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The Future of Public Service Broadcasting in Serbia

Author(s): Davor Marko / Language(s): English

The transformation of former state television broadcasters in post-socialist states and their transition into Public Service Broadcasters (PSBs) was meant to be one of the most visible achievements in the process of democratization. The transformation aimed to break the monopoly of the state in the sphere of public communication, and to enable citizens to access information freely and control the newly established media institution. Nevertheless, recent studies on the development, work, and challenges of PSBs in post-communist and post-socialist states, including those focusing on the Western Balkans, have demonstrated unpredictable and unexpected results of such reform efforts. Tailored after Western models, and supported throughout various media assistance programs, the public broadcasters developed into politicallydependent, financially unsustainable, non-transparent, and programmatically commercialized broadcasters. The serious debate and policy intervention that would take into account the impact of rapid technological changes and the growing multi-channel environment, coupled with audience fragmentation, are generally missing. This paper examines the status, role, and main challenges of the reform of the PSB in Serbia. Taking into account its turbulent past and political misuse during the 1990s, Radio Television of Serbia (RTS) entered the era of democratization with a highly damaged reputation and poor technical, human, and managerial resources. It was challenging for lawmakers, local experts, and international organizations to create a context conducive to the establishment of PSB, and to foster its development according to ‘European standards’. Additionally, the status and operation of RTS was constantly endangered due to the non-transparent and personalized style of management and unsustainable financial planning, and additional challenges caused by technical and digital developments were not approached properly. In order to assess the achievements of the transformation of PSB within the four main domains of analysis – socio and political aspects, regulation, funding, and digitalization – this paper will address three main research questions. The first question is related to the current operation of the PSB in Serbia, taking into account its regulation, status, model of funding and program quality. The second question assesses the entire process of creation of media policies and laws regulating the status of PSB in Serbia, including the actors in this process, their relations and influence. The final question addresses the main challenges of PSB in Serbia with regard to technology innovation and digitalization, use of the new media, and the PSB’s relation with the audience. Transformation of the former state- and regime-controlled RTS into a public service was a big challenge. Primarily, its transformation shared obstacles common to other countries in the region – lack of an institutional framework (which is necessary for its functionality), a small and chaotic media market, an economic situation that was additionally worsened after the global economic crisis, political pressures, and lack of transparency and professionalism – which is a general problem when it comes to public institutions in Serbia. What makes the Serbian case specific is the highly negative reputation and image RTS had after the period of the 1990s when the regime of Slobodan Milošević used the public media as a tool of political propaganda. Additionally, its premises and infrastructure were severely damaged in 1999 during the NATO bombing. The research draws upon the ongoing debates on the status and operation of PSB in a changing media environment. Technological development, commercialization and the growing role of the market in defining media roles and audience tastes, information abundance, and audience fragmentation significantly define what we know today as ‘media ecology’. In such a context, the status, funding model, and social role of PSB and its relation with the audience are contested. In addition, the changing context for media policy and the slow process of transformation in the countries of the Western Balkans raise the questions of what stage of development the PSBs in the Western Balkans are in, how the changes of the media landscape influence this process, and what the main obstacles of transformation are. This paper consists of four main chapters. The next chapter outlines the key theoretical concepts and presents the main debates on the status of PSB, its role and challenges on both a global, mainly European, level, and the local (Serbian) level. This chapter also contains a description of the methodology used for the sake of analysis in this paper. The third chapter briefly presents the most important information on the PSB in Serbia, its history, background, establishment, structure, and operation. The following chapters analytically assess the four main dimensions of analysis within the paper: status and regulation, funding, technological and digitalization challenges, and the sociopolitical aspect of PSB operation. The final chapters provide readers with a discussion of the key findings against the theoretical framework and concluding remarks.

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The Future of Public Service Broadcasting in Bosnia and Herzegovina

Author(s): Tea Hadžiristić,Nidžara Ahmetašević / Language(s): English

Public Service Broadcasting (PSB) in Bosnia and Herzegovina is in crisis. Since its creation in 2002, it has steadily been losing both revenue and audience. The fact that it is dysfunctional and highly politicized has brought it to the verge of financial collapse. The state broadcaster, BHRT, narrowly averted being shut down in June 2016 due to a lack of funding, and its fate remains uncertain. The catastrophic economic situation, lack of substantive progress towards EU accession, fragile civil society, and state capture make the situation more difficult. One of the main challenges for PSB in post-communist countries is ending the capture of the state by political parties, which in BiH is additionally complicated by ethnopolitics and legal uncertainty, which results from what Zielonka and Mancini call “floating laws” – frequent changes to legal frameworks and weak and selective rule of law. This paper probes the future prospects for PSB in BiH by looking at the developmental path of PSB and its current situation, taking into consideration these complex contextual challenges. Given the challenging situation with respect to the development and functioning of PSB in BiH, the paper discusses three aspects relevant to understanding its prospects. First, the development of the policy framework for PSB is examined by looking at how the initial media policy was adopted and what roles were played by key actors, such as the EU, international donors, local political elites and civil society, in policy-making processes. Special attention is placed on exploring the impact that EU accession criteria have had on policy-making regarding PSB. Secondly, the current situation with respect to the functioning of PSB in BiH is explored, particularly examining political, legal and financial factors. Finally, the paper studies the future prospects of the PSB system in the context of a rapidly changing multi-channel environment driven by convergence, digitalization, and the proliferation of social media and new media platforms in general. This analysis is positioned within the context of contemporary debates on the future of PSB, especially with regard to its legal, financial, technological, and socio-political dimensions. Special attention is paid to the role of PSB in postsocialist states, as well as the specific nature of the post-war political situation in BiH, its power-sharing structures, and implications for the functioning of PSB. In order to approach these issues, the paper draws on the work of Jakubowicz on public broadcasting in post-communist settings, (2004, 2008) and Hallin and Mancini’s work on political parallelism and colonization of the media (2004, 2011). The prospects of PSB in post-communist transitional societies are analyzed in relation to the work of Jakubowicz and Sukosd, Zielonka and Mancini, and Voltmer. For a better understanding of the broader political context, we refer to Bugarič’s concept of unfinished transition and state capture in Europe’s peripheries, as well as Mujkić’s writing on Bosnian ethnopolitics, to analyze the coalescence of the political elite and national divisions in BiH. Finally, this paper relies on contemporary studies of the media in South East Europe (Petković, Hrvatin, Milosavljević) and BiH in particular. The paper argues that the transformation of the state broadcasters into a genuine PSB in BiH has so far failed with respect to all of the core elements of such a system: funding, independence, remit, and adoption of new technologies. We ascribe this primarily to institutional inertia and subsequent politicization of the public sphere. At the same time, the ongoing debate about PSB in BiH is largely anachronistic, and fails to capture the core challenges and articulate much needed innovative policy solutions that would look beyond the now largely outdated, defunct model of PSB that was introduced in 2002. PSB in BiH is a victim of the political colonization of the media sphere, and weak, dysfunctional state institutions that suffer from the chronic disregard for law demonstrated by ruling elites. The paper first gives an overview of key theoretical concepts and debates relevant to understanding contemporary trends in PSB development, globally and regionally. The next section provides an insight into the overall country context relevant to understanding the contemporary developments regarding PSB in BiH, followed by an outline of the key findings regarding the four crucial dimensions related to PSB in BiH: regulation, funding, technology, and socio-political factors. After a discussion of the key findings and a brief conclusion, the paper ends with a list of recommendations addressed to key stakeholders involved in PSB reform in BiH.

