A ban on institutional censorship is also a measure that needs to be applied in order to guarantee freedom of expression. Institutional censorship can be said to exist when the admissibility of a given publication is conditional upon approval by a public body established for this purpose, including self-censorship directed by the state. It is therefore preventive censorship, which aims to prevent the spread of a particular type of information. For this reason alone, this measure cannot be reconciled with the obligation to respect freedom of expression and the requirement for the state to intervene only in a way that is necessary and proportionate to achieve overriding and legitimate aims in a democratic state. In nondemocratic states, censorship is a well-known mechanism used to control the dissemination of information and ideas. Therefore, in the case of many European countriesincluding post-socialist onesa ban on censorship has acquired the dimension of a separate constitutional norm. The prohibition of preventive censorship covers not only actions aimed at its introduction but also omissions, including those on the part of public authorities. Examples of such omissions include the failure to introduce regulations ensuring independence and pluralism in the media market, as well as the failure by state authorities to take action in cases where such pluralism is threatened as a result of economic transformation. It must therefore be accepted that every activity of the state (including that connected with failure to appropriately use its powers) which contributes to the creation of a system of preventive censorship is incompatible with the Basic Law and consequently unlawful.
For many years, the European discussion on appropriate measures to protect media pluralism centred mainly around non-legally binding instruments. Thus, the Committee of Ministers of the Council of Europe stressed as early as 1982 that member states "should adopt policies to foster as much as possible a variety of media and a plurality of information sources, thereby allowing a plurality of ideas and opinions." 44 The problem of ensuring such broadly defined media freedom and independence has been the subject of several recommendations published by the Committee of Ministers over the years. 45 It is worth mentioning Recommendation CM/Rec(2007) of 31 January 2007, which indicated the need to establish more far-reaching principles of market protection, going beyond the general rules of competition law, applicable to situations where the pluralistic expression of ideas and opinions might be endangered as a result of economic transformation. 46 In turn, Recommendation CM/Rec(2018)1 formulated a set of recommendations for states, including those relating to the so-called institutional framework for media pluralism. 47 The Committee of Ministers emphasized the importance of applying competition law, not only in order to protect entrepreneurs operating in the media market but, more significantly, to secure the right to information. 48 It was pointed out that, given the role of the media in exercising scrutiny over the activities of the authorities, it was necessary to pay special attention to the cases involving monopolization of the media by political parties and persons actively involved in politics. 49 The issue of media freedom and independence has also been addressed by the European Parliament. In a resolution adopted on 16 September 1992, the Parliament pointed out that monopoly or state control of the media is a practice that runs counter to freedom and pluralism, "if not the very nature of democracy itself". 50 In view of the fact that domestic media merger policy might adversely affect the functioning of the internal market, the Parliament also called on the Commission to present draft legislation that ensured harmonization of the rules applicable in this area. 51 This position was reiterated in a resolution on concentration and pluralism in the media in the European Union adopted on 25 September 2008, in which the Parliament called for, inter alia, the consistent application of competition and press law in order to strengthen media pluralism. 52 However, despite such proactivity amongst EU institutions, ensuring media pluralism has not been a distinct regulatory policy objective of the EU legislature over the years. 53 This has been mainly due to the assumption that the issue lay within the competence of Member States. The European Commission pointed to the primary importance of national regulations, stressing that "European competition law cannot replacenor does it intend to do sonational media concentration controls and measures to ensure media pluralism". 54 This competence was also recognized in Regulation 4064/89, 55 Article 21(3) of which stated that Member States "may take appropriate measures to protect legitimate interests other than those taken into consideration by this Regulation", such interests including media pluralism. This was confirmed by the Commission's decision in the Newspaper Publishing case, 56 in which the merger was approved with the proviso that a Member State's authorities take steps to protect media pluralism only if the application of the principles of necessity and proportionality was limited to what was necessary to protect the legitimate interest concerned. "The Member States must therefore choose, where alternatives exist, the measure which is objectively the least restrictive to achieve the end pursued". 