Lietuviškai
Case No. 3/02-7/02-29/03
THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA
RULING
ON THE COMPLIANCE OF PARAGRAPH 4 (WORDING OF 2 JULY 1997)
OF ARTICLE 1, PARAGRAPH 1 (WORDING OF 18 APRIL 1995) OF ARTICLE
2, ITEM 2 (WORDING OF 18 APRIL 1995) OF PARAGRAPH 1 OF ARTICLE
3, PARAGRAPH 2 (WORDING OF 10 DECEMBER 1998) OF ARTICLE 4,
ARTICLE 13 (WORDING OF 18 JULY 2000), PARAGRAPH 1 (WORDING OF 2
JULY 1997) OF ARTICLE 30 AND PARAGRAPH 4 (WORDING OF 20 JUNE
2002) OF ARTICLE 44 OF THE REPUBLIC OF LITHUANIA LAW ON ALCOHOL
CONTROL, AS WELL AS ON THE COMPLIANCE OF ITEMS 7 AND 9 (WORDING
OF 22 JANUARY 2001) OF THE RULES FOR LICENSING THE PRODUCTION
OF ALCOHOL PRODUCTS AS APPROVED BY GOVERNMENT OF THE REPUBLIC
OF LITHUANIA RESOLUTION NO. 67 "ON THE APPROVAL OF THE RULES
FOR LICENSING THE PRODUCTION OF ALCOHOL PRODUCTS" OF 22 JANUARY
2001 WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA
26 January 2004
Vilnius
The Constitutional Court of the Republic of Lithuania,
composed of the Justices of the Constitutional Court Armanas
Abramavičius, Egidijus Jarašiūnas, Egidijus Kūris, Kęstutis
Lapinskas, Zenonas Namavičius, Augustinas Normantas, Jonas
Prapiestis, Vytautas Sinkevičius, and Stasys Stačiokas,
with the secretary of the hearing-Sigutė Brusovienė,
in the presence of:
the representatives of the Seimas of the Republic of
Lithuania, the party concerned, who were Egidijus Rumbutis,
senior consultant of the Legal Department of the Office of the
Seimas, Girius Ivoška, chief specialist of the said department
and the representative of the Government of the Republic of
Lithuania, the party concerned, who was Andrius Miliūnas, chief
specialist of the Legal Division of the Legal Department of the
Ministry of Agriculture of the Republic of Lithuania,
pursuant to Articles 102 and 105 of the Constitution of
the Republic of Lithuania and Article 1 of the Law on the
Constitutional Court of the Republic of Lithuania, on 7 January
2004 in its public hearing heard Case No. 3/02-7/02-29/03 which
originated in these petitions:
1) the 11 January 2002 petition of the Vilnius Regional
Administrative Court, the petitioner, requesting to investigate
whether the provisions of Paragraph 4 (wording 2 July 1997) of
Article 1 and Paragraph 1 (wording of 2 July 1997) of Article
30 of the Republic of Lithuania Law on Alcohol Control are not
in conflict with the principle of a state under the rule of law
which is entrenched in the Preamble to the Constitution of the
Republic of Lithuania and the provisions of Paragraphs 2 and 3
of Article 25 of the Constitution of the Republic of Lithuania;
2) the 1 February 2002 petition of the Vilnius Regional
Administrative Court, the petitioner, requesting to investigate
whether the norms of Paragraph 1 (wording of 18 April 1995) of
Article 2, Item 2 (wording of 18 April 1995) of Paragraph 1 of
Article 3, Article 4 (wording of 10 December 1998) and Article
13 (wording of 18 July 2000) of the Law on Alcohol Control and
the norms of Items 7 and 9 (wording of 22 January 2001) of the
Rules for Licensing the Production of Alcohol Products as
approved by Government of the Republic of Lithuania Resolution
No. 67 "On the Approval of the Rules for Licensing the
Production of Alcohol Products" of 22 January 2001 are not in
conflict with Paragraphs 1 and 4 of Article 46 of the
Constitution of the Republic of Lithuania;
3) the 29 May 2003 petition of the Vilnius Regional
Administrative Court, the petitioner, requesting to investigate
whether the provision of Paragraph 4 (wording of 20 June 2002)
of Article 44 of the Republic of Lithuania Law on Alcohol
Control that enterprises, establishments and organisations must
pay a fine of ten thousand litas for the first violation of the
requirements of Article 30 of this law, and a fine of twenty
thousand litas for the same repeated violation committed within
five years from the imposition of the fine are not in conflict
with Paragraphs 2 and 3 of Article 46 of the Constitution of
the Republic of Lithuania and the principles of justice and a
state under the rule of law which are entrenched in the
Constitution of the Republic of Lithuania.
By the Constitutional Court decision of 29 January 2003,
the 11 January 2002 and 1 February 2002 petitions of the
Vilnius Regional Administrative Court were joined into one case
and it was given No. 3/02-7/02. By the Constitutional Court
decision of 29 October 2003, the 29 May 2003 petition of the
Vilnius Regional Administrative Court was joined with Case No.
3/02-7/02 and it was given No. 3/02-7/02-29/03.
The Constitutional Court
has established:
I
1. The Vilnius Regional Administrative Court, the
petitioner, investigated an administrative case. The court
suspended the investigation of the case by its 11 January 2002
ruling and applied to the Constitutional Court with a petition
requesting to investigate as to whether the provisions of
Paragraph 4 (wording 2 July 1997; official gazette Valstybės
žinios, 1997, No. 67-1660) of Article 1 and Paragraph 1
(wording of 2 July 1997) of Article 30 of the Law on Alcohol
Control (Official gazette Valstybės žinios, 1995, No. 44-1073;
hereinafter also referred to as the Law) are not in conflict
with the principle of a state under the rule of law which is
entrenched in the Preamble to the Constitution and the
provisions of Paragraphs 2 and 3 of Article 25 of the
Constitution.
2. The Vilnius Regional Administrative Court, the
petitioner, investigated an administrative case. The court
suspended the investigation of the case by its 1 February 2002
ruling and applied to the Constitutional Court with a petition
requesting to investigate as to whether the norms of Paragraph
1 (wording of 18 April 1995) of Article 2, Item 2 (wording of
18 April 1995) of Paragraph 1 of Article 3, Article 4 (wording
of 10 December 1998; official gazette Valstybės žinios, 1998,
No. 114-3188) and Article 13 (wording of 18 July 2000; official
gazette Valstybės žinios, 2000, No. 64-1939) of the Law on
Alcohol Control and the norms of Items 7 and 9 (wording of 22
January 2001) of the Rules for Licensing the Production of
Alcohol Products (hereinafter also referred to as the Rules) as
approved by Government Resolution No. 67 "On the Approval of
the Rules for Licensing the Production of Alcohol Products" of
22 January 2001 (Official gazette Valstybės žinios, 2001, No.
8-230) are not in conflict with Paragraphs 1 and 4 of Article
46 of the Constitution.
3. The Vilnius Regional Administrative Court, the
petitioner, investigated an administrative case. The court
suspended the investigation of the case by its 29 May 2003
ruling and applied to the Constitutional Court with a petition
requesting to investigate as to whether the provision of
Paragraph 4 (wording of 20 June 2002; official gazette
Valstybės žinios, 2002, No. 65-2632) of Article 44 of the Law
on Alcohol Control that enterprises, establishments and
organisations must pay a fine of ten thousand litas for the
first violation of the requirements of Article 30 of this law,
and a fine of twenty thousand litas for the same repeated
violation committed within five years from the imposition of
the fine are not in conflict with Paragraphs 2 and 3 of Article
46 of the Constitution and the principles of justice and a
state under the rule of law which are entrenched in the
Constitution.
II
1. The 11 January 2002 petition of the Vilnius Regional
Administrative Court, the petitioner, requesting to investigate
whether the provisions of Paragraph 4 of Article 1 and
Paragraph 1 of Article 30 of the Law on Alcohol Control are not
in conflict with the principle of a state under the rule of law
which is entrenched in the Preamble to the Constitution and the
provisions of Paragraphs 2 and 3 of Article 25 of the
Constitution, is based on the following arguments.
1.1. The legislator points out the striving to influence
certain choice of advertisement consumers as a distinctive
criterion of information which is to be considered as alcohol
advertising. The State Tobacco and Alcohol Control Service
indicated that the statements "If we compare two people who
have the same amount of cholesterol in their blood, those who
never drink wine are at risk of the occurrence of heart and
blood vessels diseases 3 times more frequent than those who
occasionally drink it" and "Does wine protect arteries? Yes.
Therefore, wine is not considered an alcoholic drink" made in
the article "Some Answers to Some Questions and Statements
About Wine" published in No. 2 of the July 2001 supplement
Verslo teisė of the publication Verslo žinios which is
mentioned in the administrative case undoubtedly influence the
choice of advertisement consumers as far as they relate the
consumption of alcohol with curative characteristics. The
Service decided that the fact that any information relates the
consumption of alcohol with curative characteristics is
sufficient to regard such information as alcohol advertising,
i.e. the Service did not investigate in what context the
information had been published and what was its nature, i.e.,
whether it had been commercial or not commercial information.
1.2. Freedom of information is not only freedom to inform
(i.e. to disseminate information), but also the right to
receive information. Untrue information, i.e. disinformation,
is usually prohibited by laws of states. Thus, the requirement
of truth should be applied to information (as well as to
advertisement). The petitioner pays attention to the fact that
the State Tobacco and Alcohol Control Service considers the
information mentioned in the administrative case to be untrue
and misleading on the grounds of the fact that, under Article 1
of the Law on Alcohol Control, ethyl alcohol is attributed to
materials of narcotic effect, although this statement is
immediately followed by an explanation that this is not a
straightforward conclusion. An article published in the
magazine Verslo klasė indicates: "This explains what foreigners
call the paradox of French blood vessels. Seeing the quantity
of wine which is drunk in this country, they do not understand
why there are so few people with heart and blood vessels
diseases in France."
