“All parties out, independence an essential criterion”

The lawyer Vincenzo Iacovino, who has always been attentive to RAI issues and committed to protecting the rights of its workers, intervenes on the matter of the renewal of the Board of Directors, highlighting the role of guarantee and independence of public service media providers also in light of the recent European regulation called the European Media Freedom Act (EMFA), and the problems brought to the attention of the Lazio TAR by CGIL, USIGRAI, FNSI and a group of former company executives.

Parties out of RAI? Yes, but everyone! Independence is an essential criterion required by law and the EU Regulation for Rai’s Board of Directors”, says Iacovino.

“Legislative Decree no. 208 of 2021, implementing Directive (EU) 2018/1808 of the European Parliament and of the Council, of 14 November 2018, amending Directive 2010/13/EU, concerning the consolidated text for the supply of media services, art. 63 regulates RAI, including the appointment of the members of the Board of Directors. Among the requirements required for the appointment of external directors and the eligibility of the internal one chosen by the employees, there are: recognized good repute. , prestige and professional competence. In addition to having the same criteria required for appointment as a constitutional judge, candidates must be people who have distinguished themselves in economic, scientific, legal, humanistic culture or social communication activities, gaining significant experience therein. But one requirement is essential above all others, that is, it must be a candidate with well-known independence of behavior”, he continues.

“The rule that introduces the independence requirement of directors of RAI establishes that the independent director is essentially the representative in whose head none of the specific situations from which it is possible to deduce his “non-independence” exist.

The area of ​​the notion of independence, therefore, is negative: theindependent he is, in the first instance, an exponent whose “non-dependence” is demonstrated on the basis of the non-existence of specific legal or factual, personal or professional situations”, he continues.

“Independence, in addition to being an essential requirement, is a generally applicable requirement with regards to way or the guy management that administrators must guarantee at all times, acting with full independence of judgment and awareness of the duties and rights inherent to the role, in the interests of the sound and prudent management of the company and in compliance with the law and any other applicable regulations.

Independence of judgment and awareness of duties are “general clauses” which appear, in some ways, to be specifications of the general precept ofact informed, referred to in art.2381, c. 6, cc

Therefore, the independence of judgment of the exponent is the means by which the action is guaranteed management or control of the latter is informed (or, at least, can reasonably be informed) according to criteria attributable to the sound and prudent management of the company”.

“Article 63 of the aforementioned Legislative Decree, which in points 12 and 13 provides for cases of ineligibility and forfeiture of the members of the Board of Directors, must necessarily be reconsidered in light of the recent regulation (EU) n.1083 of 2024 , in force from 7 May 2024, called the European Media Freedom Act (EMFA), which establishes a common framework for internal market media services. The Regulation in point 17 of the introduction specifies that “the protection of editorial independence is a preliminary condition necessary for the exercise of the activity of media service providers and for their professional integrity in a safe media environment”. The European Parliament and the Council of the European Union “editorial independence is particularly important for providers of media services that provide news and current affairs content in consideration of the social role that such content plays as a public good”. In point 31 of the introduction to the regulation it is specified that: “Without prejudice to national constitutional laws consistent with the Charter, it is therefore It is necessary for Member States, on the basis of international standards developed in this regard by the Council of Europe, to establish effective legal guarantees for the independent functioning of public service media providers across the Union, without being influenced by interests government, politicians, economic or private”, continues Iacovino.

“Article 4 of the regulation entitled “Rights of media service providers” specifies that “Media service providers have the right to carry out their economic activities in the internal market without restrictions other than those permitted under law of the Union. Member States shall respect the effective editorial freedom and independence of media service providers in the exercise of their professional activities. Member States, including national regulatory authorities and bodies, shall not interfere with policies and decisions editorials from media service providers or attempt to influence them,” he continues.

“Article 5 of the regulation entitled “Guarantees for the independent functioning of public service media providers” underlines that “Member States shall ensure that public service media providers are independent from an editorial and functional point of view and provide in impartially a variety of information and opinions to their audiences, in accordance with their nationally defined public service mission in line with Protocol No. 29. Member States shall ensure that procedures for the appointment and dismissal of the director or members of the Board of Directors of public service media providers are aimed at ensuring independence of public service media providers. The director or members of the Board of Directors of public service media providers shall be appointed on the basis of transparent, open, effective and non-discriminatory procedures and on transparent, objective, non-discriminatory and proportionate criteria established in advance at national level. The duration of their mandate is sufficient to guarantee the effective independence of public service media providers. of their professional activities. Member States, including national regulatory authorities and bodies,” he adds.