57  However, the former provision cannot affect the obligation to apply EU law in a manner that fully respects fundamental rights. Indeed, also under the legal model prevailing before the Lisbon Treaty, the protection of fundamental rights was part of Union law as a general principle of law. In Nold KG v Commission, the Court of Justice had already indicated that the obligation to respect constitutional traditions common to Member States precluded measures that infringed fundamental rights and prevented them from being considered compatible with EU law. 59 Furthermore, in Stichting Collectieve Antennevoorziening Gouda, it explained that freedom of expression, as derived from the European Convention on Human Rights, was a fundamental right protected by the EU legal order. Pointing out the link between the right to information and ensuring media pluralism, the Court also confirmed that the protection of media freedom was a legitimate public policy objective that justified, if necessary, the introduction of restrictions on the freedom to provide services. 60 It was only with the entry into force of the Lisbon Reform and granting the Charter of Fundamental Rights legal effect equal to the Treaties that a direct reference to media pluralism was introduced into EU primary law. According to Article 11(2) of the Charter, "the freedom and pluralism of the media shall be respected". In this respect, this norm is a natural complement to Article 11(1), which introduces guarantees of freedom of expression. However, the actual wording of Article 11(2)especially with regard to media concentration casesdoes contain some ambiguity. Firstly, it follows from a purposive interpretation of the provision that, in the EU legislature's view, freedom of expression and media pluralism are two, at least partly independent concepts, which thus require separate protection. This means, in particular, that respect for the right to information is not the only reason to ensure media freedom (pluralism). If not, the provision of Article 11(2) would be unnecessary, since it would de facto repeat the objectives already defined in Article 11(1) of the Charter. This leads to the conclusion that the principle of media pluralism is not so much a component of freedom of expression but rather a separate object of protection. 61 In this respect, Article 11(2) can be seen as confirmation of the need to take into account regulatory aspects in the functioning of the media market and, separately, as a basis for introducing restrictions on the exercise of 59  other rightssuch as, for example, economic freedom and the right of property. The Charter distinguishes between rights, freedoms and principles. Since the drafters deliberately did not make a precise distinction between rights and principles, it was left to the Court of Justice to decide which provisions of the Charter should relate to one or the other, right or principal. Some guidance is provided by Article 51(1), which requires that respect for rights and the observance of principles be ensured. There is no doubt, however, that media pluralism is a principle which, pursuant to Article 52(5), provides a framework for the implementation of Union law and of specific regulations.
The provisions of the Charter are applicable to the extent that EU law is applicable. As a rule, they are binding not only on the institutions of the Union, but also on Member States, including, in accordance with the principle of loyal cooperation, all public authorities. It is clear that merger control should be classified as a shared power, i.e. a power under which Member States may only act in a way that does not prevent the full implementation of EU law. Moreover, due to the legal standing of the Charter, its provisions take precedence over regulations set forth in secondary law, including regulations concerning principles governing the exercise of power by competition authorities. Therefore, although it is the position of the EU institutions that Member States remain responsible for ensuring media pluralism, the implementation of this obligation does not take place outside the space of application of EU law. One tool to ensure implementation is competition law, which provides protection against the emergence of dominant market positions. 62 The establishment of media pluralism as a separate subjective right allows the CJEU to assess state action taken in regulating the media market. Although the Court has not yet directly interpreted Article 11 (2) of the Charter, including the relevance of this norm to applicable national laws of Member States, it is clearly within the exclusive competence of the Court to provide an interpretation in this regard. Given that the constitutional provisions of Member States generally do not refer explicitly to the concept of "media pluralism" but focus instead on protection of freedom of expression and prohibition of censorship, the role of the Court appears to be especially important in the development of a common European standard for the application of the principles of media concentration. This is even more the case when one considers that references to the Charter in secondary competition law are unsatisfactory. 63 Though Regulation 139/2004 states in Recital 36 that the Union respects fundamental rights and observes the principles recognized in particular by the Charter of Fundamental Rights, and that the Regulation should be interpreted and applied with those rights and principles in mind, Recitals 37-42 narrow this reference to the procedural rights of the parties to the proceedings. Similarly, Directive 2019/1 (ECN+ Directive) 64 stipulates that the EU legislature affirms the importance of ensuring that proceedings comply with the Charter of Fundamental Rights. In this respect, however, Article 3(1) of the directive indicates that the exercise of antitrust powers is limited only by respect for fundamental rights. Moreover, the purpose of the provision was to ensure respect for the rights of the parties to the proceedings, in particular their right to a fair trial and the proportionality of any sanctions applied. The ECN+ Directive does not apply to merger control, but is nevertheless important, in that it strengthens the power and independence of national competition authorities, a not insignificant matter when assessing concentrations.