1.3. Given the said legal regulation of the limitation of
alcohol products advertisement and the said practice of the
limitation of alcohol advertising implemented by the state
institution, the petitioner has doubts whether the notion of
alcohol advertisement as entrenched in Paragraph 4 of Article 1
of the Law on Alcohol Control is not in conflict with the
provisions of Paragraphs 2 and 3 of Article 25 of the
Constitution. In the opinion of the petitioner, while applying
Paragraph 4 of Article 1 of the Law on Alcohol Control together
with the limitations of alcohol advertisement established in
Paragraph 1 of Article 30, a threat arises that also
non-commercial information will be attributed to limited
alcohol advertising, i.e. to prohibited information, when there
are no grounds and necessity to limit it.
1.4. The petitioner maintains that the notion of alcohol
advertisement introduced in the Law on Alcohol Control is to be
considered as legally deficient, because it does not establish
any clear criteria on how commercial information should be set
off against non-commercial; in addition, it no longer contains
a notion of indirect alcohol advertisement which included more
criteria for attribution of information to alcohol
advertisement in the former wording of the law. The law also
provides for no exceptions for the forms of information (for
instance, special publications for respective groups of
specialists (doctors, businessmen, etc.)). The legislator
presents only one basic criterion of information which is to be
considered as alcohol advertisement: the striving to influence
the respective choice of advertisement consumers. The
petitioner notes that the practice of the State Tobacco and
Alcohol Control Service demonstrates that both the news from
special foreign magazines and a note on a glass presented in a
humorous context are regarded as alcohol advertisement only
upon this single criterion. As long as such a notion of alcohol
advertisement exists, persons publishing information are not
certain whether any information on alcohol published by them
will be considered as alcohol advertisement. In the opinion of
the petitioner, due to such indefinite regulation, the law
creates preconditions for the executive institution to
establish the content of the norm itself while applying the
law. The Law on Alcohol Control establishes fairly strict
responsibility for violations of limitation of alcohol
advertisement which, according to the amount of fines, more
corresponds to criminal liability. Due to the specified
arguments the petitioner has doubts as to whether Paragraph 4
of Article 1 of the Law on Alcohol Control in conjunction with
Paragraph 1 of Article 30 which limits alcohol advertisement
are not in conflict with the principle of a state under the
rule of law as entrenched in the Preamble to the Constitution,
which implies clarity of legal norms.
1.5. The petitioner also has doubts as to whether the
limitation of information which is not clearly defined does not
violate the constitutional right to impart and receive
information, i.e. Paragraphs 2 and 3 of Article 25 of the
Constitution, because due to the strict sanctions which are
established in Paragraph 4 of Article 44 of the Law on Alcohol
Control the spreader of information can be constrained to
refuse to publish any information on alcohol including the
results of scientific research, sociologic polls, etc., and,
alongside, such information would become inaccessible to
people. On the other hand, those who prepare information
usually specify foreign mass media, including states of the
European Union, as the sources of the said information, while
these sources may be directly available in Lithuania and the
same information is easily accessible for the public on the
Internet.
2. The 1 February 2002 petition of the Vilnius Regional
Administrative Court, the petitioner, requesting to investigate
whether the norms of Paragraph 1 of Article 2, Item 2 of
Paragraph 1 of Article 3, Article 4 and Article 13 of the Law
on Alcohol Control and the norms of Items 7 and 9 of the Rules
for Licensing the Production of Alcohol Products as approved by
Government Resolution No. 67 "On the Approval of the Rules for
Licensing the Production of Alcohol Products" of 22 January
2001 are not in conflict with Paragraphs 1 and 4 of Article 46
of the Constitution, is based on the following arguments.
2.1. According to the petitioner, under Paragraphs 1 and 4
of Article 46 of the Constitution, the priority is granted to
the freedom of economic activity, private business, fair
competition, monopolisation of the market is prohibited,
participants (entities of economy) of the market are nor
differentiated according to the structure of their capital,
etc. The petitioner points out that the legislator, while
detailing the provisions of the Constitution in other legal
acts, established that it is prohibited to establish different
rights, duties or privileges of certain legal persons for the
purposes of discrimination.
2.2. In the opinion of the petitioner, the disputed norms
of Paragraph 1 of Article 2, Item 2 of Paragraph 1 of Article
3, Article 4 and Article 13 of the Law on Alcohol Control and
the disputed norms of Items 7 and 9 of the Rules for Licensing
the Production of Alcohol Products as approved by Government
Resolution No. 67 "On the Approval of the Rules for Licensing
the Production of Alcohol Products" of 22 January 2001 grant
privileges to concrete entities of economy, Item 2 of Paragraph
1 of Article 3 of the Law aims at limiting the private profit
received from production and import of as well as trade in
alcoholic drinks, while the goal which is worded in Paragraph 1
of Article 2 of the Law to decrease the general consumption of
alcohol, alcohol abuse and its damage on health and economy may
be achieved by creating equal conditions for all participants
of the market. In the opinion of the petitioner, the disputed
norms of the Law and the Rules are in conflict with Paragraphs
1 and 4 of Article 46 of the Constitution.
3. The 29 May 2003 petition of the Vilnius Regional
Administrative Court, the petitioner, requesting to investigate
whether the provision of Paragraph 4 of Article 44 of the Law
on Alcohol Control that enterprises, establishments and
organisations must pay a fine of ten thousand litas for the
first violation of the requirements of Article 30 of this law,
and a fine of twenty thousand litas for the same repeated
violation committed within five years from the imposition of
the fine are not in conflict with Paragraphs 2 and 3 of Article
46 of the Constitution and the principles of justice and a
state under the rule of law which are entrenched in the
Constitution, is based on the following arguments.
3.1. Article 44 of the Law on Alcohol Control provides for
economic sanctions for violations of this law. Item 4 of this
article provides that enterprises, establishments and
organisations must pay a fine of ten thousand litas for the
first violation of the requirements of Articles 29 and 30 of
this law, and a fine of twenty thousand litas for the same
repeated violation committed within five years from the
imposition of the fine. The petitioner maintains that these
norms the law do not provide for a possibility to differentiate
an economic sanction according to the noxiousness of
violations, the number and extent of violations committed at
one time, as well as according to other circumstances. The
legislator has established a strictly defined amount of a fine,
but not the minimum and the maximum limits or an amount
relative to annual or fixed in another way income of a subject
of commercial-economic activity. The petitioner has doubts as
to whether the legal regulation, when an economic sanction is
established by a strictly defined sum, is in compliance with
the provisions entrenched in the Constitution. The purpose of
the Law on Alcohol Control is to decrease the general
consumption of alcohol, alcohol abuse, its damage on health and
economy, to establish legal grounds for vesting the right to
produce, sell and import alcohol products specified in this law
with entities of economy. In order to achieve this objective,
the legislator provided for state regulation means. The
petitioner maintains that economic sanctions provided for
entities of commercial-economic activity should be in
compliance with the principles of justice and a state under the
rule of law which are entrenched in the Constitution, should be
adequate to a violation of law, and should correspond to the
sought and universally significant objectives. The petitioner
doubts as to whether the uniform economic sanction of ten
thousand litas and twenty thousand litas for a repeated
violation as provided for in Item 4 of Article 44 of the Law on
Alcohol Control are not in conflict with the principles of
justice and a state under the rule of law which are entrenched
in the Preamble to the Constitution.
3.2. The petitioner maintains that the provision of the
Law on Alcohol Control to impose a concrete fine for the
committed violation is applied to the entities of
commercial-economic activity which have different turnover and
income. A fine of ten thousand or twenty thousand litas can
lead to the bankruptcy of certain entities of economy, while
others, which have larger income, can only loose part of their
profit. In the opinion of the petitioner, a state under the
rule of law should establish and apply just means not
disrupting the business. Thus, the petitioner has doubts
whether Item 4 of Article 44 of the Law is not in conflict with
Paragraphs 2 and 3 of Article 46 of the Constitution.
III
In the course of the preparation of the case for the
Constitutional Court hearing written explanations were received
from the representatives of the party concerned, the Seimas,
who were E. Rumbutis, senior consultant of the Legal Department
of the Office of the Seimas, G. Ivoška, chief specialist of the
said department, and a representative of the party concerned,
the Government, who was V. Grušauskas, Secretary of the
Ministry of Agriculture.
1. E. Rumbutis maintains that the provision of Paragraph 2
of Article 25 of the Constitution that the human being must not
be hindered from seeking, obtaining, and imparting information
as well as ideas implies that the state, its institutions,
officials, natural and legal persons may not restrict this
right, nor create artificial obstacles for its implementation.
However, Paragraph 3 of Article 25 of the Constitution, which
provides that freedom to express convictions, as well as to
obtain and impart information, may not be restricted other than
by law, if it is necessary to protect the health, honour and
dignity, private life, and morals of a human being, or to
defend constitutional order, in fact implies that freedom of
information is not absolute and unlimited. Freedom of
information may be restricted, but only by the law and seeking
to protect the constitutional values specified in Paragraph 3
of Article 25: the right to health, honour and dignity, private
life, to defend constitutional order.
E. Rumbutis notes that contradictions often arise between
rights and freedoms of the person on the one part, and
interests of society on the other part. In a democratic society
such contradictions are solved by co-ordinating different
interests and pursuing not to violate their balance. One of the
means of the co-ordination of interests is restriction of
rights and freedoms of the person. A possibility to restrict
rights and freedoms of the persons is also provided for in the
European Convention on Human Rights and Fundamental Freedoms,
Paragraph 2 of Article 10 whereof establishes that the exercise
of freedom to hold opinions, to receive and impart information
and ideas without interference by public authority and
regardless of frontiers, since it carries with it duties and
responsibilities, may be subject to such formalities,
conditions, restrictions or penalties as are prescribed by law
and are necessary in a democratic society, in the interests of
national security, territorial integrity or public safety, for
the prevention of disorder or crime, for the protection of
health or morals, for the protection of the reputation or
rights of others, for preventing the disclosure of information
received in confidence, or for maintaining the authority and
impartiality of the judiciary. Thus, in the opinion of the
representative of the party concerned, according to this
convention and settled practice of the Constitutional Court,
the restrictions of rights and freedoms of the person are
considered to be grounded if: firstly, they are legitimate,
i.e. a possibility to restrict rights and freedoms of the
person is provided for by the laws which have been publicly
promulgated, while their norms are formulated sufficiently
distinctly; secondly, they are necessary in a democratic
society; thirdly, they have to be aimed at the defence of such
values as state security, territorial integrity or the
protection of society, interests of public order, health or
morals of people, etc.