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The Future of Public Service Broadcasting in Kosovo

Author(s): Naser Miftari / Language(s): English

With a population of 1.8 million, where Albanians make up more than 90 percent, Kosovo is the smallest and the last territorial unit that emerged as an independent state from former Yugoslavia. Formerly, it had the status of an autonomous province in Yugoslavia and later Serbia. Then for almost a decade before declaring independence in 2008 Kosovo was under the functional governance of the United Nations Mission in Kosovo (UNMIK) a UN-led mission mandated to run the day to day affairs and set up institutions of self-government in the post-conflict Kosovo, based on the UN Security Council Resolution 1244 adopted in June 1999. The development of the media sector in Kosovo was part of the UNMIK mandate and under a decade-long international management, the media sector experienced important transformation. The liberal media regime introduced by UNMIK was successful in ensuring the diversification of the media sector. However, the liberalization of the media sector and the post-conflict rapid increase in media outlets has led to a saturated and weak media market with declining sources of revenue. One of the major projects in the media sector initiated by UNMIK in post conflict Kosovo was to set up the country’s national public broadcaster – Radio Television of Kosovo (RTK). This paper investigates the current position, role and functioning of RTK – in a diachronic perspective - from its inception in 1999 to the present. It explores whether the overall context in which the RTK is embedded provides a favorable environment for its future prospects and continued development by focusing on the challenges that RTK is facing at present with respect to regulatory, financial, technological and socio-political trends. Upholding the independence and long-term sustainability of RTK are commitments that the Kosovo Government set out to meet upon embarking on the European integrations process. In 2015 Kosovo signed the Stabilization and Association Agreement (SAA) as a first important step towards the European integrations process. Meanwhile, the need to address the vulnerable position of RTK and ways to ensure its editorial independence, have been systematically highlighted in the EU’s Kosovo progress reports in recent years. From the EU perspective, nurturing the independence and financial sustainability of RTK is seen as a firm assurance that Kosovo will continue to have a universally accessible public forum where ideas, opinions and political views are presented and debated. It is also a firm assurance that the diverse segments of Kosovo’s multicultural landscape will feel represented. However, keeping on air a public broadcasting system fully dependent on state budget and not vulnerable to political interference, in Kosovo’s conditions, seems difficult, if not impossible. The paper is based on the review of different processes related to the developments around RTK. It includes analysis of legislation, strategic documents, official correspondence between Kosovo legislators, the European Broadcasting Union (EBU) and Organization for Security and Cooperation in Europe Mission in Kosovo (OSCE) as well as interviews with a number of interlocutors (media experts, RTK managers, former RTK consultants and other stakeholders). The analysis is framed within contemporary international debates on the future of PSB in a changing media environment and taking into consideration specificities of the development of PSB in post-communist societies and Western Balkan countries in particular. The paper also explores the current perspective and challenges for future development of PSB (e.g. digitalization and the EU driven perspective on commercialization etc.) In light of the new paradigm promoted by the EU with provisions that emphasize an inherent bias toward market liberalization, it is important to understand the implications that such policies might have for the prospects of the media market and the challenges that such policies entail with regards to access and future paths of the PSB development in Kosovo. In efforts to provide a coherent outlook on the present and the future of RTK the research is guided by three broad questions. The first question relates to the process of initial media policy adoption and the role of various actors played within it (e.g. influence of EU, local power elites, etc.). The second question explores the current situation of PSB and the extent of implementation of the current media policies. The third question seeks to provide answers to the future developments and prospects of PSB in Kosovo. The paper sets a theoretical and analytical framework against which the analysis of RTK is conducted. It is divided into three sections. The first section reflects on the contemporary debates on PSB on a global and EU level followed by an outline of relevant characteristics of PSB in postcommunist and Western Balkan countries. The section also takes into account some of the relevant approaches to explain the PSB transformation in the specific context. It explores propositions put forward by Jakubowicz and Sükösd8 on the idealistic, mimetic and atavistic orientations in the transformation of PSB in the former communist bloc, propositions that were further advanced in Voltmer, to see whether the same can be applied in the trajectory of the setup, development and current operation of Kosovo’s PSB. The second section provides a brief overview of the methodological approach used in this research. The third section, the analysis section, concludes with a discussion of the research findings and offers a set of recommendations that could be useful in addressing the current status of RTK and the challenges ahead in the future.