Media pluralism in Polish law
The Polish Constitution, like the constitutional acts of other post-communist states, was drafted under the strong influence of both the international human rights systems (in particular, the ECHR and the ICCPR) and the legal acquis of the Council of Europe and European Union. All the same, it is a modern act that takes into account other European countries' experience of applying constitutional provisions. As far as the protection of fundamental rights is concerned, it was built on the principle of inviolability of human dignity. It defines dignity as a source of human rights, which also include freedom of speech (Article 54(1)) and the prohibition of preventive censorship (Article 54 (2)). In this respect, the wording and systemic significance of both norms are similar to those arising from the acquis of the ECHR, although the Polish Constitutional Tribunal has pointed out that the provisions of the Convention have a broader scope. 65 The issue of freedom of the press is also protected by Article 14, according to which "the Republic of Poland shall ensure freedom of the press and other means of social communication". This norm is included in the first chapter of the Basic Law, which contains the most important constitutional principles. It is addressed to the state, which is obliged, above all, to refrain from actions leading to the restriction of media freedom. Undoubtedly, an example of such a violation would be an attempt by the authorities to inhibit the development of opinion pluralism and to shape opinion by a dominant source. However, the mere fact that the state owns or controls media companies does not violate the principle if its ownership or control does not lead to excessive restriction of pluralism in the media sphere. 66 Furthermore, it is the duty of the state under Article 14 to adopt domestic regulations that will lead to the media market being shaped in a way that protects the principle of pluralism (positive duties). It is with this in mind that Jacek Sadomski highlights the relationship between the norm arising from Article 14 and competition law regulations. 67 The Polish Constitution also established a body responsible for safeguarding freedom of speech and the right to information. This is the National Broadcasting Council (Krajowa Rada Radiofonii i Telewizji), which has both legislative and licensing powers, as well as exercising supervision over entities operating in the radio and television market. Although the Council is not part of the executive power structure, the Constitution makes no reference to its independence or specific powers to counteract cases where freedom of speech would be threatened by action taken by other state authorities. The statutory powers of the Council focus on the execution of licensing tasks and responding to irregularities in the functioning of specific broadcasters. The press and electronic media market, not being subject to the licensing process, is outside the direct influence of the Council's authoritative powers. This also applies to the media concentration control procedure, which is executed wholly by the competition authority. 68 Concern arises about the relationship between the constitutional norm, whereby the Council guards freedom of speech and the right to information, and the provisions of the Broadcasting Act, whose function is, de facto, restricted exclusively to the role of regulating part of the media market. In the case of public authorities, direct application of the Constitution may not lead to the creation of a power not already provided for by law. Such an outcome would result from the jurisprudence of administrative courts, which indicate the inadmissibility of deriving detailed competence norms from general provisions defining the tasks of the Council. 69 In turn, the Competition and Consumer Protection Act, which defines the competences of the national competition authority (the President of the Office of Competition and Consumer Protection), does not mention any threat to media pluralism as a premise justifying the prohibition of a concentration. Such a decision may be issued only if, as a result of the concentration, "competition in the market is significantly restricted, in particular by the creation or strengthening of a dominant position in the market". The legislature has therefore implemented the classic definition used in competition law, referring exclusively to the economic significance of the concentration under reviewwithout analysing its wider effects, related in particular to respect for fundamental rights.