E. Rumbutis pays attention to the fact that the
Constitution does not define the extent of restriction of the
freedom of information. It means that the choice and
establishment of the extent of restriction is undoubtedly
within the prerogative of the legislator. Naturally, the above
mentioned criteria of justice and necessity in a democratic
society should be taken into account and they must be aimed to
defend the said values, in order for such restrictions to meet
the concept and requirements of justice.
In the opinion of the representative of the party
concerned, the legislator, on the grounds of Paragraph 3 of
Article 25 of the Constitution, may limit the information
concerning alcoholic drinks. Such limitation is determined by
the necessity to at least minimally protect consumers, their
health, and juveniles. On the other hand, the prohibition of
alcohol advertisement provided for in Article 30 of the Law on
Alcohol Control does not imply an absolute prohibition to
present information to consumers concerning alcoholic drinks.
E. Rumbutis notes that the restriction of advertisement is only
one of the means for decrease of unlimited distribution and
consumption of substances hazardous to the health of the human
being. Other ways of limitations are provided for in laws. For
instance, Paragraph 1 of Article 3 of the Law on Alcohol
Control establishes that the principles of state alcohol
control policy shall be: to reduce accessibility of alcoholic
beverages through taxation; to limit, by state regulatory
means, private profit, obtained from the production of
alcoholic drinks, import and trade in alcoholic beverages; to
limit the encouragement of realisation and consumption of
alcoholic beverages; to increase public informativeness
concerning the questions of social and economic harm to health
and economy, resulting from alcohol use, etc. Beside that, in
order to ensure the control of the observance of the provisions
of the Law on Alcohol Control, a special system of institutions
has been created and responsibility for violations of the laws
has been established.
The representative of the party concerned also maintains
that the constitutional principle of a state under the rule of
law implies, among other things, clarity of legal norms. In his
opinion, the norms of Articles 1 and 30 of the Law on Alcohol
Control are clear and, if the said provisions are applied
inseparably from each other and if the established judicial
practice on this issue is referred to, there should arise no
uncertainty. Thus, in the opinion of E. Rumbutis, the issue of
constitutionality of the norms of Articles 1 and 30 of the Law
on Alcohol Control is the problem of practical application of
these norms, but not that of their essence, i.e. their content.
Therefore, in the opinion of the party concerned, there
exist no legal grounds to maintain that the provisions of
Paragraph 1 of Article 30 and Paragraph 4 of Article 1 of the
Law on Alcohol Control are not in conformity with the principle
of a state under the rule of law which is established in the
Preamble to the Constitution and with Paragraphs 2 and 3 of
Article 25 of the Constitution.
2. In his explanations concerning the compliance of the
norms of Paragraph 1 of Article 2, Item 2 of Paragraph 1 of
Article 3, Article 4 and Article 13 of the Law on Alcohol
Control and the disputed norms of Items 7 and 9 of the Rules
for Licensing the Production of Alcohol Products as approved by
Government Resolution No. 67 "On the Approval of the Rules for
Licensing the Production of Alcohol Products" of 22 January
2001 with Paragraphs 1 and 4 of Article 46 of the Constitution,
E. Rumbutis maintains that Paragraph 1 of Article 46 of the
Constitution consolidates the basic values upon which the
national economy is based: private ownership and individual
freedom of economic activity and initiative. However,
individual freedom of economic activity is not absolute. While
implementing it, interests of society are affected in various
aspects, therefore, according to the provisions of Paragraph 3
of Article 46 of the Constitution, the state regulates economic
activity so that it serves the general welfare of the Nation.
In the opinion of E. Rumbutis, the provision of Article 46 of
the Constitution means that it is not permitted to introduce a
monopoly, i.e. an entity of economy may not be granted by the
law any exclusive rights to act in some economic field,
however, it does not mean that its is prohibited under certain
circumstances to state in the law the existence of a monopoly
in a certain sphere of economic activity.
According to E. Rumbutis, the disputed norms of the Law on
Alcohol Control were adopted by taking account of the fact that
the production of alcohol used to be and is a natural monopoly
in Lithuania. He noted, alongside, that the prohibition to
conduct certain commercial-economic activity or licensing of
certain commercial-economic activity could not in itself be
assessed as an ungrounded restriction of individual freedom of
economic activity and initiative. The Seimas, pursuant to the
provisions of Paragraphs 3 and 5 of Article 46 of the
Constitution, has the right to establish prohibition to conduct
certain economic activity by taking account of objective
circumstances: the situation of the national economy, the
variety and changes in the economy and social life, economic,
social and other interests of the state. In certain spheres,
where the competition is not possible and undesirable due to
the specificity of the market, because it would violate the
interests of consumers, the state may regulate economic
activity so that it serves the general welfare of the Nation
and defend the interests of consumers. According to E.
Rumbutis, monopolisation must be prohibited by the legislator.
While prohibiting monopolisation of production and the market,
the legislator should take into consideration the situation of
the national economy, the variety and changes in the economy
and social life.
In the opinion of E. Rumbutis, while adopting the disputed
norms of the Law on Alcohol Control, it was stated that there
exists a monopoly in the sphere of alcohol production, and
special means for the protection of the interests of consumers
were established. In his opinion, the norms of the Law on
Alcohol Control are in compliance with the provisions of
Paragraphs 1 and 4 of Article 46 of the Constitution.
3. The representative of the Government, the party
concerned, who was V. Grušauskas, in his written explanations
maintains that Article 46 of the Constitution consolidates
several constitutional values: individual freedom of economic
activity and initiative, freedom of fair competition, general
welfare of the Nation and the interests of consumers. All these
values are of equal value and none of them may be granted
priority. Paragraph 3 of Article 46 of the Constitution
provides for the principle of state regulation of the economy
and indicates that general welfare of the Nation is the purpose
of such regulation. In the opinion of V. Grušauskas, for this
purpose the turnover of alcohol and its products, which may be
hazardous to the health of human beings, is limited by
attributing them to the goods the production and trade whereof
is licensed.
According to V. Grušauskas, under Article 46 of the
Constitution, the legislator should prohibit monopolisation.
Paragraph 4 of Article 46 of the Constitution creates
constitutional preconditions for the legislator to state by the
law the existence of a monopoly by taking account of the
situation of the economy, changes in the economy and social
life. This has to be said, first of all, about certain spheres
of state economy where competition is not desirable because it
may violate interests of consumers.
In the opinion of V. Grušauskas, there exists a natural
monopoly in the production of strong alcoholic beverages in
Lithuania, thus, it is logical that Paragraph 1 of Article 2,
Item 2 of Paragraph 1 of Article 3, Articles 4 and 13 of the
Law on Alcohol Control, as well as Items 7 and 9 of the Rules
for Licensing the Production of Alcohol Products, establish
monopolistic norms related solely to the production of strong
alcoholic beverages.
4. The representative of the Seimas, the party concerned,
G. Ivoška, specifies in his explanations that Article 46 of the
Constitution establishes the principles constituting the
constitutional basis of the Lithuanian economy, while Paragraph
4 of Article 44 of the Law on Alcohol Control consolidates the
legal norm regulating the relationships of responsibility for
violations of the Law on Alcohol Control. G. Ivoška pays
attention to the fact that the Constitutional Court, having
considered the compliance of the provisions of Item 1 of
Paragraph 3 of Article 50 of the Law on Tax Administration with
Paragraphs 1, 2 and 3 of Article 46 of the Constitution, held
that relationships of legal responsibility for violations of
laws are different if compared with the object of regulation of
Article 46 of the Constitution. Thus, in his opinion, Paragraph
4 of Article 44 of the Law on Alcohol Control which establishes
responsibility for violations of the Law on Alcohol Control is
not in conflict with Paragraphs 2 and 3 of Article 46 of the
Constitution.
The representative of the party concerned notes that
Paragraph 4 of Article 44 of the Law on Alcohol Control
consolidates sanctions defined in an absolute manner:
enterprises, establishments and organisations must pay a fine
of ten thousand litas for the first violation of the
requirements of Articles 29 and 30 of this law, and a fine of
twenty thousand litas for the same repeated violation committed
within five years from the imposition of the fine.
In the opinion of G. Ivoška, the legislator consolidated
such sanctions by taking account of the necessity to implement
the goal established in Article 2 of the Law on Alcohol Control
to decrease the general consumption of alcohol, alcohol abuse,
the harm it inflicts on health and economy, to establish legal
grounds of awarding the right for entities of economy to
produce, sell and import alcohol products established in this
law, as well as the necessity to implement the principles of
the state alcohol control policy established in Article 3 of
the Law. These principles must be observed both by natural and
legal persons who realise alcohol products according to the
procedure established by the laws, therefore the decision of
the legislator should not be considered as unlawful.
The representative of the party concerned maintains that
the constitutional principles of justice and a state under the
rule of law imply that sanctions which are established by the
state for violations of law must be proportionate (adequate)
for the violation of law, they must be in line with the sought
legitimate and generally important objectives, they should not
restrict the person evidently more than it is necessary to
achieve these objectives. According to Article 48 of the Law on
Alcohol Control, the entities of economy who disagree with the
decision of institutions specified in Paragraph 1 of Article 44
of this law concerning the application of economic sanctions
have an opportunity to apply to court within one month from the
day of delivering of the decision requesting for its annulment
or amendment and for compensation of damages.
Since the valid Law on Alcohol Control provides for an
opportunity to apply to court concerning changing of the
decision of the competent institution, in the opinion of the
representative of the party concerned, one is to assume that
the provision of Paragraph 4 of Article 44 of the Law on
Alcohol Control that enterprises, establishments and
organisations must pay a fine of ten thousand litas for the
first violation of the requirements of Articles 29 and 30 of
this law, and a fine of twenty thousand litas for the same
repeated violation committed within five years from the
imposition of the fine is not in conflict with the principles
of justice and a state under the rule of law which are
entrenched in the Constitution.
IV
In the course of the preparation of the case for the
Constitutional Court hearing written explanations were received
from G. Švedas, Vice-minister of Justice of the Republic of
Lithuania, E. Bartkevičius, Secretary of the Ministry of Health
of the Republic of Lithuania, A. Mačiulytė, Secretary of the
Ministry of Economy of the Republic of Lithuania, R.
