Lietuviškai
Case No. 52/01
THE CONSTITUTIONAL COURT OF THE REPUBLIC OF
LITHUANIA
RULING
ON THE COMPLIANCE OF ITEM 4 OF GOVERNMENT OF THE
REPUBLIC OF LITHUANIA RESOLUTION NO. 1236 "ON THE
CONFIRMATION OF THE LIST OF TYPES OF
TELECOMMUNICATIONS ACTIVITIES SUBJECT TO
LICENSING, AS WELL AS THE TERMS AND RULES OF
LICENSING OF TELECOMMUNICATIONS ACTIVITIES" OF 17
OCTOBER 2000 WITH THE CONSTITUTION OF THE REPUBLIC
OF LITHUANIA, ITEM 5 (WORDING OF 9 JUNE 1998) OF
PARAGRAPH 1 OF ARTICLE 4, PARAGRAPHS 2 AND 4
(WORDING OF 9 JUNE 1998) OF ARTICLE 9, PARAGRAPH 1
(WORDING OF 9 JUNE 1998) OF ARTICLE 10 OF THE
REPUBLIC OF LITHUANIA LAW ON TELECOMMUNICATIONS,
PARAGRAPHS 1 AND 2 (WORDING OF 16 MARCH 2000) OF
ARTICLE 13 OF THE REPUBLIC OF LITHUANIA LAW ON
ENTERPRISES, AND PARAGRAPHS 1 AND 2 (WORDING OF 23
MARCH 1999) OF ARTICLE 4 OF THE REPUBLIC OF
LITHUANIA LAW ON COMPETITION
29 September 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-Daiva Pitrėnaitė,
in the presence of:
the representative of the Government of the Republic of
Lithuania, the party concerned, who was Ieva Laurinavičienė,
Deputy Director of the Law Department of the Ministry of
Transport, as well as Mindaugas Žilinskas, Director of the
Radio Communications Department of the Communications
Regulatory Authority under the Government 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 8
September 2004 in its public hearing heard Case No. 52/01 which
originated in a petition of the Vilnius Regional Administrative
Court, the petitioner, requesting to investigate as to whether
a provision of Item 4 of Government of the Republic of
Lithuania Resolution No. 1236 "On the Confirmation of the List
of Types of Telecommunications Activities Subject to Licensing,
as well as the Terms and Rules of Licensing of
Telecommunications Activities" of 17 October 2000 was not in
conflict with the principles of a just civil society and a
state under the rule of law, which are entrenched in the
Preamble to the Constitution of the Republic of Lithuania, as
well as with Paragraph 4 of Article 46 of the Constitution of
the Republic of Lithuania, Item 5 of Paragraph 1 of Article 4,
Paragraphs 2 and 4 of Article 9, Paragraph 1 of Article 10 of
the Republic of Lithuania Law on Telecommunications, Paragraphs
1 and 2 of Article 13 of the Republic of Lithuania Law on
Enterprises, and Paragraphs 1 and 2 of Article 4 of the
Republic of Lithuania Law on Competition.
The Constitutional Court
has established:
I
The Vilnius Regional Administrative Court, the petitioner,
was investigating an administrative case. By its ruling the
court suspended the investigation of the case and applied to
the Constitutional Court with a petition requesting to
investigate as to whether a provision of Item 4 of Government
Resolution No. 1236 "On the Confirmation of the List of Types
of Telecommunications Activities Subject to Licensing, as well
as the Terms and Rules of Licensing of Telecommunications
Activities" of 17 October 2000 (Official Gazette Valstybės
žinios, 2000, No. 88-2718; hereinafter also referred to as the
Government resolution of 17 October 2000) was not in conflict
with the principles of a just civil society and a state under
the rule of law, which are entrenched in the Preamble to
Constitution, as well as with Paragraph 4 of Article 46 of the
Constitution, Item 5 of Paragraph 1 of Article 4, Paragraphs 2
and 4 of Article 9, Paragraph 1 of Article 10 of the Law on
Telecommunications, Paragraphs 1 and 2 of Article 13 of the Law
on Enterprises, and Paragraphs 1 and 2 of Article 4 of the Law
on Competition.
II
The doubt of the petitioner whether the provision of Item
4 of the Government resolution of 17 October 2000 was not in
conflict with the principles of a just civil society and a
state under the rule of law, which are entrenched in the
Preamble to Constitution, as well as with Paragraph 4 of
Article 46 of the Constitution, Item 5 of Paragraph 1 of
Article 4, Paragraphs 2 and 4 of Article 9, Paragraph 1 of
Article 10 of the Law on Telecommunications, Paragraphs 1 and 2
of Article 13 of the Law on Enterprises, and Paragraphs 1 and 2
of Article 4 of the Law on Competition is based upon the
following arguments.