From the literal wording of the Competition and Consumer Protection Act provisions, the competition authority is under no obligation (and thus has no authority) to refuse to consent to a concentration if it does not lead to the strengthening of a dominant market position. In turn, the authority guarding media freedom (the National Broadcasting Council) has no role in the merger control procedure with respect to publishers of press and electronic media.
As a result, in the procedure conducted by the competition authority, the acquisition of a significant share in the local press market by a state-controlled oil company was not subject to assessment in terms of its impact on fundamental rights (in particularthe right to information) and on fundamental political principles, which include media pluralism, arising from Article 14 of the Constitution and Article 11(2) of the Charter.
The principle of legalism in the operation of administrative authorities and the obligation to respect other constitutional principles Resolving any doubts about the correctness of the competition authority's conduct in the Orlen/Polska Press case initially requires answers to two key questions: (1) are the existing legal standards (national and EU) laid down for the protection of media pluralism sufficiently precise to constitute a standard of assessment of decisions taken by public authorities? (2) how should the meaning of the principle of legalism be interpreted in a situation where the actions of a public authority (within the limits of its competence, arising from statue law) risk breaching fundamental constitutional norms?
In the current legal order, media pluralism is a separate fundamental right (and also a principle of law), included in both EU law (Art. 11(2) of the Charter) and national law (Art 14 of the Polish Constitution). Freedom of the media, as a component of freedom of expression, is also protected by Article 11 of the European Convention on Human Rights. The acquis of the Convention directly influences both EU law (Article 52(3) of the Charter) and the interpretation of Member States' constitutions. Since ensuring media pluralism is a legitimate public policy objective, interference with other fundamental rights (such as the right to property or freedom to conduct a business) in order to comply with the principles of necessity and proportionality, respect freedom of the press and thus secure the right to information cannot be regarded a priori as unacceptable.
Despite a wealth of recommendations from EU/CoE institutions pointing to the importance and role of media freedom, the issue has not yet been subject to detailed regulation in either human rights systems or EU law. The entry into force of the Treaty of Lisbon resulted in the inclusion of the protection of media pluralism into the catalogue of fundamental rights. At the same time, however, the lack of CJEU and ECtHR jurisprudence on this issue has effectively hindered the establishment of a standard that should be applied to the assessment of cases of concentration in the media market. The PKN Orlen/Polska Press case is a perfect example of the weakness of existing Polish legislation; even if the protection of media freedom has been accepted as a vital principle of democratic states, the current lack of detailed regulations that public authorities can apply in merger procedures creates, from the perspective of market participants, a serious risk of violating the principle of legal certainty and accessibility. 70 This observation mirrors the findings of the Committee of Ministers of the Council of Europe, especially those assumptions relating to the implementation of recommendations on how to ensure media pluralism and transparency of media ownership structure. These recommendations addressed to statesshould be subject to careful analysis and lead to appropriate legislative initiatives. Waiting for the legislature to respond, however, hardly seems an adequate solution to ensuring sufficient protection of the rights of individuals. In the cases of Poland and Hungarycountries in relation to which procedures concerning systemic threats to the rule of law have been initiated 71the actions of those in power are often directed towards introducing mechanisms that weaken the institutions of a democratic state, rather than strengthening them. 72 Hence, the answer to the last question posedwhich boils down to whether the competition authority should take into account the impact of its decisions on the protection of the state constitutional principlesassumes particular importance. It is thus a question about the possibility of the direct application of the constitution and EU law.