Stanikūnas, Chairman of the Competition Board of the Republic
of Lithuania, V. Vadapalas, Director General of the European
Law Department under the Government of the Republic of
Lithuania, Assoc. Prof. Dr. V. Pakalniškis, Head of the
Department of Civil and Commercial Law of the Faculty of Law,
the Law University of Lithuania, A. Čepas, Director of the Law
Institute, U. Trumpa, President of the Lithuanian Free Market
Institute, P. Kovas, President of the Radio and Television
Association of Lithuania, Assoc. Prof. Dr. B. Pociūtė,
President of the Association of Psychologists of Lithuania.
V
At the Constitutional Court hearing, representatives of
the Seimas, the party concerned, who were E. Rumbutis and G.
Ivoška, virtually reiterated the arguments set forth in their
written explanations.
The representative of the Government, the party concerned,
who was A. Miliūnas, virtually reiterated the arguments set
forth in the written explanation of V. Grušauskas.
The Constitutional Court
holds that:
I
On the compliance of Paragraph 4 (wording of 2 July 1997)
of Article 1 and Paragraph 1 (wording of 2 July 1997) of
Article 30 of the Law on Alcohol Control with Paragraphs 2 and
3 of Article 25 of the Constitution and the constitutional
principle of a state under the rule of law.
1. The petitioner (the 11 January 2002 petition) requests
to investigate whether the provisions of Paragraph 4 of Article
1 and Paragraph 1 of Article 30 of the Law on Alcohol Control
are not in conflict with Paragraphs 2 and 3 of Article 25 of
the Constitution and the constitutional principle of a state
under the rule of law.
It is clear from the request of the petitioner that he has
doubts as to whether Paragraph 4 (wording of 1 July 1997) of
Article 1 and Paragraph 1 (wording of 2 July 1997) of Article
30 of the Law on Alcohol Control are not in conflict with the
Constitution.
2. Paragraph 4 (wording of 2 July 1997) of Article 1 of
the Law on Alcohol Control provides:
"Alcohol advertisement implies information published in
any form and through any means, by which it is sought to
influence consumers' choices, in connection with the
acquisition and consumption of alcohol products, and the
commercial, economic and financial activities of enterprises."
Article 1 has been amended and supplemented more than
once, but its Paragraph 4 remained unchanged.
3. Article 30 (wording of 2 July 1997) of the Law on
Alcohol Control used to establish:
"In the Republic of Lithuania advertisement of all forms
of alcohol shall be prohibited, which:
1) is intended for children and teenagers under the age of
18;
2) makes use of persons under the age of 18;
3) makes use of sports figures, physicians, politicians,
art and science personages and other prominent public figures,
their person, name, image, etc.;
4) links alcohol consumption with the improvement of
physical condition;
5) links alcohol consumption with driving;
6) links alcohol consumption with the improvement of
mental activity, solution of personal problems;
7) links alcohol consumption with stimulating, sedative
and other therapeutic characteristics;
8) links alcohol consumption with social success,
increased sexual activity;
9) favourably portrays immoderate consumption of alcoholic
beverages or presents negative portrayal of abstinence and
moderation;
10) presents higher volumetric concentration of ethyl
alcohol as an advantage of alcoholic beverages;
11) presents false and misleading information about
alcoholic beverages.
Advertisement of alcohol shall be prohibited:
1) in newspapers and their independent supplements, on the
first and last pages (covers) of magazines and books;
2) specialised newspapers, magazines, books, television
and radio programmes intended for children and teenagers;
3) over the national radio and television from 15:00 until
22:00, while on weekends and during school holidays, from 8:00
until 22:00 (except for the advertisement of beer and wine,
whose ethyl alcohol concentration does not exceed 15 per cent);
4) on broadcasted and rebroadcasted programmes of other
radio and television stations, cable radio and cable television
stations registered in the Republic of Lithuania except for the
broadcasts directly and continuously rebroadcasted from abroad
from 15:00 to 20:00 hrs, and on weekends and during school
holidays from 8 o'clock to 20:00 hrs (except for the
advertisement of beer and wine whose alcohol concentration does
not exceed 15 per cent);
5) in the places of concerts, circus, disco performances,
other public events, theatre performances, cinema and video
film demonstration;
6) at science and educational institutions;
7) at all health care institutions;
8) outside and inside public transport;
9) at petrol stations;
10) on postcards, envelopes, stamps sent by post.
It shall be prohibited to present alcoholic beverages as
prizes in lotteries, games and contests to persons under 18
years of age.
A warning text must appear on the outer alcohol
advertisements, concerning the harmful effect of alcohol on
health. The Ministry of Health shall establish the form,
content and place of this text in advertisements.
STACA shall control the restriction of alcohol
advertisement, while municipalities shall control outer
advertisement."
Article 30 of the Law has been amended and supplemented
more than once, as well as its Paragraph 1.
On 20 June 2002, the Seimas adopted the Republic of
Lithuania Law on the Amendment of Articles 1, 2, 3, 6, 8, 12,
13, 14, 16, 17, 19, 20, 21, 23, 25, 27, 28, 30, 41, 44, 45, 48,
and 52 of the Law on Alcohol Control and the Supplement Thereof
with Article 53, by Article 18 whereof amended Article 30 of
the Law on Alcohol Control and set if forth in a new wording:
Paragraph 1 of Article 30 was supplemented by a new Item 4: "4)
uses the names of state institutions, pictures of the buildings
of these institutions, etc."
On 15 May 2003, the Seimas adopted the Republic of
Lithuania Law on the Supplement of Articles 20, 21 and 25 and
the Amendment of Article 30 of the Law on Alcohol Control, by
Article 4 whereof recognised Item 4 of Paragraph 1 of Article
30 as no longer valid.
4. Article 25 of the Constitution provides:
"The human being shall have the right to have his own
convictions and freely express them.
The human being must not be hindered from seeking,
obtaining, and imparting information as well as ideas.
Freedom to express convictions, as well as to obtain and
impart information, may not be restricted other than by law, if
it is necessary to protect the health, honour and dignity,
private life, and morals of a human being, or to defend
constitutional order.
Freedom to express convictions and impart information
shall be incompatible with criminal actions-the instigation of
national, racial, religious, or social hatred, violence and
discrimination, slander and disinformation.
The citizen shall have the right to obtain any available
information which concerns him from State institutions in the
manner established by law."
5. The constitutional freedom to seek, obtain and impart
information and ideas unhindered is one of the fundamentals of
an open, just, and harmonious civil society and state under the
rule of law. This freedom is an important pre-condition for the
implementation of various rights and freedoms of the person
which are entrenched in the Constitution, since the person can
implement most of his constitutional rights and freedoms in an
all-sufficient manner only if he has the right to seek, obtain
and impart information unhindered. The Constitution guarantees
and safeguards the interest of the public to be informed
(Constitutional Court ruling of 23 October 2002).
The freedom to express convictions, to obtain and impart
information is one of the fundamental human freedoms. However,
this freedom is not absolute. The provisions of Paragraph 2 of
Article 25 of the Constitution that the human being must not be
hindered from seeking, obtaining, and imparting information as
well as ideas may not be construed as permitting to use the
freedom of information in the manner which would violate the
values mentioned in Paragraph 3 of Article 25 of the
Constitution: health, honour and dignity, private life, and
morals of a human being, or constitutional order.
The Constitutional Court has held in its rulings more than
once that, under the Constitution, human rights and freedoms,
thus, the right to obtain and impart information may be
restricted if the following conditions are observed: it is done
by the law; the restrictions are necessary in a democratic
society in order to protect the rights and freedoms of other
persons and values entrenched in the Constitution, as well as
constitutionally significant objectives; the restrictions do
not deny the nature and the essence of rights and freedoms; the
constitutional principle of proportionality is observed.
It has also to be noted that the European Convention on
Human Rights and Fundamental Freedoms also provides for
possibilities to restrict the right to obtain and impart
information. Article 10 of this convention provides:
"1. Everyone has the right to freedom of expression. This
right shall include freedom to hold opinions and to receive and
impart information and ideas without interference by public
authority and regardless of frontiers. This article shall not
prevent States from requiring the licensing of broadcasting,
television or cinema enterprises.
2. The exercise of these freedoms, since it carries with
it duties and responsibilities, may be subject to such
formalities, conditions, restrictions or penalties as are
prescribed by law and are necessary in a democratic society, in
the interests of national security, territorial integrity or
public safety, for the prevention of disorder or crime, for the
protection of health or morals, for the protection of the
reputation or rights of others, for preventing the disclosure
of information received in confidence, or for maintaining the
authority and impartiality of the judiciary."
7. The Constitutional Court has held in its rulings more
than once that the constitutional principle of a state under
the rule of law implies, along with the other requirements,
that human rights and freedoms should be ensured, that natural
justice must be respected, that all institutions implementing
state power as well as other state institutions must act on the
basis of law and in compliance with law, that the Constitution
has the supreme legal power and that laws, Government
resolutions and other legal acts must be in conformity with the
Constitution. The principle of a state under the rule of law
which is entrenched in the Constitution is inseparable from the
imperative of justice.
Legal certainty and legal clearness are one of the
fundamental elements of the principle of a state under the rule
of law which is entrenched in the Constitution: legal
regulation must be clear and harmonious, legal norms must be
formulated precisely, they may not contain ambiguities.
In its 6 December 2000 ruling, the Constitutional Court
held that the constitutional principles of justice and a state
under the rule of law also presuppose the fact that the
measures established by the state for violations of law must be
proportionate (adequate) for the violation of law, must be in
conformity with legitimate and commonly important objectives,
must not restrict the person more than is reasonably necessary
to achieve these objectives.
8. It has been mentioned that, according to Paragraph 4
(wording of 2 July 1997) of Article 1 of the Law on Alcohol
Control, alcohol advertisement implies information published in
any form and through any means, by which it is sought to
influence consumers' choices, in connection with the
acquisition and consumption of alcohol products, and the
commercial, economic and financial activities of enterprises.