“Given the above regulatory premise, it is clear that anyone who is part of the political parties cannot be a candidate, appointed or elected as a member of the RAI board of directors due to the objective impact and influence of the political interests of which he or she bears on the independent functioning of the RAI. public service media provider, in violation of the supranational legislative and regulatory principles just mentioned”.

“If this is valid for those nominated by the government and parliament, who must be chosen among people, we remember, who have distinguished themselves for their recognized honourability, prestige and professional competence, in economic, scientific, legal, humanistic culture or social communication activities, gaining significant managerial experience, having the same criteria required for appointment as a constitutional judge, the criterion of independence is still more urgent and binding for the candidate chosen to represent the employees within the Board of Directors, introduced following the “Rai Governance reform”, established with law no. 220 of 28 December 2015. A rule which in any case must be integrated with the principles expressed by European legislation, deemed immediately applicable in the internal legal system of the member state of the union, and also applied by internal judges after disapplication of national legislation possibly deemed to be in conflict with the supranational one”.

“To corroborate what has just been said, the Rai Circular dated 7.5.2024 provides provisions for the “election day” of 8 and 9 June 2024. In particular, taking into account law no. 515/1993, which establishes the of the electoral campaigns for the election to the House and the Senate, as well as law n.28/2000 containing provisions for access to the media during electoral campaigns and for political communication, the Code of Ethics and service provisions n. 86 of 8.10.1993, it is established that: “employees who have accepted electoral candidatures must notify the Company on the same day and are invited, with a view to preventing possible conflicts of interest, to take holidays (or recoveries or permits), or to ask to be placed on unpaid leave, with immediate effect and until the day the polls close, including the run-off operations relating to the municipal elections””.

“The circular continues by specifying that: following the holding of the electoral round, the employee who has been elected is required to give timely and formal communication thereof in order to comply with the prohibitions envisaged for the entire duration of the mandate.

In this regard, it is worth remembering how the trade union acronyms Slc Cgil Fistel Cisl Uilcom Uil Ugl Informazione AdRai and UsigRai, united in a single document, in the aftermath of the reform, underlined: “The permanence of the parties in the management of Rai with an emphasis on the role of the Government and the parliamentary majority is one of our concerns […] In this way we intend to continue to keep high attention on the function of the Councillor-Worker. The candidate must meet the profile of a person with proven history in defense of the Rai Public Service, in defense of the Constitution – starting from art. 21 -, and to protect the autonomy and independence of the company: in a context of leaders appointed by governments and parliamentary majorities, the Advisor expressed by the employees can thus assume a pre-eminent role guarantee for all citizens””.

“It is also worth remembering that SLC-CGIL together with USIGRAI, FNSI and others legitimately considered appeal to the TAR for the annulment of the notice for the submission of candidacy as a member of the Board of Directors of RAI for the purposes of election by the Chamber of Deputies on the assumption that the notice did not provide for a selective procedure in violation of the art. 63 paragraph 16 of law 208/2021 and art. 5 of the EMFA (EU regulation 2024 /19083) which, as explained at the beginning, would ensure the independence of RAI’s governing bodies”, he adds.

“In short, outside the parties of RAI. Noble intentions that can rightly be shared. One wonders, therefore, why, today, for the upcoming elections for the councilor-worker expressed by RAI employees, the CGIL has chosen an organic candidate for the PD, with a long history of militancy in the party, municipal councilor in office, secretary of the local PD until July 2023, former member of the provincial leadership of the PD, former PD candidate in the 22nd elections, currently candidate in the next municipal elections of 8-9 June for the PD. What criterion of independence can this workers’ representative express? candidates from civil society, subject to selection, while on the other hand internal workers are instructed by the CGIL to choose a candidate who is an expression of and organic to a party. A candidate who, for this very reason, does not satisfy the mandatory independence criteria required by law for his role. If you were to be elected, when you sit on the Board of Directors and an indication arrives from the party in which you have been making a career for years, what will the candidate councillor, who has been part of the PD for decades, do? What interests will she respond to? TO the political ones, of which it is the bearer or those aimed at the independent functioning of the public service media provider?

Obviously the necessary reflection is always valid, whatever the party to which one belongs and refers“, concludes Iacovino.

 
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