One of the foundations of democratic states is the principle of legalism, according to which public authorities act on the basis of and within the limits of the law. 73 Both national and international courts have repeatedly pointed out that public authorities may not create their own powers. 74 Moreover, sovereign powerswhen they affect the area of fundamental rightscannot be interpreted broadly. It would therefore appear that respect for the principle of legalism precludes a competition authority from refusing a concentration on the basis of a negative premise that is not included in the relevant act (that on which the case is decided). The role of a public authority does not include undertaking tasks for which it was not appointed. Confirmation of this argumentation may be found in the jurisprudence of the Constitutional Tribunal, according to which the obligation of public authorities to act on the basis of and within the limits of the law means, inter alia, that: the competences of public authorities should be unequivocally and precisely defined in legal regulations, all actions of these authorities should have a basis in such regulations, andin the case of doubts as to interpretationthe competences of public authorities may not be presumed. 75 However, the above reasoningconsistent with the position of the competition authority itself 76must arouse justifiable controversy. Accepting it uncritically could lead to a distortion of the meaning of the legalism principle, which is intended to protect the rights of individuals and to ensure that the actions of state authorities are limited by law. In this respect, the principle of legalism serves to implement the idea of the rule of law. However, interpretation of the lawespecially that concerning fundamental rightscannot be carried out in a disjointed manner, in a way that disregards other legal norms. In particular, it is unacceptable to disregard the superior provisions of constitutional and EU law. Public authorities may not be "relieved" by a domestic? legislative decision of their obligation to observe the norms and values contained therein that underlie constitutional regulations and EU law. Any action of a state body which, though complying with relevant competence provisions, infringes constitutional and EU values should not be approved. It is worth remembering that this kind of erroneous understanding of legal positivism was one of the reasons why work on human rights systems was initiated in post-war Europe.
In accordance with Article 8(2) of the Constitution, the provisions of the Polish Constitution shall be applied directly, unless its provisions provide otherwise. This norm does not contain any exceptions or limitationsin particular, it does not deprive public administration bodies of the possibility to resolve a case on the basis of directly applicable provisions of the Constitution. However, as indicated in the jurisprudence of national courts, it is unacceptable to issue an administrative decision relying exclusively on a constitutional norm. 77 An additional obstacle to the direct application of the Constitution is the requirement that the provisions applied need to be "characterised (…) by a sufficient degree of concreteness and precision". 78 This requirement is met by very few norms of the Basic Law, and Article 14, which is the source of the principle of media freedom, certainly cannot be included in this group. In fact, in the PKN Orlen/Polska Press case, the source of concern is not so much the collision of statutory and supra-statutory (constitutional or EU) provisions, it is more the introduction of statutory provisions in too narrow a manner that precludes the possibility of providing adequate protection to superior norms. In such a casein line with the position expressed by the Polish Constitutional Tribunalone may identify a so-called legislative omission. The Tribunal defines this concept as "a situation when the legislature has standardised an area of social relations, but has done so in an incomplete manner, regulating it only fragmentarily." 79 A legislative omission may be the subject of a constitutional complaint, as "a plea of unconstitutionality may concern both what the legislature has regulated in a given act and what it has omitted in this act, although, acting in accordance with the Constitution, it should have regulated". Therefore, given the doubts as to whether national competition law contains an exhaustive list of grounds justifying a negative decision on a concentration, this issue should be interpreted by the constitutional court. Its aim should be to determine whether, and to what extent, the 77 Polish Voivodship Administrative Court in Poznań 26 January 2018, Case I SA/Po 1003/17, https:// orzeczenia.nsa.gov.pl/. The court stated that, although the Constitution does not limit the circle of bodies appointed to directly apply the Constitution, public administration bodies cannot be considered independent and the principle of subjection only to the law does not apply to them. "These organs do not have the possibility to bypass particular levels of the hierarchical system of sources of law or to ask legal questions to the Constitutional Tribunal. Public administration bodies are obliged to act in accordance with the provisions of administrative law and are bound by the interpretation coming from their superior bodies. They may not, therefore, issue an administrative decision based only on a constitutional norm". 78 Polish Constitutional Tribunal 28 November 2001, Case K 36/01, https://ipo.trybunal.gov.pl/. The Supreme Administrative Court has also indicated in its jurisprudence that direct application of the Constitution's provisions is possible only when the requirement of unambiguity is met, to an extent that allows their application without the need to refer to statutory provisionssee competition authority should take into account the impact of the concentration notified on media pluralismso as not to create a threat to respect for rights arising both from national constitutional norms and EU law.