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The Development and Future of PSB in Macedonia: Towards the Construction of a Participatory PSB Model

Author(s): Igor Micevski,Snezana Trpevska / Language(s): English

Parliamentary democracy in Macedonia was established with the Constitution of 1991. The multi-party system is marked by an ethnically-based divergence where the main political parties are divided into two ethnic blocks representing the country’s Macedonian majority and Albanian ethnic community. The issue of the power balance between the two communities led to a brief war in 2001, following which a new agreement was reached to share power at both the central and local level. Over the last several decades the Macedonian political system has not evolved into a consolidated democracy. On the contrary, since the populist VMRO-DPMNE took over the government in August 2006, converse trends have led the state into a direction of stronger authoritarianism. Consequently three successive Freedom House reports categorized Macedonia in the group of so called ‘hybrid regimes’ – formal democracies that manifest authoritarian particularities. The last Freedom in the World Report states that Macedonia has lost its designation of ‘electoral democracy’ as it does not meet even the basic standards. One of these standards is related to providing “significant public access of the major political parties to the electorate through the media…” Taking into account the process of democratic consolidation and the development of the media system in Macedonia, this paper analyses the transformation of its public broadcaster and the pressure from below for greater civic participation in both its decision making processes and its content and programming. Applying Hallin and Mancini’s theoretical framework, Macedonia’s political system can be classified as being closest to the Mediterranean or Polarized pluralistic model with: a strong interventionist role of the state, political parties divided along ethnic lines and the ruling party entering into a coalition with the ethnic party that won the majority of votes from the Albanian electorate (parallel majoritarian democracy), political parties having a dominant role in the social processes and placing group interests before individual interests (organized pluralism), late democratization of institutions, deep clashes among political actors and contestation of the legitimacy of the political system as a whole (polarized pluralism) and a widespread culture of clientelism. All this bears direct consequences on the media system and on public service broadcasting. As the country has moved strongly towards authoritarianism in recent years, an assessment is necessary of where PSB stands now and what (if any) its future might and should be. This paper will discuss the challenges PSB in Macedonia is currently faced with and explore perspectives for overcoming the obstacles for its transformation by considering the four normative principles of PSB: citizenship, universality, quality and trust. Being central to the idea of PSB, these concepts are regained in the ongoing debates on PSB in a changed setting. PSB, by definition, is envisaged as a space which enables the flourishing of a critical and vibrant public sphere and, therefore, it has a crucial role in enabling citizens’ active participation in the process of social change. The normative value of Habermas’s theory of the public sphere remain a critical tool for studying the PSB role in contemporary democratic societies. Habermas argued that access to the public sphere should be open in principle to all citizens and it is in the PSB core remit to enable inclusiveness as a crucial democratic principle. The PSB should play a crucial role in sustaining the public sphere and providing citizens an opportunity to be part of it. In line with this, the paper examines the possibility of citizens’ stronger participation through the concept of Public Service Media and active citizenship. Initially, this paper aims to identify the challenges PSB faces in Macedonia compared with similar dilemmas in Western democracies, and, secondly, its goal is to position Macedonian PSB in a normative framework for future transformation. Two major challenges to PSB, of relevance to Macedonia, are identified in the literature with respect to the digital age: (i) commercial pressure and pressure from European competition regulation, by which it is claimed that PSB is pushed to the margins, making it obsolete, and (ii) technological pressure – meaning that new technologies and the internet era are dramatically changing the patterns of media consumption, so the main challenge for PSB is how to reach the fragmented audiences and how to encourage their motivation, as citizens, to participate in their programs. However, Macedonian PSB faces more pressing challenges. This is the reason why this paper is based on three main claims which will be further explored. First, Macedonian Radio-television (MRT), on top of challenges of commercial pressure and pressures from new technologies, faces the pressure of political authoritarianism as its most important predicament. Second, MRT has a future in the specific socio-political context only if it moves towards a ‘participative model’ to match the pressures from societal groups for participatory democracy, and, thirdly, establishing an enduring relationship with the public and civil society is the first condition for PSB to regain trust and legitimacy in the society. In the analysis of the transformation of PSB in Macedonia we have used the conceptual frameworks developed within the comparative media systems and media policy studies. In addition, in an attempt to detect the methods of transformation we rely on the critical theory of political economy and on those scholars and policy-makers who argue that PSB is still a legitimate form of media organization in contemporary societies, with the same basic functions adjusted to the new technological environment. We draw our arguments on the conceptual distinction between the three regulatory approaches for the future transformation of PSB, taking the stance that with the current societal and political tendencies in the country the policy makers and the national PSB should follow the approach of ‘adding to broadcasting’. This approach maintains the idea that the traditional broadcasting services of PSB are of crucial importance, but adds new services as equally important for its redefined remit. Following the introduction, the next section provides a discussion on the contemporary theoretical and policy debates concerning the future of PSB, also highlighting some of the key issues relevant for post-communist countries and describing the methodological approach. Section 3 contains an overview of the country’s political and social context, a brief description of the media landscape and the structure of Macedonian PSB. In Section 4 we isolate some of the most pressing political challenges – including the concerns that arise from the increased tendency toward authoritarianism. Here we also discuss the financial and technological aspects of the MRT operation and analyse the fulfillment of its socio-cultural functions. In Section 5 we discuss our findings in the context of wider theoretical debates and emphasize the key trends and challenges for the future development of PSB. We conclude in Section 6 with the development of ideas for the future of PSB that would overcome present political challenges and would be based on a participatory model. In the end, in Section 7 we give some recommendations for the future direction of the PSB transformation in the country.

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Public Service Broadcasting in Montenegro

