AUSTRIA

Expert assessment

This statement accurately describes the appointment process for members of the Austrian Communications Authority (KommAustria). KommAustria is composed of five full-time members: a chairperson, deputy chairperson and three members, all appointed by the Bundespraesident or the head of state following recommendations from the federal government. Term of office is six years, renewable. Appointments are preceded by a public invitation to apply for the position, in accordance with procedures for civil servant appointments under the Public Tender Act of 1989. It should also be noted that KommAustria is not the only media authority in Austria; it shares also a number of regulatory responsibilities with the Austrian Regulatory Authority for Broadcasting and Telecommunications (RTR-GmbH) and the Telekom Control Commission (TKK). The highest decision-making authority for audiovisual communications in Austria is the Federal Communications Committee (BKS), a judicial body which reviews KommAustria's decisions, monitors compliance with media laws, issues decisions and handles complaints.

KommAustria was established by the KommAustria Act (KOG) in 2001 as the authority responsible for issuing licenses to private television and radio stations, managing broadcasting frequencies, and handling the legal supervision of private and digital broadcasting.48Austria's media regulation framework was revised in October 2010, which formally established KommAustria's independent status in the Constitution, with expanded decision-making and regulatory powers, whereas previously it had operated under the supervision of the Federal Chancellor.

As noted, KommAustria members serve continuous six-year terms until new members are appointed. Professional criteria for membership excludes members of political parties, or of federal, national or European governmental bodies, as well as members of broadcasting companies or lobbyists of a media enterprise.49 Appointments are preceded by an open call for applications, and nominations by the federal government require consent of the Steering Committee of the National Council. KommAustria's members are independent and not bound by any instructions.50 Members can be recalled only in cases of physical or mental incapacity or in cases of serious neglect of duty. A plenary committee within KommAustria establishes these cases.51

The Federal Communications Board (BKS) is a judicial body created by the KommAustria Act (KOG) to review KommAustria's decisions. It is the highest appellate authority, which decides on appeals against KommAustria (with the exception of appeals in administrative penal cases) and on complaints, requests and proceedings concerning violations of administrative broadcasting regulations.52 The BKS is a five-member tribunal; all members are appointed by the federal president on the proposal of the federal government for six-year, renewable terms.53 Three members must be judges. For the appointments of the three judicial members, the federal government is bound by nominees proposed by the president of the Supreme Court and the president of the Court of Appeals in Vienna, respectively, where the BKS has its seat.54 The federal government proposes two additional members; all nominees are selected by these bodies following a public invitation.

Criterion for membership requires members to have a law degree and several years of experience in public administration, legal practice, science, or in "matters coming within the executive powers of the Federal Communications Board."55 Representatives of the government, employees or affiliates of the Austria Broadcasting Corporation (ORF) or another broadcaster, or persons with a close legal relationship with anyone who makes use of an activity of the BKS or is affected by such activity, as well as employees of KommAustria or RTR-GmbH may not be members of the Federal Communications Board. Members of the BKS are independent and not bound by any instructions. In cases of death or resignations, substitute members, appointed by the same process described above, become members for the remaining term length. Membership can be terminated in the case a member fails to appear at three consecutive meetings without cause or if a conflict-of-interest regarding membership criterion comes to light.56 These cases are established by members of the BKS board itself. Appeals against BKS decisions can be filed with the Austrian Constitutional Court (VfGH) and the Austrian Administrative Court.57

As noted above, KommAustria's appointment procedures are based on a public tender process following the appointment procedures for all civil servants in Austria. However, a critical point to be mentioned is that because the federal government nominates KommAustria members, this could give way to a politically one-sided occupancy of the media authority, depending on whether the government has a majority – which was the case from 1970-1983. It also is worth mentioning that even though the law changed in 2010, the former head of the KommAustria, Michael Orgis, was unanimously re-nominated as Chairmen of the new KommAustria. Hence, the consistency of leading personnel during KommAustria's restructuring could be seen as a general weakness of the new system.

On the other hand, KommAustria members are appointed for six-year terms, whereas the government is elected every four years, which could minimise the risk of politically motivated decisions by its members. It should be emphasised again that all KommAustria's decisions are also subject to oversight and review by the BKS, which could serve as a "check" on KommAustria's decisions in the case of its politicisation.

41 See "Reply to the criticisms expressed by the international media against the Media Act," Ministry Of Public Administration And Justice, January 3, 2011, available at: http://www.kormany.hu/en/ministry-of-public-administration-and-justice/news/reply-to-the-criticism-of-the-international-media. See also Criticism 3, in "Criticisms and answers formulated on the subject of the proposed media act examined in a European context," The Ministry of Public Administration and Justice, December 20, 2010, available at: http://www.kormany.hu/en/ministry-of-public-administration-and-justice/news/criticisms-and-answers-formulated-on-the-subject-of-the-proposed-media-act-examined-in-a-european-context.
42 See KommAustria's website, at: http://www.rtr.at/en/rtr/OrganeKommAustria.
43 The number of renewable terms is not specified in the KommAustria Act; appointment procedures are detailed in Section 1(3)(2) and 1(3)(3) in the KommAustria Act (KOG), unofficial translation available in English at: http://www.rtr.at/en/m/KOG.
44 KommAustria Act, Section 3(2), available at: http://www.rtr.at/en/m/KOG.
45 See Austrian Regulatory Authority for Broadcasting and Telecommunications (RTR) at: http://www.rtr.at/en/rtr/RTRGmbH.
46 See Telekom Control Commission (TKK) at: http://www.rtr.at/en/tk/TKK.
47 For a review of KommAustria's regulatory scope see "Executive Summary: KommAustria" in "Indicators for independence and efficient functioning of audiovisual media regulatory bodies for the purpose of enforcing the rules in the AVMS Directive." INDIREG: Preliminary Final Report. Hans Bredow Institute for Media Research the Interdisciplinary Centre for Law & ICT (ICRI), Katholieke Universiteit Leuven, Center for Media and Communication Studies (CMCS), Cullen International. January 2011, available at: http://ec.europa.eu/avpolicy/docs/library/studies/regulators/preliminary_final_report.pdf; pp. 100-102.
48 The Federal Act on the Establishment of an Austrian Communications Authority ("KommAustria") and a Federal Communications Board (KommAustria Act - KOG), Federal Law Gazette I No. 32/2001, unofficial translation available in English at: http://www.rtr.at/en/m/KOG.
49 KommAustria Act (KOG), Paragraph 3(2) and 3(3), available at: https://www.ris.bka.gv.at/GeltendeFassung.wxe?Abfrage=Bundesnormen&Gesetzesnummer=20001213 .
50 KommAustria Act (KOG), Section 6(1), available at: http://www.rtr.at/en/m/KOG.
51 See KommAustria's rules of procedure and its allocation of duties, available in German at: http://www.rtr.at/en/m/GOKOA/Geschäftsordnung_der_KommAustria.pdf.
52 KommAustria Act (KOG), Section 11(2), available at: http://www.rtr.at/en/m/KOG.
53 KommAustria Act (KOG), Section 12(2), available at: http://www.rtr.at/en/m/KOG.
54 KommAustria Act (KOG), Section 12(3), available at: http://www.rtr.at/en/m/KOG.
55 KommAustria Act (KOG), Section 12(5), available at: http://www.rtr.at/en/m/KOG.
56 KommAustria Act (KOG), Section 12 (5) available at: http://www.rtr.at/en/m/KOG.
57 From KommAustria's website, available at: http://www.rtr.at/en/m/InstitKommAustria.