It needs to be noted that, under the Law, advertisement is
not any information, but only that by which it is sought to
influence consumers' choices, i.e. to encourage them to
purchase or consume certain alcoholic products. It is the
encouragement to purchase or consume alcoholic products that
indicates the commercial goal of such information: it aims at
making positive influence on commercial, economic and financial
activity of enterprises. Therefore, neither works of science,
nor informational or other publications which present research
or statistical data on characteristics, consumption, production
and distribution of alcoholic products, nor works of art which
reflect the production or consumption of alcoholic products and
similar things are not by themselves alcohol advertising. While
deciding whether certain information is alcohol advertising,
all significant circumstances must be assessed in each
particular case.
It needs also to be noted that the definition of alcohol
advertising which is presented in Paragraph 4 (wording of 2
July 1997) of Article 1 of the Law by itself implies neither
prohibition of alcohol advertising, nor legal responsibility
for inobservance of such prohibitions. These relationships are
regulated in other articles of the Law and other legal acts.
9. In its 13 February 1997 ruling, the Constitutional
Court held that advertising is also information because it
delivers certain knowledge to its receiver concerning goods,
services or other advertised objects (subjects). Advertising is
information, but not every information is advertising. Thus,
advertising is considered a specific kind of information which
is usually called commercial information. Advertising is
inseparable from business, marketing, because it in fact serves
them and is an important means of competition.
The essential feature of advertising is the striving to
influence other persons while they choose or purchase certain
products, encourage them to behave in a certain way.
10. The said elements of the content of the notion of
advertising in fact coincide with the elements of the content
of the notion of advertising which is used in the common
language. Dabartinis lietuvių kalbos žodynas (A Dictionary of
Contemporary Lithuanian) defines advertising (Lith. reklama) as
follows: "1. imparting of news in order to proclaim, attract,
interest; 2. advertisement, poster, demonstration, announcement
on the radio, television and other means pursuing this goal"
(Dabartinis lietuvių kalbos žodynas. Vilnius: Mokslo ir
enciklopedijų leidybos inst., 2000, p. 652). According to
Tarptautinių žodžių žodynas (A Dictionary of International
Words), advertising is "imparting of news, data concerning
something in order to make something popular, known, to
increase the demand" (Tarptautinių žodžių žodynas. Vilnius:
Alma litera, 2001, p. 635.).
11. In international legal acts a similar concept of
advertising is consolidated.
Article 2 of the 5 May 1989 European Convention on
Transfrontier Television of the Council of Europe presents the
following description of the notion of advertisement: "<...>
any public announcement intended to promote the sale, purchase
or rental of a product or service, to advance a cause or idea
or to bring about some other effect desired by the advertiser,
for which transmission time has been given to the advertiser
for remuneration or similar consideration".
Paragraph 1 of Article 2 of Directive 84/450/EEC of the
Council of European Communities of 10 September 1984 regarding
the laws and other legal acts of the Member States concerning
the co-ordination of misleading or comparative advertising
(including the amendments made by Directive 97/55/EC of the
European Parliament and the Council of European Union) defines
that "'advertising' means the making of a representation in any
form in connection with a trade, business, craft or profession
in order to promote the supply of goods or services, including
immovable property, rights and obligations".
Directive 89/552/EEC of the Council of European
Communities of 3 October 1989 regarding the co-ordination of
the provisions laid down in the laws and other legal acts of
the Member States concerning the pursuit of television
broadcasting activities (including the amendments made by
Directive 97/36/EC of the European Parliament and the Council
of European Union of 30 June 1997) provides that "television
advertising means any form of announcement broadcast whether in
return for payment or for similar consideration or broadcast
for self-promotional purposes by a public or private
undertaking in connection with a trade, business, craft or
profession in order to promote the supply of goods or services,
including immovable property, rights and obligations, in return
for payment; 'surreptitious advertising' means the
representation in words or pictures of goods, services, the
name, the trade mark or the activities of a producer of goods
or a provider of services in programmes when such
representation is intended by the broadcaster to serve
advertising and might mislead the public as to its nature. Such
representation is considered to be intentional in particular if
it is done in return for payment or for similar consideration".
Item b of Article 2 of Directive 2003/33/EC of the
European Parliament and the Council of European Union of 26 May
2003 on the approximation of the laws and other legal acts of
the Member States relating to the advertising and sponsorship
of tobacco products establishes that "advertising means any
form of commercial communications with the aim or direct or
indirect effect of promoting a tobacco product".
12. Therefore, certain information by imparting of which
it is sought to influence the choice of persons and to
encourage the desired behaviour is usually considered
advertising both in the common Lithuanian language, and in
international legal acts. The definition of alcohol
advertisement which is presented in Paragraph 4 (wording of 2
July 1997) of Article 1 of the Law on Alcohol Control in fact
does not differ from the general definition of advertising.
13. It has been mentioned that, under the constitutional
principle of a state under the rule of law, norms of a law have
to be formulated clearly and precisely.
It needs to be noted that the definition of alcohol
advertisement which is presented in Paragraph 4 (wording of 2
July 1997) of Article 1 of the Law contains neither
contradictions, nor ambiguities; its formulations are
sufficiently clear, comprehensible, thus there exist no grounds
to maintain that Paragraph 4 (wording of 2 July 1997) of
Article 1 of the Law is in conflict with the constitutional
principle of a state under the rule of law.
14. Taking account of the arguments set forth one is to
conclude that Paragraph 4 (wording of 2 July 1997) of Article 1
of the Law on Alcohol Control is not in conflict with the
constitutional principle of a state under the rule of law.
15. It has been mentioned that Paragraph 4 (wording of 2
July 1997) of Article 1 of the Law presents a definition of
alcohol advertisement. This disputed paragraph of Article 1
contains no provisions regarding the prohibition or limitation
of alcohol advertising, or regarding legal responsibility for
inobservance of such prohibitions. Thus, the definition of
alcohol advertisement in itself cannot be in conflict with
Paragraph 2 or 3 of Article 25 of the Constitution.
16. Taking account of the arguments set forth one is to
conclude that Paragraph 4 (wording of 2 July 1997) of Article 1
of the Law on Alcohol Control is not in conflict with
Paragraphs 2 and 3 of Article 25 of the Constitution.
17. It has been mentioned that Article 30 of the Law on
Alcohol Control consolidates limitations of alcohol advertising
in Lithuania. Paragraph 1 (wording of 2 July 1997) of Article
30 of the Law used to establish that the alcohol advertisement
shall be prohibited, which: is intended for children and
teenagers under the age of 18; makes use of persons under the
age of 18; makes use of sports figures, physicians,
politicians, art and science personages and other prominent
public figures, their person, name, image, etc.; links alcohol
consumption with the improvement of physical condition; links
alcohol consumption with driving; links alcohol consumption
with the improvement of mental activity, solution of personal
problems; links alcohol consumption with stimulating, sedative
and other therapeutic characteristics; links alcohol
consumption with social success, increased sexual activity;
favourably portrays immoderate consumption of alcoholic
beverages or presents negative portrayal of abstinence and
moderation; presents higher volumetric concentration of ethyl
alcohol as an advantage of alcoholic beverages; presents false
and misleading information about alcoholic beverages.
18. It needs to be noted that limitations of alcohol
advertising are also provided for by international legal acts.
Paragraph 2 of Article 15 of the European Convention on
Transfrontier Television provides that advertising and
tele-shopping for alcoholic beverages of all varieties shall
comply with the following rules: they shall not be addressed
particularly to minors; no one associated with the consumption
of alcoholic beverage in advertising or tele-shopping should
seem to be a minor; they shall not link the consumption of
alcohol to physical performance or driving; they shall not
claim that alcohol has therapeutic qualities or that it is a
stimulant, a sedative or a means of resolving personal
problems; they shall not encourage immoderate consumption of
alcohol or present abstinence or moderation in a negative
light; they shall not place undue emphasis on the alcoholic
content of beverages.
Article 15 of said Directive 89/552/EEC of the Council of
European Communities of 3 October 1989 regarding the
co-ordination of the provisions laid down in the laws and other
legal acts of the Member States concerning the pursuit of
television broadcasting activities provides that television
advertising and teleshop for alcoholic beverages shall comply
with the following criteria: it may not be aimed specifically
at minors or, in particular, depict minors consuming these
beverages; it shall not link the consumption of alcohol to
enhanced physical performance or to driving; it shall not
create the impression that the consumption of alcohol
contributes towards social or sexual success; it shall not
claim that alcohol has therapeutic qualities or that it is a
stimulant, a sedative or a means of resolving personal
conflicts; it shall not encourage immoderate consumption of
alcohol or present abstinence or moderation in a negative
light; it shall not place emphasis on high alcoholic content
(strength) as being a positive quality of the beverages.
19. While deciding whether Paragraph 1 (wording of 2 July
1997) of Article 30 of the Law was not in conflict with the
Constitution, it needs to be noted that alcoholic beverages
belong to those groups of substances the consumption whereof
can cause damage to the health of human beings.
Paragraph 1 of Article 1 of the Law provides that ethyl
alcohol is the substance of narcotic effect which may cause
addiction and dependence of it.
The consumption of alcohol can have negative consequences
on physical, psychological and social state of persons, their
groups or even the society.
Consequently, alcohol and its products are specific
products, because their consumption can inflict damage on the
health of people.
20. Under Paragraph 1 of Article 53 of the Constitution,
the state shall look after the health of the people and shall
guarantee medical aid and services for the human being in the
event of sickness. Thus, looking after the health of the people
is to be interpreted as a state function (Constitutional Court
ruling of 14 January 2002). It follows from the provision of
Paragraph 1 of Article 53 of the Constitution that the state
shall look after the health of the people, that the protection
of the health of the people is the constitutionally significant
goal, the public interest (Constitutional Court ruling of 14
March 2002).
It has been mentioned that Paragraph 3 of Article 25 of
the Constitution provides that freedom to express convictions,
as well as to obtain and impart information, may not be
restricted other than by law, if it is necessary to protect
inter alia the health of a human being. Thus, the legislator,
while seeking to defend this constitutional value-the health of
the people-has the right to limit alcohol advertising.
It has been mentioned that, under the Constitution, human
rights and freedoms, as well as the right to obtain and impart
information, may be restricted if the following conditions are
observed: it is done according to the law; restrictions are
necessary in a democratic society in order to protect rights
and freedoms of other persons and values entrenched in the
Constitution, as well as constitutionally significant
objectives; restrictions do not deny the nature and the essence
of the rights and freedoms; constitutional principle of
proportionality is observed.