Author(s): Nataša Ružić / Language(s): English

The aim of this paper is to examine the status and operation of the public service broadcaster in Montenegro and the process of transformation of the state-controlled Radio Television of Montenegro (Radio i Televizija Crne Gore, or RTCG) into a public service broadcaster. The paper elaborates on the current situation with RTCG and attempts to provide insights into the prospects for its future, in the context of contemporary European and local debates, tackling the obstacles, challenges and changing policy streams when it comes to public media. In doing so, special attention is given to the political, economic and social factors that influence the transformation of the state broadcaster in Montenegro. The former state controlled broadcaster was formally established as a PSB in 2002, and this is when the transformation process started. The path towards the development of PSB was not an easy task given the complex contextual factors and obstacles that RTCG faced. The former state broadcaster RTCG, remembered for the dissemination of hate speech during the Yugoslav wars during the 1990s, for political obedience to the ruling party and for its financial ruin, was suddenly supposed to transform itself into a geniune PSB to serve primarily the citizens of Montenegro. Moreover, such a transformation was happening in an extremely complex political and economic context: the country found itself in the midst of democratization and liberalization processes, while at the same time negotiating its accession to the EU. The financial crisis put immense pressure on the government and the media market, limiting the scope of any intervention that aimed at the sustainable institutional transformation of RTCG. Taking these contextual factors, and the dynamics they produced, into consideration, this paper attempts to answer three sets of questions. First, how the initial media policy and regulations in regard to PSB were adopted, who the main actors were in the process (considering the EU influence), and how these actors interacted with each other. Second, what is the current situation with the PSB regarding the implementation of policies and reforms, giving special attention to the PSB remit, funding model, formal and de-facto independence, market share, and progress regarding the digital switchover in Montenegro. And, finally, what are the key challenges for the future development of PSB in Montenegro, taking into account the impact of new technologies, convergence and digitalization on the prospects of the PSB in the rapidly changing multi-channel environment. Another aspect of interest to this study is that of the influence of the EU on the national media policy due to the competition approach of the EU. Last but not least, this research question also relates to the overall changes in the broadcasting market, with the proliferation of new media platforms and the increased commercialization of broadcasting. In order to answer these questions, the paper heavily relies on contemporary scholarly debates on the future prospects of PSB, especially drawing upon the analysis and theoretical propositions by Jakubowicz , Picard and Siciliani , Rumphorst , Moe , Hallin and Mancini. Furthermore, special attention is given to the role, function and prospects of PSB in post-communist, transitional societies as analyzed in the works of Car and Veljanovski. In the search for an answer on the abovementioned questions, the paper provides an analysis of the existing legislation, as well as semi-structured interviews with members of the administrative bodies of the public service broadcaster and media experts in Montenegro. This paper presents the argument that the former state-owned media company in Montenegro was not fully transformed into a public service broadcaster. After taking into consideration the key debates, contextual factors, and contemporary trends relevant to the development of a PSB, paper argues that the transformation of the state-broadcaster into a genuine PSB in Montenegro has so far not been successful. As will be demonstrated, the PSB remains a highly politicized and dysfunctional institution, while policy debates are centered mainly around basic issues of financial sustainability and political (in)dependence. At the same time, there is no substantial debate on the role of PSB in the society, its relevance in the convereged digital environment, and its public service function. Given the current situation, the future of PSB in Montenegro seems bleak, to say the least. The paper consists of five sections. In the first part of this paper the PSB is analyzed from a theoretical point of view, while in the second part of the paper the process of transformation of RTCG as a state media into a public service broadcaster is considered. The second chapter will deal with the definition of public service broadcasting and basic characteristics of this system, including analysis of debates on the global and local levels, outlining the opposing views of theorists and international organizations concerning legislation, models of funding, remit debate and technology debate. The following subsections present debates on PSB in the countries of the Western Balkans, as well as a methodological framework used for research and analysis. In the third chapter the paper will present the public service broadcaster in Montenegro and identify the problems faced by this media outlet. In the fourth chapter we will analyze the legislation in Montenegro, the funding of the PSB, the process of digitalizing and the sociological, cultural and political aspects in which the public service broadcaster is trying to operate. The concluding chapters include a discussion of the main findings, final remarks and recommendations.

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The Development of an E-Procurement System in Bosnia and Herzegovina

Author(s): Ivan Kutleša / Language(s): English

The establishment of a single portal for e-procurement (www.ejn.gov.ba) in late 2014 is a good basis for the development of an efficient e-procurement system in BiH. However, so far, approximately one half of the functional modules needed for a completed system of electronic public procurement have been implemented, and important formal-legal preconditions, primarily bylaws from the Law on Electronic Signature and the Law on Public Procurement, are missing. Those bylaws would enable electronic submission and bid evaluation. All of this indicates the electronic procurement system is still in an early developmental phase. That is why it is crucial that all elements of an electronic public procurement system are established as soon as possible, because they can significantly contribute to the improvement of transparency, efficiency and cost-effectiveness in public procurement in Bosnia and Herzegovina.

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Transparent Public Procurement in Bosnia and Herzegovina: New Solutions for an Old Problem

Author(s): Nermina Voloder / Language(s): English

Although the adoption of the Law on Public Procurement for Bosnia and Herzegovina in 2014 introduced a series of new provisions aimed at improving transparency in the public procurement process, there are still significant limitations in this domain that can have significant negative implications in practice. Among other things, the legal framework has not ensured adequate availability of information on planned public procurement, given that public procurement plans are not published on the public procurement portal. The published procurement plans do not include procedures for lower value contracts, and decisions on these contracts are not published. There is a manifest lack of provisions that would contribute to publishing the contracts signed between the public sector and the suppliers. In addition, there are no guidelines developed for the application of tender evaluation criteria, especially criteria for the economically most favourable tender. It is, therefore, crucial to improve legal regulations to remove the identified shortcomings and ensure a significantly higher level of transparency in public procurement in Bosnia and Herzegovina.

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Transparency of Public Procurement in Bosnia and Herzegovina - Between Theory and Practice