In the case of Poland, however, this possibility has now been, de facto, blocked due to the ongoing crisis surrounding the Constitutional Tribunal, the origins of which can be found in reforms introduced by the present governing majority. 80 As a result of the changes introduced, the ECtHR stated in a recent judgment that the Tribunal does not currently meet the conditions allowing it to be recognized as a court of law. 81 An alternative to resolving doubts by means of a constitutional complaint 82 is to seek an interpretation of the Charter of Fundamental Rights from the Court of Justice. Such an objective may be achieved by means of preliminary questions from a national court, deciding the validity of a decision taken by a competition authority. As a general rule, competition authorities, acting under national law, examine cases that are not classified as concentrations with an EU dimension. This does not mean, however, that in such cases the provisions of EU lawother than those directly applicable to concentrationsmay be disregarded. A distinction must be made between a situation where the Union (as an international organization) does not have competence in a given area 83 and a state in which Union law does not exercise such competence 84 , as is the case with control of concentrations that do not meet EU thresholds. It should be remembered that the actual wording of Art. 3(1) of the ECN+ Directive requires competition authorities to take the provisions of the Charter of Fundamental Rights into account in their decisions. 85 Therefore, it in the case under discussion, the Court of Competition and Consumer Protectionwhich is currently examining the Commissioner for Human Rights' challenge to the decision authorizing the takeover of Polska Press by PKN Orlenshould ask for a preliminary ruling from the Court of Justice to determine whether domestic laws regarding concentration control that do not take into account the impact of mergers on media pluralism do comply with Art. 11 (1) and Art. 11 (2) of the Charter of Fundamental Rights.
The PKN Orlen/Polska Press case should also be an impetus for other Member States to review their national legislation in order to properly consider the specifics of media market concentration in antitrust legislation. This also applies to countries which already have established media concentration laws. In the latter case, it may be necessary to introduce additional restrictions on media acquisitions by entities even indirectly controlled by the authorities or political parties. It should be borne in mind that the PKN Orlen/Polska Press case does not actually concern the problem of positive obligations of the state. This would only be relevant if the concentration involved entities free from state influence, which is not the case here.
Basing the protection of rights under the Charter of Fundamental Rights on the actions of national governments who are currently being proceeded against regarding systemic threats to the rule of law would seem pointless. Viktor Orbán, during the last ten years of his rule, has de facto monopolized the media market in Hungary. 86 The same path is now being followed by the current Polish government. Recognition that the Charter is intended to protect the rights of EU citizens independently of the will of national governments requires the introduction of provisions that effectively protect media pluralism. A means of achieving this may be to extend the definition of a concentration with an EU dimension to include cases of acquisitions of entities which have a significant share of the media market in at least one Member State, even if, as in the case of the media, the relevant geographic markets are national in nature. Such a solution would truly minimize the threat of introducing a state monopoly in the area of access to informationa threat which clearly stands in the way of not only the proper functioning of a democratic state but also the achievement of objectives the European Union was created to achieve. This, in turn, proves that in the ongoing European discussion concerning amendments to competition law, it is essential to consider a change to criteria that recognises concentrations as having a Union dimension.

Summary
In the European legal model, respect for fundamental rights constitutes an absolute obligation underpinning state action. However, this obligation should not be identified solely with the prohibition of unlawful interference. It also includes the shaping of not only law but also the practice of public administration bodies, which should not violate these rights. Undoubtedly, freedom of speech is a core value on which modern democracies have been built. In recent years, however, a completely new threat to freedom of speech has emerged. It is the limiting of pluralistic debate through the monopolization of both private and state media, engendered by populist governments attempting to gain more influence in shaping public opinions and views. At the time the decision by the Polish competition authority was issued -January 2021 -PKN Orlen stressed that the purchase of Polska Press was aimed solely at diversifying the company's business, as well as creating synergy with the previously acquired Ruch SA (a leading press distributor). 87 Concerns expressed by NGOswhich said that a state-controlled oil company, whose president was a former politician and active member of the ruling party, should not be involved in the implementation of one of the party's leading initiatives, i.e. the socalled "repolonisation of the media" 88were downplayed.