21. While deciding whether Paragraph 1 (wording of 2 July
1997) of Article 30 of the Law on Alcohol Control was not in
conflict with the Constitution, it has to be emphasised that
the said restrictions of alcohol advertising were established
by the law; that by the said restrictions it was pursued to
defend another constitutional value-to protect the health of a
human being; that the restrictions of advertising were adequate
to the objective sought, i.e. they did not violate the
requirements of proportionality; that the established
restrictions were of partial character, therefore, they should
not be evaluated as negation of the right to information.
22. Taking account of the arguments set forth, one is to
conclude that Paragraph 1 (wording of 2 July 1997) of Article
30 of the Law on Alcohol Control was not in conflict with
Paragraphs 2 and 3 of Article 25 of the Constitution and the
constitutional principle of a state under the rule of law.
II
On the compliance of Paragraph 4 (wording of 20 June 2002)
of Article 44 of the Law on Alcohol Control with Paragraphs 2
and 3 of Article 46 of the Constitution and the constitutional
principles of justice and a state under the rule of law.
1. The petitioner (petition of 29 May 2003) requests to
investigate whether the provision of Paragraph 4 of Article 44
of the Law on Alcohol Control that enterprises, establishments
and organisations, which violate the requirements of Articles
29 and 30 of this Law for the first time, shall pay a fine of
ten thousand litas, and for the same repeated violation,
committed within a period of five years from the imposition of
the penalty, a fine of twenty hundred thousand litas are not in
conflict with Paragraphs 2 and 3 of Article 46 of the
Constitution and the principles of justice and a state under
the rule of law which are entrenched in the Constitution.
It is clear from the request of the petitioner that it is
requested to investigate whether Paragraph 4 (wording of 20
June 2002) of Article 44 of the Law on Alcohol Control is not
in conflict with Paragraphs 2 and 3 of Article 46 of the
Constitution and the constitutional principles of justice and a
state under the rule of law.
2. Paragraph 4 (wording of 20 June 2002) of Article 44 of
the Law on Alcohol Control provides:
"Enterprises, establishments and organisations, which
violate the requirements of Articles 29 and 30 of this Law for
the first time, shall pay a fine of ten thousand litas, and for
the same repeated violation, committed within a period of five
years from the imposition of the penalty, a fine of twenty
hundred thousand litas."
3. Article 29 (wording of 16 March 2000) of the Law on
Alcohol Control used to provide:
"Enterprises which have the right to sell alcoholic
beverages shall be prohibited from applying the following means
of sales promotion:
1) to release a certain portion of goods without payment
or as a bonus;
2) to apply discounts of the fixed amount to the holders
of coupons published in the mass media;
3) to organise free distribution of samples of new
alcoholic beverages;
4) to supply their products as prizes or as added
incentive to a prize, lotteries, competitions or games, except
for the beer and sparkling wines the volumetric concentration
of the ethyl alcohol whereof does not exceed 15 per cent;
5) to organise competitions of retailers for the promotion
of alcoholic beverages;
6) to sell special advertisement editions, published in
the Republic of Lithuania or foreign countries, brought into
the Republic of Lithuania and designed to promote the sale of
alcohol products.
The Government of the Republic of Lithuania may also
establish other restrictions of alcoholic beverage sales
promotion to the enterprises which have licences to sell
alcoholic beverages issued in accordance with the established
procedure."
4. Article 30 (wording of 20 June 2002) of the Law used to
provide:
"In the Republic of Lithuania advertising of all forms of
alcohol shall be prohibited which:
1) is intended for children and teenagers under the age of
18;
2) makes use of persons under the age of 18;
3) makes use of sports figures, physicians, politicians,
art and science celebrities or other prominent public figures,
their person, name, image, etc.;
4) uses the names of State institutions, pictures of the
buildings of these institutions, etc;
5) relates alcohol consumption with the improvement of
physical condition;
6) relates alcohol consumption with driving;
7) relates alcohol consumption with the improvement of
mental activity, solving of personal problems;
8) relates alcohol consumption with stimulating, sedating
and other therapeutic characteristics;
9) relates alcohol consumption with social success,
increased sexual activity;
10) favourably portrays immoderate use of alcoholic
beverages or presents a negative portrayal of abstinence and
moderation;
11) presents a higher volumetric concentration of ethyl
alcohol as an advantage of alcoholic beverages;
12) presents false and misleading information about
alcoholic beverages.
Advertising of alcohol shall be prohibited:
1) in newspapers and their independent supplements, on the
first and last pages (covers) of magazines and books;
2) specialised newspapers, magazines, books, television
and radio programmes intended for children and teenagers;
3) broadcasted and rebroadcasted programmes of radio and
television stations, cable radio and cable television stations
registered in the Republic of Lithuania except for the
broadcasts directly and continuously rebroadcasted from abroad
from 15:00 to 22:30 hours, while on weekends and during school
holidays--from 08.00 to 22:30 hours (except for the
advertisements of alcoholic beverages the volumetric
concentration of ethyl alcohol whereof does not exceed 22 per
cent);
4) at the places of concerts, circus and disco
performances, places of other public events, theatre
performances, and cinema and video film shows;
5) at science and educational institutions;
6) at all health care institutions;
7) outside and inside public transport means;
8) at petrol stations and the areas thereof;
9) on postcards, envelopes and stamps sent by post.
It shall be prohibited to present alcoholic beverages as
lottery, game and contest prizes to persons under 18 years of
age.
Outdoor advertising of alcohol shall be prohibited in the
Republic of Lithuania except for the outdoor advertisement of
wine of natural fermentation and cider.
Information on alcoholic beverages which appears in
shopping areas, information bulletins which are intended only
for those specialising in alcohol trade and also the registered
names of the enterprises producing and trading in alcoholic
beverages (if the name of the producer of alcoholic beverages
is an integral part of the registered name of these
enterprises) and the goods marks, when these names and goods
marks appear on signs hanging on the buildings or branches and
the special transport of the enterprises shall not be regarded
as advertising.
In accordance with the procedure established by the
Government of the Republic of Lithuania or an institution
authorised by it, only the following information may be
presented in trade places of alcoholic beverages:
1) the name, address, goods mark, type of trade (wholesale
or retail) of the producer and trade enterprise;
2) names and groups of the alcoholic beverages;
3) the word 'we trade in' or 'we sell';
4) ethyl alcohol content volumetric concentration;
5) prices of the alcoholic beverages;
6) what the beverage is made of (fruit, grapes, grain
etc.);
7) special indications regarding the consumption;
8) information regarding the harm inflicted on the health
due to the consumption of alcohol.
Adherence to the requirements of this Article shall be
controlled by STACS (except for violations in public
information media), municipal institutions and STACS
(violations in outer advertising) and the National Council for
Consumers' Rights Protection (violations in public information
media)."
5. Paragraphs 2 and 3 of Article 46 of the Constitution
provide:
"The State shall support economic efforts and initiatives
that are useful to the society.
The State shall regulate economic activity so that it
serves the general welfare of the Nation."
6. It has been mentioned that the constitutional
principles of justice and a state under the rule of law also
imply that that sanctions which are established by the state
for violations of law must be proportionate (adequate) for the
violation of law, they must be in line with the sought
legitimate and generally important objectives, they should not
restrict the person evidently more than it is necessary to
achieve these objectives.
It has to be noted in the context of the case at issue
that the constitutional principle of justice demands to
differentiate the established penalties so that the nature of
the violation of law, circumstances extenuating and aggravating
the responsibility could be taken into account, that, while
taking account of that, a milder punishment could be imposed
than the minimum one provided for in the sanction, etc.
While establishing the sizes of sanctions for violations
of laws, the legislator is bound by the constitutional
principles of justice and a state under the rule of law, and
other constitutional requirements. The Constitutional Court has
emphasised that the constitutional principles of justice and a
state under the rule of law also mean that there must be a fair
balance (proportion) between the objective sought and means to
attain this objective, between violations of law and penalties
established for these violations. These principles do not
permit to establish such penalties for violations of law, as
well as such sizes of the fines, which would evidently be
disproportionate (inadequate) to the violation of law and the
objective sought (Constitutional Court rulings of 6 December
2000 and 2 October 2001). Thus, according to the constitutional
principles of justice and a state under the rule of law,
penalties established for violations of the laws must be of
such size which is necessary for the sought legitimate and
generally important objective--to ensure the observance of the
laws, the fulfilment of the established duties.
7. While deciding whether Paragraph 4 (wording of 20 June
2002) of Article 44 of the Law on Alcohol Control is not in
conflict with the constitutional principles of justice and a
state under the rule of law, account should be taken of the
fact that, under Paragraph 1 of Article 53 of the Constitution
"the State shall look after the health of the people", while
under Paragraph 3 of Article 25 of the Constitution, freedom to
express convictions, as well as to obtain and impart
information, may not be restricted other than by law, if it is
necessary to protect inter alia the health of a human being.
Being obligated to look after the health of the people, the
legislator is empowered to establish the particularities of the
production and realisation of alcohol and its products, to
limit their advertising, as well as to establish legal
responsibility for violations of such limitations and the
established procedure. However, this does not mean that the
legislator may establish penalties of any kind, as well as
fines of any size for violations of the laws which regulate the
procedure of production and realisation or advertising of
alcoholic beverages. While establishing the responsibility for
violations of the restriction of the promotion of the trade of
alcoholic beverages and the restriction of alcohol advertising,
the legislator is bound by the constitutional principles of
justice and a state under the rule of law and other
constitutional requirements.
It has been mentioned that the constitutional principles
of justice and a state under the rule of law also mean that
there must be a fair balance (proportion) between violations of
law and penalties established for these violations. Beside
that, the legislator, while establishing such a sanction for a
violation of the law, alongside must legislatively establish
such legal regulation according to which a court or another
institution, while imposing a penalty for the violation of the
law, must have an opportunity to take account of all
circumstances of the case and impose a milder punishment than
that provided for by the law.
While deciding whether Paragraph 4 (wording of 20 June
2002) of Article 44 of the Law on Alcohol Control which
consolidates strictly determined (absolute) sizes of fines, is
not in conflict with the constitutional principles of justice
and a state under the rule of law, the fact that without
establishing differentiated sizes of fines in the law, but
establishing strictly determined (absolute) size of the fine,
there remains no opportunity to individualise the size of the
imposed fine by taking into consideration the nature of a
violation and other circumstances.