Author(s): Nermina Voloder / Language(s): English

Transparency is often singled out as one of the key indicators of a just and functional public procurement system, and it refers to the availability of all relevant information that enables stakeholders to become familiar with the rules and procedures applied in the public procurement process. If a public authority fails to ensure a sufficient level of transparency, it is impossible to ascertain whether the public procurement procedure was conducted impartially and in line with the rules. In that context, transparency in the implementation of public procurement contributes to increasing the accountability of public authorities and more efficient control of public spending. Contracting authorities in Bosnia and Herzegovina (BiH) are under the obligation to transparently conduct public procurement procedures and ensure fair and equal treatment of all tenderers in order to achieve the best value for public money. These principles are stipulated in the Law on Public Procurement in Bosnia and Herzegovina (hereinafter: LPPBiH) adopted in April 2014 as part of the public procurement system reforms and harmonisation of domestic legislation with European Union acquis. The new, modernised legal framework was established in BiH ten years after the adoption of the first Law on Public Procurement in 2004, which had shown numerous shortcomings in practice, including some to do with transparency. Although the new law introduced better norms for the aspect of transparency in public procurement, shortcomings that may have significant implications in practice are still evident. One of the aims of this analysis is to assess the extent to which the legal framework ensures an adequate level of transparency in public procurement in BiH, and how transparency could be improved. The analysis offers insight into the main obstacles to transparency in public procurement, especially in light of international standards and comparative practices, focusing primarily on existing legal and institutional solutions in this domain. It should be noted that the new Law on Public Procurement of BiH has been in force only since November 2014, and that certain bylaws relevant to transparency have not yet been adopted. That is why at this stage of research, insight into the practice of public procurement is still limited. This report focuses on the obligations of public institutions stipulated under the Law on Public Procurement of BiH to independently publish key information on public procurement that will enable the public procurement procedure and provide public insight into the process for awarding contracts. Access to all public information in the possession of any institution in BiH, including specific information on public procurement, may also be requested in line with the laws on free access to information adopted at the state and entity level, but this aspect of transparency is not the subject of the present analysis. This report takes into account the main conceptual discussions of transparency in public procurement processes. It then gives an overview of international standards in this area, focusing on European Directives for conducting public procurement procedures, and on decisions of the European Court of Justice. It also presents comparative practices in transparent public procurement in European Union countries with innovative approaches to improving the public procurement system, such as Slovakia and Portugal. The legal frameworks and practices of Western Balkan countries that have in the past few years made innovations to their legal and institutional frameworks for public procurement as part of the European Union approximation process are subject to a separate analysis. This primarily pertains to the experiences of Croatia, Serbia and Slovenia. Past reports on these issues, as well as the old and new legislative and institutional framework are also analysed. Finally, interviews were conducted with representatives of key institutions, including the Public Procurement Agency (hereinafter: PPA) and the Procurement Review Body (hereinafter: PRB), as well as with representatives of the business community in BiH.

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Analysis of Legal Protection in Public Procurement Procedures in Bosnia and Herzegovina

Author(s): Stanka Pejaković / Language(s): English

Legal protection in public procurement procedures implies a set of legal norms which govern the mechanisms available to participants in these procedures with the objective of protecting their rights and interests. The legal protection framework ensures the realization of several important objectives of public procurement. Competitive and transparent procedures in public procurement assist legal public authorities to get the best value for money when they procure products and services. This results in cost-effective spending of public funds, faster economic growth and greater competitiveness among entrepreneurs. Open and transparent procedures in public procurement influence prevention of discrimination, cronyism and corruption. From the standpoint of the European Union (EU) the objective of public procurement is also to open the market of public procurement for member states, enabling the participation of entrepreneurs in public procurement procedures outside the boundaries of a particular state. Legal protection is very important for the realization of the above objectives of public procurement. Legal protection regulations should ensure equal legal position for all entrepreneurs in public procurement, the efficient and timely implementation of public procurement procedures, and should also enhance legal security in this area. Unregulated or insufficiently regulated legal protection may cause direct damage to the economy as it enables the choosing of bids that are not necessarily the best. The fallout of this includes other negative effects (political, economic, sociological). Efficient legal protection increases the trust of the public in the transparency of procedures, and encourages entrepreneurs to participate in public procurement procedures. Efficient legal protection can also act as a preventive measure against a concrete contracting authority or other contracting authorities, in the sense of ensuring that there is no infringement of public procurement rules. Apart from their prominent position in any legal system, national norms regarding legal protection in the EU member states, candidate status states and accession states are founded in European Law, and as such, they are the result of the harmonization of national legislation with the requirements of European law. In this way the harmonization of legal protection in member states, candidate states and potential candidates is achieved. The request for harmonized procedures in member states derives from an understanding that different procedures in different states have a negative impact on the functioning of a unified European market. The European legislation is important for Bosnia and Herzegovina (BiH) not only as an instrument for the strengthening of the economy, but also in respect of the commitments undertaken earlier to gradually harmonize BiH legislation with that of the EU. One of the areas where BiH legislation is harmonized with European law is the area of public procurement. The subject-matter of this study is legal protection in public procurement procedures in Bosnia and Herzegovina, which is implemented as an administrative and administrative-judicial protection, in the manner of critically deliberating the relevant issues of legal protection of participants in public procurement procedures. The present analysis deals with the existing rules that govern legal protection in public procurement procedures having in mind the potential consequences of incomplete or inadequate regulation, which affects the rights and interests of participants in public procurement procedures. Above all, this study is focused on the analysis of rules which govern the basic legal remedy available to participants in the public procurement procedures against the decision of the contracting authority of the aforementioned action or omission of action or the procedure of the contracting authority, followed by an analysis of appeal in an administrative dispute. In this sense, the present study suggests the direction of possible legal intervention which could improve the legal protection rules in public procurement procedures in BiH with regard to the relevant European and comparative law. Accordingly, in addition to a review of legal protection in accordance with the existing de lege lata, this study also includes questions with regard to what this protection should be in view of the requirements of European law (de lege ferenda). The initial assumption in this analysis is that legal protection in any state is regulated independently, but the autonomy of member states (and future member states that have already undertaken some commitments) is restricted by EU rules. As a result, the conclusions in this study inevitably deal with the influence of the relevant European law regarding the provision of effective legal remedies in public procurement procedures by observing the practice of the European Court of Justice in Luxembourg (the European Court), and the regulations that govern the availability of legal remedies in the area of legal protection in some member states that have implemented European law (such as Croatia and Slovenia). The objective of this study is to see what lessons can be drawn from the experience of the aforementioned states and in what manner these lessons can be applied in BiH law with the aim of further improving the legislation of legal protection. Thus an insight is gained about the relationship between legal regulation and practice, and in this respect the inadequacies in the existing legal protection norms in public procurement procedures in BiH can be observed. The presentation of the methodological and analytical framework of this study (Chapter 2) is followed by a summary of the relevant EU legal acts (Chapter 3) and a subsequent analysis of the legal and institutional framework of public procurement in BiH (Chapter 4). In the chapter on legal protection (Chapter 5) procedural rules are analyzed. The results of this analysis are summed up in the Conclusion (Chapter 6). In Chapter 7 there is a list of proposals for possible decisions with regard to the previously recognized problems.