In March 2021, as a result of a complaint filed by the Commissioner for Human Rights, 89 the Court of Competition and Consumer Protection ordered that enforcement of the decision permitting the concentration be suspended until the merits of the case had been examined. 90 Its decision was ignored by PKN Orlen, which not only introduced changes to the management board of the recently acquired company, but also explicitly statedas if it were necessarythat it did not feel bound by the court's decision. 91 In the following weeks, the new management board of Polska Press, composed of nominees connected to media organizations favourable to the ruling party, 92 conducted a purge of chief editors in a significant number of Polska Press editorial offices. 93 The dismissals also extended to journalists who had previously published articles unfavourable to the government, 94 while strictureseffectively preventive censorshipwere introduced that outlawed publication of any content either criticizing the government or casting it in an unfavourable light. 95 All such changes were introduced within a month of changes to the Polska Press management board and in defiance of the court order suspending enforcement of the concentration decision.
Therefore, the question of what role competition law and public administration bodies should play in a situation where there are no distinct regulations governing concentrations involving the media is, in fact, a question about the model of governance. If it is correct to say that a state without a pluralistic media is not fully democratic, then it is clear that one of the objectives of public policy should be the protection of media freedom. If, however, neither the legislature nor the executive branchnot even the National Broadcasting Council (dominated by the government majority)respond to disturbing changes in the local and regional media market, and especially the press, this would seem to indicate that the real issue requiring clarification is not whether the competition authority should respond to an apparent breach of constitutional principles, but how it can effectively counteract such a situation, given the legal tools at its disposal.
In his PKN Orlen/Polska Press decision, the President of the Office for Competition and Consumer Protection resembles the protagonist of an ancient Greek tragedy: despite understanding the negative consequences of the situation to which his decision leads, he argues that he cannot issue a different one. Leaving aside statutory competence, such a position cannot be accepted. The overriding aim of public authorities is to protect the constitutional order, and thus the rights of citizens. Any other interpretationamounting to "legal impossibilism" of public authoritiesmust be rejected.
It is difficult to imagine that the European Union can continue to develop as a democratic and free space if it consists of undemocratic states. The problem of media pluralism is not just a domestic issue. There seems little point in holding European Parliament elections in a situation where, in some Member States, voters' access to objective and unbiased information is restricted.
At present, EU institutions are paying a great deal of attention to the question of judicial independence in individual Member States (including, mainly, Poland). This is obviously a vital issue. However, it should be remembered that freedom of speech and the right of access to diverse sources of information are no less important in the European dimension. At a time when online services are becoming globalized, but also when populist movements are growing, the question of developing common principles to guarantee the independent functioning of the media is an equally important task that should be taken up urgently by the EU legislature.
Jonathan Becker, discussing the principles of the media market, distinguished, besides authoritarianism and democracy, the rise of so-called "neo-authoritarianism", a phenomenon characterized by an increasing and strong presence of the state in the scope of transmitted content. As he notes, under a neo-authoritarian system (…) private ownership may be tolerated, but other mechanisms are used to control messages. Subsidies, targeted tax advantages, government advertising and other forms of assistance are used to promote support. To silence critics, the state does not resort to pre-publication censorship so much as economic pressure through selectively applied legal and quasilegal actions against owners. The neo-authoritarian media system also has a weak judiciary that may be pliant to the interests of the political leadership, or which may have difficulty in ensuring that its mandates are enforced. 96 What is worrying is not the mere fact that Becker's description fits the media market in Poland or Hungary, but the fact that the analysis he presented was about Putin's Russia. Since this description, first presented 17 years ago, so accurately characterizes the contemporary media market in two EU countries, it has now become necessary, if not vital, to reflect deeply on the effectiveness of the EU legal mechanisms established to protect media pluralism.

Disclosure statement
No potential conflict of interest was reported by the author(s).