Such legal regulation is inconsistent with the principles
of justice and a state under the rule of law which are
entrenched in the Constitution.
8. Taking account of the arguments set forth, one is to
conclude that Paragraph 4 (wording of 20 June 2002) of Article
44 of the Law on Alcohol Control to the extent that it does not
provide for the imposition of a fine by taking account of the
nature of a violation of the law and other circumstances is in
conflict with the constitutional principles of justice and a
state under the rule of law.
9. The Constitutional Court, having stated that Paragraph
4 (wording of 20 June 2002) of Article 44 of the Law on Alcohol
Control to the extent that it does not provide for the
imposition of a fine by taking account of the nature of a
violation of the law and other circumstances is in conflict
with the constitutional principles of justice and a state under
the rule of law, will not consider whether disputed Paragraph 4
(wording of 20 June 2002) of Article 44 of the Law is not in
conflict with Paragraphs 2 and 3 of Article 46 of the
Constitution.
III
On the compliance of Paragraph 1 (wording of 18 April
1995) of Article 2, Item 2 (wording of 18 April 1995) of
Paragraph 1 of Article 3, Paragraph 2 (wording of 10 December
1998) of Article 4 and Article 13 (wording of 18 July 2000) of
the Law on Alcohol Control and that of Items 7 and 9 (wording
of 22 January 2001) of the Rules for Licensing the Production
of Alcohol Products as approved by Government Resolution No. 67
"On the Approval of the Rules for Licensing the Production of
Alcohol Products" of 22 January 2001 with Paragraphs 1 and 4 of
Article 46 of the Constitution.
1. The petitioner (petition of 1 February 2002) requests
to investigate whether the norms of Paragraph 1 of Article 2,
Item 2 of Paragraph 1 of Article 3, Paragraph 2 of Article 4
and Article 13 of the Law on Alcohol Control and whether the
norms of Items 7 and 9 of the Rules for Licensing the
Production of Alcohol Products as approved by Government
Resolution No. 67 "On the Approval of the Rules for Licensing
the Production of Alcohol Products" of 22 January 2001 are not
in conflict with Paragraphs 1 and 4 of Article 46 of the
Constitution.
It is clear from the petition of the petitioner that he
has doubts as to whether the provision "the objective of the
Law on Alcohol Control shall be <...> to establish legal
grounds for the introduction of state monopoly on the
production of alcohol products <...> and the granting of the
right of state monopoly to produce <...> alcohol products
specified in this Law to economic entities" of Paragraph 1
(wording of 18 April 1995) of Article 2 of the Law, Item 2
(wording of 18 April 1995) of Paragraph 1 of Article 3,
Paragraph 2 (wording of 10 December 1998) of Article 4 and
Article 13 (wording of 18 July 2000) of the Law, as well as
Items 7 and 9 (wording of 22 January 2001) of the Rules are not
in conflict with Paragraphs 1 and 4 of Article 46 of the
Constitution.
The provisions of the Law and the Rules which are disputed
by the petitioner were amended and supplemented more than once.
At the present time all of them are no longer valid.
In this case the Constitutional Court, subsequent to the
petition of the petitioner, will only investigate the
compliance of the disputed provision "the objective of the Law
on Alcohol Control shall be <...> to establish legal grounds
for the introduction of state monopoly on the production of
alcohol products <...> and the granting of the right of state
monopoly to produce <...> alcohol products specified in this
Law to economic entities" of Paragraph 1 (wording of 18 April
1995) of Article 2 of the Law, Item 2 (wording of 18 April
1995) of Paragraph 1 of Article 3, Paragraph 2 (wording of 10
December 1998) of Article 4 and Article 13 (wording of 18 July
2000) of the Law, as well as the compliance of disputed Items 7
and 9 (wording of 22 January 2001) of the Rules with the
Constitution.
2. Article 46 of the Constitution provides:
"Lithuania's economy shall be based on the right of
private ownership and individual freedom of economic activity
and initiative.
The State shall support economic efforts and initiatives
that are useful to the society.
The State shall regulate economic activity so that it
serves the general welfare of the Nation.
The law shall prohibit monopolisation of production and
the market and shall protect freedom of fair competition.
The State shall defend the interests of the consumer."
3. In its ruling of 23 February 2002, the Constitutional
Court held that the legal norms set down in Article 46 of the
Constitution are interrelated, therefore when a legal norm
which is in a certain part of Article 46 of the Constitution is
violated, the legal norms laid down in the other parts of this
article are violated or pre-conditions are created for their
violation.
3.1. The notion of individual economic activity is a broad
one. It includes the freedom to freely choose business, freedom
to freely conclude contracts, freedom of fair competition,
equal rights of entities of economic activity etc. The freedom
of individual economic activity and initiative is the whole
complex of legal opportunities which creates preconditions for
an individual independently to adopt decisions necessary for
his economic activity (Constitutional Court rulings of 18 April
1996 and 14 March 2002).
The freedom of individual economic activity creates
opportunities to realise various aspirations of persons. Under
the Constitution, the national economy shall be based on the
freedom of individual economic activity and initiative,
therefore one may not establish any such legal regulation
creating inappropriate conditions for the implementation of the
freedom of economic activity (Constitutional Court ruling of 14
March 2002).
According to the Constitution, the freedom of individual
economic activity is not absolute. The state regulates economic
activity by co-ordinating the interests of the person and
society. While regulating economic activity by legal acts,
state institutions are bound by the Constitution.
In its ruling of 6 October 1999, the Constitutional Court
held that the provision of the Constitution "the State shall
regulate economic activity so that it serves the general
welfare of the Nation" consolidates the constitutional
principle which outlines the directions, ways and boundaries of
the regulation of economic activity. The general welfare of the
Nation may be judged taking account of the social development
of the Nation, opportunities for self-expression of a human
being. The content of the notion "the general welfare of the
Nation" is revealed in each concrete case by taking account of
economic, social and other significant factors.
3.2. Paragraph 5 of Article 46 of the Constitution
establishes the duty of the State to defend the interests of
consumers. This constitutional provision implies that various
means for the defence of consumers' interests must be
established by legal norms, that state institutions must
control how entities of economy observe the established
requirements, etc. (Constitutional Court ruling of 18 October
2000).
3.3. The Constitutional Court, while construing the
provision of Paragraph 4 of Article 46 of the Constitution that
"the law shall protect freedom of fair competition", noted that
it also means the obligation of the legislator to establish by
the laws such a legal regulation, according to which production
and the market would not be monopolised, that the freedom of
fair competition would be ensured, and that means for its
protection would be provided for (Constitutional Court ruling
of 17 March 2003).
The constitutional guarantee of the protection of fair
competition inter alia means the prohibition for state and
municipal institutions which regulate economic activity to
adopt decisions which distort or can distort fair competition.
3.4. The provision of Paragraph 4 of Article 46 of the
Constitution "the law shall prohibit monopolisation of
production and the market" means that a monopoly may not be
introduced, i.e. it is not permitted to grant exceptional
rights to an economy subject to conduct activity in some
economic sphere due to which this sphere would be monopolised.
However, the prohibition to monopolise the production does not
mean that it is prohibited, under certain circumstances, to
establish in the law the presence of monopoly in a certain
sphere of economic activity or to reflect factual monopoly
relationships by other ways and to regulate them respectively.
This statement creates legal preconditions to apply respective
requirements to the monopolist while defending the rights and
legitimate interests of other entities of economy and consumers
(Constitutional Court rulings of 6 October 1999, 18 October
2000, 9 April 2002, 17 March 2003).
According to the Constitution, introduction of a monopoly
is to be considered as ungrounded granting of privileges to a
certain entity of economy and, alongside, the discrimination of
other entities of economy, the restriction of their freedom of
economic activity.
3.5. The provision of Paragraph 4 of Article 46 of the
Constitution that the law shall prohibit monopolisation of
production and the market is to be assessed within the context
of other provisions of the Constitution, namely, in the context
of Article 29 of the Constitution, which consolidates the
principle of equality of persons.
Paragraph 1 of Article 29 of the Constitution consolidates
formal equality of all persons, and Paragraph 2 of this
article--the principle of non-discrimination and not granting
of privileges. In its rulings of 28 February 1996 and 17
November 2003, the Constitutional Court held that the
constitutional principle of equality of persons should be
applied not only to natural, but also to legal persons.
Granting privileges to a certain group of entities of
economy should be also related with the discrimination of other
entities of economy, the restriction of their freedom of
economic activity and initiative. This is incompatible with the
requirements of Articles 29 and 46 of the Constitution.
4. It has been mentioned that, according to the
Constitution, freedom of individual economic activity is not
absolute; that the state regulates economic activity by
co-ordinating the interests of the person and society; that
while regulating economic activity by legal acts, state
institutions are bound by the Constitution.
In its ruling of 9 July 1998, the Constitutional Court
noted that the production, import, trade or other realisation
of alcohol need special regime of state regulation. However,
economic activity must be regulated so that production and the
market would not be monopolised, that fair competition and the
freedom of economic activity would be protected.
According to the Constitution, rights and freedoms, as
well as the freedom of economic activity may be restricted if
the following conditions are observed: it is done according to
the law; the restrictions are necessary in a democratic society
in order to protect the rights and freedoms of other persons
and values entrenched in the Constitution, as well as
constitutionally significant objectives; the restrictions do
not deny the nature and the essence of the rights and freedoms;
the constitutional principle of proportionality is observed.
It needs to be noted that the state and its institutions,
having the discretion to establish a special legal regulation
of alcohol production and the market, may not do so by choosing
means so inadequate to the objectives sought, by which they
would introduce the monopoly of production and the market of
these products, would groundlessly restrict the freedom of
economic activity and fair competition.
It needs to be noted in the context of the case at issue
that other various other means but the introduction of a
monopoly may be established while seeking to attain socially
significant objectives.
5. Paragraph 1 (wording of 18 April 1995) of Article 2 of
the Law on Alcohol Control used to establish:
"The objective of the Law on Alcohol Control shall be to
decrease the general consumption of alcohol, alcohol abuse, its
damage to the health and economy, to establish legal grounds
for the introduction of state monopoly on the production and
trade of alcohol products, and the granting of the right of
state monopoly to produce, sell and import alcohol products
specified in this Law to economic entities".