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Recommendations for the Improvement of Legal Protection in Public Procurement Procedures in Bosnia and Herzegovina

Author(s): Not Specified Author / Language(s): English

Legal protection in public procurement procedures implies a set of legal norms that regulate the mechanisms available to participants in public procurement procedures in Bosnia and Herzegovina (BiH) if participants consider that the decision brought by a contracting authority violates their rights and legal interests. An appropriate normative framework also ensures the realization of fundamental objectives of legal protection in public procurement procedures such as inspiring competition and preventing discrimination, cronyism and corruption. On the basis of such a normative framework, provision of goods and services at the best value for money is ensured, as well as cost-effective spending of public funds, faster economic growth and harmonization with the fundamental principles and other standards of European law.

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Mapping of Key Obstacles to Equal Participation of Companies in Public Procurement in Bosnia and Herzegovina

Author(s): Nermina Voloder / Language(s): English

The public procurement system in Bosnia and Herzegovina (BiH) is characterised by numerous weaknesses and shortcomings. In the ten years of application of the BiH Law on Public Procurement, a range of irregularities in public procurement procedures have been identified, including practices of privileging individual bidders through discriminatory criteria and technical specifications in tender documentation, dividing procurement value into smaller amounts to avoid implementing the public procurement procedure for higher amounts, procurements of goods, services or works without a public procurement procedure, use of annexes to existing contracts to increase the value of procurement, and other ways of changing the terms of contracts based on public procurement procedures. Irregularities and abuses in public procurement have, among other things, contributed significantly to the spread of corruption and to hindering the operation of the private sector in BiH. Research has shown that corruption is one of the most significant obstacles to the work of private companies and to overall economic development, not just in BiH, but in countries of the region as well. Reports by international and non-governmental organisations and representatives of the business sector in BiH have for the past few years pointed out failings and irregularities in the public procurement system that undermine the basic principles of fair and active competition, transparency, equal treatment of bidders, and efficient and responsible public spending. This report resulted from the need to identify key problems in public procurement based on surveying a representative sample of the business community with direct experience of public procurement in BiH. The report is based on the findings of research conducted during 2014 with the main aim of mapping the major obstacles faced by companies in BiH entering public procurement procedures in BiH. Representatives of private enterprises of various sizes (micro, small, medium and large enterprises) and from various branches of the economy throughout BiH participated in the study. The study provides insight into the views and perceptions, as well as the reallife experience of business sector representatives in BiH when it comes to various aspects and phases of public procurement. In that context, this is the first survey study in BiH that identifies key problems in public procurement by relying on the views and experiences of business sector representatives that have participated in public procurement procedures. For the purposes of this report, which presents the main obstacles to the participation of enterprises in public procurement, the respondents answered questions about issues such as availability of public procurement invitations for submitting bids, definitions of eligibility criteria and technical specifications, application of appropriate procedures, transparency of outcomes, legal protection, public procurement contract implementation control, perception of the degree of corruption in public procurement, trust in the fairness and justice of public procurement procedures, etc. The examination of practices that hinder efficient market functioning and the identification of areas of heightened risk of corruption were also recognised in strategic documents of BiH authorities as a necessary measure for the development of efficient anti-corruption policies in BiH. The present study naturally fits into this normative and strategic framework. Namely, given that public procurement is particularly vulnerable to corruption, data from this report can prove useful as guidance for decision makers in BiH working to improve the public procurement regulatory framework and practices. The report first presents the main features of the public procurement system and gives details of the research methodology. Research results that reflect the experience of private sector representatives in public procurement in BiH are set out in the fourth chapter and divided among all the phases of the public procurement cycle. The conclusion sums up the key results and indicates further research and analyses necessary in this area.

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Key Problems in Public Procurement in Bosnia and Herzegovina: Experiences of Private Companies

Author(s): Nermina Voloder / Language(s): English

A survey conducted by Analitika in 2014 showed that the business sector in Bosnia and Herzegovina (BiH) faces numerous obstacles when it comes to participation in public procurement procedures. The survey responses indicate that problems crop up in all phases of the process: during the development of tender documents, the collection and evaluation of tenders, and the implementation of the contract. The majority of respondents believe corruption is widespread in public procurement, and that political or personal connections are a prerequisite for being awarded public procurement contracts. Furthermore, there is a pervasive lack of trust among the business community in the public procurement system and in the likelihood of corruption and irresponsible public spending being sanctioned. The prevalent view is that companies are forced to participate in corruption in order to survive in the market.

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Looking for Shortcuts? Assistance to - and Development of - Public Service Broadcasting in Bosnia-Herzegovina, Serbia, Kosovo, Macedonia, and Albania

Author(s): Mark Thompson / Language(s): English

If we were asked to invent a form of media assistance which combined the maximum number of challenges, it would be hard to imagine anything more formidable than the task of establishing public service broadcasters in transitional (newly democratic) states. When those states are recovering from profound trauma or systemic breakdown, the odds against success become even greater. And when the trauma involved interethnic bloodletting on a vast scale, in which neighbouring countries were complicit, and which was ended only by external intervention by yet other countries, the chances of decisive success become incalculably small. Let me list some challenges – with no certainty that the list is complete. A public service broadcaster (PSB) produces, commissions, and disseminates a range of contents to a universal (non-niche) audience. It has to be enabled and supported by an appropriate legal and regulatory framework, one which entrusts it with a public service mission, establishes suitable mechanisms for funding and accountability while protecting it from interference by parliament and government. It needs to provide a range of programs that “inform, educate and entertain” (the famous mantra) all sectors of the population, aiming for excellence in all strands, skilful enough to blend more rarefied output with populist material, juggling the schedule to reach large audiences with high-quality news and information. It needs to be funded by a mechanism that engages the public (such as the licence fee), on a generous scale and with a stability that allows it to fulfil its mission and to invest for the future. It needs to be technically well-equipped and resourced. If it cannot deliver excellent programmes to the entire population through broadcasting and online, the public is unlikely to wish to sustain it. From all this, it follows that the providers of such assistance need to be prepared to engage on many fronts – journalistic, technical, institution-building, political – and to spend lavishly, with no expectation of rapid results. They need to have the stamina for a lengthy – perhaps endless – political and diplomatic struggle with local elites who will be reluctant to support a project that threatens to take away an important lever of influence; and with a media industry that is likely to resist this non-commercial intruder. They will need to be ready to persuade media professionals and the wider public why they should support a kind of media output which may be unknown in their own language. They will need to invest in institution-building and professionalization: training journalists, editors and managers to fulfil their distinctive mandates in a PSB. They need to provide technical assistance at a high level for producing and disseminating content on several platforms. The prospect of a strong institution devoted to public service provision in the media provokes more or less acute anxiety and resistance among the political class. The preparation and adoption of a suitable legal and regulatory framework – one that provides political and public accountability on one hand, and denies the scope for political manipulation on the other – calls for appropriate international expertise, sensitively offered, and also for dialogue with law-makers, media professionals, and civil society groups. Finally, the suppliers of such assistance must be prepared for a long and patient (but also vigilant) engagement which may fail even after the actual steps have been taken. For laws can be enacted and not implemented. Journalists can be trained only to find they are unable or disinclined to exercise their new skills in the given conditions. Outlets can be brought into existence but then fail to find a loyal audience. Codes of ethics and self-regulatory mechanisms can be introduced and fail to make an impact on actual practice. This having been said, it is obvious why the endeavour to establish PSBs in Bosnia and Herzegovina, Serbia, Kosovo, Macedonia, and Albania faced immense difficulties. The country studies in this project, “Development of Functional Media Institutions in Western Balkans – A Comparative Study”, confirm this in useful ways. They also deepen our understanding of the ways in which assistance to PSBs links with assistance to other sectors of the media.

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Starting from Scratch: The Role of Media Assistance in the Establishment of Independent Media Institutions in Kosovo

Author(s): Naser Miftari / Language(s): English

Kosovo is a Western Balkans state bordering Serbia, Macedonia, Montenegro and Albania. It was the last administrative unit to emerge as an independent state out of the former Yugoslavia, where it had the status of an autonomous province within Serbia. With the dissolution of Yugoslavia in the 1990s, the tensions between Kosovo Albanians and Serbs escalated into a full-fledged conflict between Serbian forces, loyal to the regime of Slobodan Milošević, and the Kosovo Liberation Army (KLA). The conflict ended after an extensive NATO military intervention that forced Serbia to withdraw from Kosovo in 1999 and led to the creation of the Kosovo protectorate under the supervision of the United Nations Mission in Kosovo (UNMIK). UNMIK administered Kosovo until the country proclaimed independence on February 17, 2008. Following independence UNMIK began to downsize and the European Union Rule of Law Mission in Kosovo (EULEX) was introduced. This development followed the conditions set forth in a UN endorsed plan for an internationally supervised independent Kosovo.

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Limited Assistance for Limited Impact: International Media Assistance in Albania

Author(s): Ilda Londo / Language(s): English

Albania has a population of just under three million, according to 2011 census. The country has undergone a profound economic transformation over the past two decades, from a centrally planned to a free-market economy. However, there is significant economic disparity between the capital, Tirana, and other nearby, developed cities, compared to more remote and isolated areas. The 2011 census revealed that Albanians make up 83% of the population, while Greeks, Roma, Aromanians, Macedonians, Egyptians or Montenegrins respectively make up less than 1% of the population. However, 14% of the population did not respond to the ethnicity question. Albania’s political system is that of a parliamentary multi-party democracy. The prime minister is designated by the parties that form a majority coalition. The president is elected by the parliament for a five-year term.

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Public Access to Local Budgets: Making Local Government Budget Documents Easily Available to Citizens in Bosnia and Herzegovina

Author(s): Mirna Jusić / Language(s): English

Easy access to and the availability of budget documents is considered to be a key indicator of transparent budgeting practices. In Bosnia and Herzegovina (BiH), important budget documents at the local government level are frequently not easily available to citizens. Some documents that would facilitate understanding of budgetary matters among citizens – such as citizens budgets – are not produced at all. Such practice can contribute to citizen distrust and lower political participation, reflected in a lower voter turnout. Moreover, a lack of transparency can weaken oversight of local government performance. Although local government budgeting in BiH certainly needs to undergo substantial reform in the long run to achieve greater transparency, there are a number of smaller-scale reforms that policymakers in BiH can focus on to yield more accessible, more transparent budgets as a first step towards such reform.

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Preporuke za unaprjeđenje pravne zaštite u postupcima javne nabave u Bosni i Hercegovini

Author(s): Not Specified Author / Language(s): Bosnian

Pravna zaštita u postupcima javne nabave podrazumijeva skup pravnih normi koje uređuju mehanizme koji stoje na raspolaganju sudionicima u postupcima javne nabave u Bosni i Hercegovini (BiH), ako smatraju da su im odlukom ugovornoga tijela povrijeđena njihova prava i pravni interesi. Adekvatan normativni okvir osigurava i ostvarivanje temeljnih ciljeva pravne zaštite u postupcima javne nabave, kakvi su poticanje konkurencije, sprječavanje diskriminacije, nepotizma i korupcije. Na temelju takvog normativnog okvira, omogućava se i nabava roba i usluga bolje kvalitete za nižu cijenu (engl. best value for money), utječe se na racionalno trošenje javnopravnih sredstava i na brži gospodarski razvoj, te se osigurava i prilagodba temeljnim načelima i drugim standardima europskoga prava.

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Transparentne javne nabavke u Bosni i Hercegovini: Nova rješenja za stari problem

Author(s): Nermina Voloder / Language(s): Bosnian

Iako je usvajanjem Zakona o javnim nabavkama u Bosni i Hercegovini iz 2014. godine donesen i niz novih odredaba koje imaju za cilj unaprijediti transparentnost u procesu javnih nabavki, i dalje u tom domenu postoje ograničenja koja mogu imati značajne negativne implikacije na praksu. Zakonskim okvirom, između ostalog, nije osigurana adekvatna dostupnost informacija o planiranim javnim nabavkama, budući da se planovi javnih nabavki ne objavljuju na portalu javnih nabavki. Objavljeni planovi nabavki ne uključuju postupke za dodjelu ugovora male vrijednosti, niti se odluke o dodjeli ugovora putem ovih postupaka objavljuju javno. Uočljiv je nedostatak odredaba koje bi doprinijele objavljivanju ugovora koje javni sektor sklapa sa ponuđačima. Također, nisu razvijene smjernice za primjenu kriterija za ocjenjivanje ponuda, posebno kriterija ekonomski najpovoljnije ponude. Stoga je od ključne važnosti unaprijediti zakonsku regulativu kako bi se uklonile uočene manjkavosti, te osigurao znatno veći nivo transparentnosti u javnim nabavkama u Bosni i Hercegovini.