It has been mentioned that the petitioner doubts whether
the provision "the objective of the Law on Alcohol Control
shall be <...> to establish legal grounds for the introduction
of state monopoly on the production of alcohol products <...>
and the granting of the right of state monopoly to produce
<...> alcohol products specified in this Law to economic
entities" of Paragraph 1 (wording of 18 April 1995) of Article
2 of the Law is not in conflict with Paragraphs 1 and 4 of
Article 46 of the Constitution.
6. Item 2 (wording of 18 April 1995) of Paragraph 1 of
Article 3 of the Law used to establish:
"The principles of the state politics concerning alcohol
control shall be: <...> (2) to limit by state regulation means
private profit obtained from the production, import of
alcoholic beverages and the trade of alcoholic beverages;".
7. Article 4 (wording of 10 December 1998) of the Law used
to establish:
"Alcohol products are attributed to special products, the
production, import, trade and consumption whereof, in
accordance with this and other laws and legal acts, shall be
applied a special state regulation regime.
The Government of the Republic of Lithuania, following
Paragraph 1 of Article 4 of the Law on Trade, under
extraordinary circumstances, may introduce the state monopoly
of the wholesale and retail trade of alcoholic beverages. Bases
and conditions for introduction of the monopoly, the procedure
of its implementation are established by the laws and
resolutions of the Government of the Republic of Lithuania.
The Government of the Republic of Lithuania, taking
account of monitoring results of alcohol consumption and the
economic harm inflicted by it upon health and the economy, may
establish, upon the proposal of the Ministry of Health
Protection, the quotas on the production and import of the
groups of alcoholic beverages."
It has been mentioned that the petitioner doubts as to the
compliance with the Constitution not of whole Article 4
(wording of 10 December 1998) of the Law, but only of its
Paragraph 2 which establishes the right of the Government to
introduce, under extraordinary circumstances, the state
monopoly of the wholesale and retail trade of alcoholic
beverages.
8. Article 13 (wording of 18 July 2000) used to establish:
"The right to produce non-methylated ethyl alcohol,
methylated ethyl alcohol and alcoholic beverages which exceed
22 per cent of ethyl alcohol by volume shall be granted only to
state enterprises and special purpose companies according to
the procedure established by this law and other legal acts.
This requirement shall not be applied to the enterprises
specified in Paragraphs 2 and 3 of this article.
According to the procedure established by this law and
other legal acts, the close stock company 'Lietuviškas midus'
shall be granted the right to produce alcoholic beverages which
are produced on the basis of products produced in the process
of fermentation of natural bee honey.
According to the procedure established by this law and
other legal acts, the company 'Sema' shall be granted the right
to produce non-methylated ethyl alcohol as a supplementary
product of basic yeast production, and methylated ethyl
alcohol.
According to the procedure established by this law and
other legal acts, enterprises of other types shall be granted
the right to produce other alcoholic products including
alcoholic beverages which do not exceed 22 per cent of ethyl
alcohol by volume.
The conditions and procedure of introduction of state
monopoly for the production of alcohol products shall be
established by the laws and resolutions of the Government of
the Republic of Lithuania."
9. The provisions disputed by the petitioner are
interrelated. It is clear from them that the state monopoly for
the production of alcohol products, as well as the right to
produce certain alcohol products to entities of economy
specified only by the law, was consolidated.
This legal regulation ignored the requirements of
Paragraph 1 of Article 46 of the Constitution which establishes
that "Lithuania's economy shall be based on the right of
private ownership and individual freedom of economic activity
and initiative", as well as those of Paragraph 4 of this
article, providing that "the law shall prohibit monopolisation
of production and the market and shall protect freedom of fair
competition". Alongside, it needs to be noted that the legal
regulation which had established the monopoly meant the
granting of privileges to certain entities of economy, as well
as discrimination of other entities of economy, the restriction
of their freedom of economic activity, and due to this the
requirements of Article 29 of the Constitution had been
disregarded.
10. Taking account of the arguments set forth one is to
conclude that the provision "the objective of the Law on
Alcohol Control shall be <...> to establish legal grounds for
the introduction of state monopoly on the production of alcohol
products <...> and the granting of the right of state monopoly
to produce <...> alcohol products specified in this Law to
economic entities" of Paragraph 1 (wording of 18 April 1995) of
Article 2 of the Law, Item 2 (wording of 18 April 1995) of
Paragraph 1 of Article 3, Paragraph 2 (wording of 10 December
1998) of Article 4 and Article 13 (wording of 18 July 2000) of
the Law were in conflict with Article 29 and Paragraphs 1 and 4
of Article 46 of the Constitution.
11. On 22 January 2001, the Government adopted Resolution
No. 67 "On the Approval of the Rules for Licensing the
Production of Alcohol Products" whereby it approved the Rules
for Licensing the Production of Alcohol Products. It has been
mentioned that the petitioner requests to investigate whether
Items 7 and 9 (wording of 22 January 2001) of the Rules are not
in conflict with Paragraphs 1 and 4 of Article 46 of the
Constitution.
11.1. Item 7 (wording of 22 January 2001) used to
establish:
"The licence established in Item 2.3 of these rules shall
be issued only to state enterprises and special purpose
companies."
Item 2.3 (wording of 22 January 2001) used to establish
the following types of licences for production of alcohol
products:
"alcohol products which do not exceed 22 per cent of ethyl
alcohol by volume, alcoholic beverages, non-methylated and
methylated ethyl alcohol (codes according to the Combined
Nomenclature of Goods--2103.90.90.3, 2106.90.20, 22.06, 22.07,
22.08, 3302.10.10, 3302.10.40.2, 3302.10.40.3, 3302.10.90.2,
3302.10.90.3, 3302.90.10)".
11.2. Item 9 (wording of 22 January 2001) of the Rules
used to establish:
"The licence of the type established in Item 2.5 of these
Rules shall be issued to the closed stock company 'Lietuviškas
midus' which is granted the right to produce alcoholic
beverages which are produced on the basis of products produced
in the process of fermentation of natural bee honey."
Item 2.5 (wording of 22 January 2001) of the Rules used to
establish the following types of licences for the production of
alcohol products:
"alcohol products, including alcoholic beverages which do
not exceed 22 per cent of ethyl alcohol by volume, alcoholic
beverages which are produced on the basis of products produced
in the process of fermentation of natural bee honey (codes
according to the Combined Nomenclature of Goods--2103.90.90.3,
2106.90.20, 22.04, 22.05, 22.06, 2207.20, 2208.70, 2208.90,
3302.10.10, 3302.10.40.2, 3302.10.40.3, 3302.10.90.2,
3302.10.90.3, 3302.90.10)."
12. Thus, the legal regulation established in Items 7 and
9 (wording of 22 January 2001) of the Rules, used to establish
exceptional rights to state enterprises, special purpose
companies and the closed stock company "Lietuviškas midus" to
produce certain alcohol products.
It has been mentioned that consolidation of privileges to
a certain group of entities of economy in the legal regulation,
discrimination of other entities of economy, and restriction of
their freedom of economic activity would violate the
requirements of Article 29 and Paragraphs 1 and 4 of Article 46
of the Constitution.
13. Taking account of the arguments set forth one is to
conclude that Items 7 and 9 (wording of 22 January 2001) of the
Rules for Licensing the Production of Alcohol Products as
approved by the Government Resolution No. 67 "On the Approval
of the Rules for Licensing the Production of Alcohol Products"
of 22 January 2001 were in conflict with Article 29 and
Paragraphs 1 and 4 of Article 46 of the Constitution.
Conforming to Articles 102 and 105 of the Constitution of
the Republic of Lithuania and Articles 1, 53, 54, 55 and 56 of
the Law on the Constitutional Court of the Republic of
Lithuania, the Constitutional Court of the Republic of
Lithuania has passed the following
ruling:
1. To recognise that Paragraph 4 (wording of 2 July 1997)
of Article 1 of the Republic of Lithuania Law on Alcohol
Control is not in conflict with the Constitution of the
Republic of Lithuania.
2. To recognise that Paragraph 1 (wording of 2 July 1997)
of Article 30 of the Republic of Lithuania Law on Alcohol
Control was not in conflict with the Constitution of the
Republic of Lithuania.
3. To recognise that Paragraph 4 (wording of 20 June 2002)
of Article 44 of the Republic of Lithuania Law on Alcohol
Control to the extent that it does not provide for the
imposition of a fine by taking account of the nature of a
violation of the law and other circumstances is in conflict
with the constitutional principles of justice and a state under
the rule of law.
4. To recognise that the provision "the objective of the
Republic of Lithuania Law on Alcohol Control shall be <...> to
establish legal grounds for the introduction of state monopoly
on the production of alcohol products <...> and the granting of
the right of state monopoly to produce <...> alcohol products
specified in this Law to economic entities" of Paragraph 1
(wording of 18 April 1995) of Article 2, Item 2 (wording of 18
April 1995) of Paragraph 1 of Article 3, Paragraph 2 (wording
of 10 December 1998) of Article 4 and Article 13 (wording of 18
July 2000) of the Republic of Lithuania Law on Alcohol Control
were in conflict with Article 29 and Paragraphs 1 and 4 of
Article 46 of the Constitution of the Republic of Lithuania.
5. To recognise that Items 7 and 9 (wording of 22 January
2001) of the Rules for Licensing the Production of Alcohol
Products as approved by Government of the Republic of Lithuania
Resolution No. 67 "On the Approval of the Rules for Licensing
the Production of Alcohol Products" of 22 January 2001 were in
conflict with Article 29 and Paragraphs 1 and 4 of Article 46
of the Constitution of the Republic of Lithuania.
This Constitutional Court ruling is final and not subject
to appeal.
The ruling is promulgated in the name of the Republic of
Lithuania.
Justices of the Constitutional Court:
Armanas Abramavičius
Egidijus Jarašiūnas
Egidijus Kūris
Kęstutis Lapinskas
Zenonas Namavičius
Augustinas Normantas
Jonas Prapiestis
Vytautas Sinkevičius
Stasys Stačiokas