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Transparentnost javnih nabavki u Bosni i Hercegovini - Između teorije i prakse

Author(s): Nermina Voloder / Language(s): Bosnian

Transparentnost se često izdvaja kao jedan od ključnih pokazatelja pravednog i funkcionalnog sistema javnih nabavki, a podrazumijeva dostupnost svih relevantnih informacija koje omogućavaju zainteresiranim subjektima da budu upoznati sa pravilima i procedurama koje se primjenjuju u procesu javnih nabavki. Ukoliko javni organ ne osigura adekvatan nivo transparentnosti, nije moguće provjeriti da li je postupak javne nabavke proveden nepristrasno i u skladu sa procedurama. U tom kontekstu, transparentno provođenje javnih nabavki doprinosi većoj odgovornosti javnih organa i efikasnijoj kontroli trošenja javnih sredstava. Ugovorni organi u Bosni i Hercegovini (BiH) dužni su transparentno provoditi postupke javne nabavke, osigurati jednak i fer tretman svih ponuđača, a sve sa ciljem postizanja najbolje vrijednosti za javni novac. Ovi principi propisani su Zakonom o javnim nabavkama u Bosni i Hercegovini (u daljnjem tekstu: ZJNBiH), koji je usvojen u aprilu 2014. godine, kao dio reforme sistema javnih nabavki i usklađivanja domaćeg zakonodavstva sa legislativom Evropske unije. Novi, modernizirani zakonski okvir u BiH uspostavljen je deset godina nakon usvajanja prvog Zakona o javnim nabavkama iz 2004. godine, koji je u praksi pokazao brojne manjkavosti, između ostalog, i u domenu transparentnosti. Iako je novim zakonom bolje normiran aspekt transparentnosti u javnim nabavkama, i dalje su uočljivi nedostaci koji bi mogli imati značajne implikacije na praksu. U ovoj analizi upravo je jedan od ciljeva procijeniti u kojoj mjeri zakonski okvir osigurava adekvatan nivo transparentnosti u javnim nabavkama u BiH, te na koji bi se način transparentnost mogla unaprijediti. Analiza nudi uvid u glavne prepreke transparentnosti u oblasti javnih nabavki, posebno u svjetlu međunarodnih standarda i komparativnih praksi, prvenstveno se fokusirajući na postojeća zakonska i institucionalna rješenja u ovoj oblasti. Potrebno je napomenuti da se novi Zakon o javnim nabavkama BiH primjenjuje tek od novembra 2014. godine te određeni podzakonski akti relevantni za transparentnost još nisu doneseni. Iz tog je razloga uvid u praksu javnih nabavki ograničen u ovoj fazi istraživanja. Ovaj izvještaj stavlja fokus na obaveze javnih institucija da, u skladu sa Zakonom o javnim nabavkama BiH, samoinicijativno objavljuju ključne informacije o javnim nabavkama, koje omogućavaju provođenje postupka javnih nabavki, ali i uvid javnosti u proces dodjele ugovora. Također, pristup svim javnim informacijama u posjedu bilo koje institucije u BiH, uključujući i specifične informacije o javnim nabavkama, moguće je zahtijevati u skladu sa zakonima o slobodnom pristupu informacijama, koji su usvojeni na državnom i entitetskom nivou, no taj aspekt transparentnosti nije predmet ove analize. Za potrebe ovog izvještaja u obzir su uzete glavne rasprave konceptualne prirode kada je u pitanju transparentnost u procesima javnih nabavki. Potom je urađen pregled međunarodnih standarda u ovoj oblasti, sa fokusom na Direktive Evropske unije o provođenju postupaka javne nabavke, kao i na presude Evropskog suda pravde. Također, predstavljene su komparativne prakse u domenu transparentnih javnih nabavki u zemljama Evropske unije, koje imaju inovativne pristupe unapređenju sistema javnih nabavki, poput Slovačke i Portugala. Posebno su analizirani zakonski okviri i prakse zemalja regije zapadnog Balkana, koje su u posljednjih nekoliko godina inovirale svoj zakonski i institucionalni okvir u ovom domenu, kao dio procesa približavanja članstvu u Evropskoj uniji. Ovdje se prije svega misli na iskustva Hrvatske, Srbije i Slovenije. Analizirani su i dosadašnji izvještaji u ovoj oblasti, te stari i novi zakonski i institucionalni okvir. Konačno, urađeni su intervjui sa predstavnicima ključnih institucija, uključujući Agenciju za javne nabavke (u daljnjem tekstu: AJN) i Ured za razmatranje žalbi (u daljnjem tekstu: URŽ), kao i sa predstavnicima poslovne zajednice u BiH.

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Zašto parlament ne nadzire Upravu za indirektno oporezivanje BiH?

Author(s): Mirela Hodović / Language(s): Bosnian

Parlamentarni nadzor predstavlja jedan od glavnih postulata demokratskog društva i političkog sistema države. Značaj ovog koncepta ogleda se u primjeni niza instrumenata kojima se nastoji osigurati efikasan parlamentarni nadzor nad institucijama izvršne vlasti. Ovaj vid demokratske kontrole i nadzora, posebno je bitan u oblasti sigurnosnog sektora, kome su u skladu sa odgovarajućim zakonima povjerene specifične nadležnosti. Parlamentarna skupština Bosne i Hercegovine, putem Zajedničke komisije za odbranu i sigurnost provodi parlamentarni nadzor nad 15 institucija sigurnosnog sektora koje djeluju na državnom nivou. Ovo parlamentarno tijelo redovno prati stanje i probleme sa kojima se suočavaju sigurnosni akteri u praksi, te u skladu sa svojim nadležnostima utiče na zakonitost, efikasnost i efektivnost njihovog rada.

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