1. Article 1 of the Law on Telecommunications, which was
adopted on 9 June 1998 (and which went into effect on 1 August
1998), defined the areas of telecommunication activities
regulated by the said law. They were regulation of relations
between the telecommunications operators and the users of their
services, control of management and use of radio communication,
as well as ensuring of an effective use of radio frequencies
and establishment of conditions for promoting competition in
the telecommunications sector. The Law on Telecommunications
provides as to which activity in the telecommunications sector
is subject to licensing and which is not. Article 3 of this law
provides that telecommunications are regulated, on behalf of
the Republic of Lithuania, by the Government or an institution
authorised by it and the Communications Regulatory Authority.
Paragraph 30 of Article 2 of the Law on Telecommunications
defines telecommunications services as services wholly or
partially related to the transmission and switching of signals
and broadcasting of radio and television programmes via
telecommunications networks. Under Item 5 of Paragraph 1 of
Article 4, Paragraph 4 of Article 9 and Paragraph 1 of Article
10 of the Law on Telecommunications, the Government or an
institution authorised by it issues licences for provision of
telecommunications services. Transmission of radio and
television programmes is one of telecommunications services,
this is an activity subject to licensing, thus, the Government
or an institution authorised by it issues this licence only by
way of competitive tender.
In the opinion of the petitioner, the following most
important provisions of licensing of enterprises providing
telecommunications services are consolidated in the Law on
Telecommunications: provision of radio programmes' transmission
services is subject to licensing; the Government or an
institution authorised by it may issue the licence for
provision of radio programmes' transmission services; the
licence for provision of radio programmes' transmission
services may be issued only by way of competitive tender.
2. It is pointed out in the Government resolution of 17
October 2000 that the Government, while adopting it, was
following Articles 4, 8, 9 and 10 of the Law on
Telecommunications and Article 13 of the Law on Enterprises.
By the said resolution, the Government confirmed the Terms
and Rules of Licensing of Telecommunications Activities (Item
1.2) that must be followed by all economic entities of
Lithuania, which wish to develop/provide telecommunications
services.
Item 4 of the Government resolution of 17 October 2000
commissioned the Ministry of Transport of the Republic of
Lithuania on non-competition basis to issue, within 6 months of
the entry of this Government resolution into effect, licences
for provision of radio and television programmes' transmission
services to the enterprises that had filed applications with
the Ministry of Transport and held permits issued under
established procedure, to establish and operate radio and
television stations, had provided radio and television
programmes' transmission services prior to the entry of this
Government resolution into effect.
In the opinion of the petitioner, by means of the
provision of this item, the Law on Telecommunications was
violated, since the Government granted the right to the
Ministry of Transport to issue licences, on non-competition
basis, to individual enterprises to provide radio and
television programmes' transmission services upon the absence
of any legal grounds. Thereby the Government exceeded the right
established to it by the Law on Telecommunications to issue the
said licences.
3. The petitioner contends that the economic entities of
Lithuania, after the Law on Telecommunications had gone into
effect on 1 August 1998, could not develop telecommunications
activities, as there were not any approved terms and rules of
telecommunications activities, thus it was impermissible to
issue licences for such activity.
In the opinion of the petitioner, an enterprise that
wished to engage in commercial-economic activity subject to
licensing had, under Paragraphs 1 and 2 of Article 13 of the
Law on Enterprises, to receive a licence for such an activity,
while in case it did not have or did not receive it, the
enterprise was not permitted to engage in the
commercial-economic activity that was subject to licensing.
The terms and conditions pursuant to which economic
entities of Lithuania were permitted to develop
telecommunications services were established only by the
Government resolution of 17 October 2000.
The petitioner maintains that in the provision of Item 4
of the said resolution the enterprises are distinguished that
provided radio and television programmes' transmission services
prior to the publishing of this resolution. However, in the
opinion of the petitioner, such an activity was licensed
already from 1 August 1998, i.e. upon entry of the Law on
Telecommunications into effect, thus the enterprises that did
not have the licence did not have the right to provide radio
and television programmes' transmission services, and if they
provided such services without the licence, their activity was
in violation of Paragraphs 1 and 2 of Article 13 of the Law on
Enterprises. The Government resolution not only made engaging
in telecommunications activities without a licence a deed not
subject to prosecution and punishment, but also an exceptional,
advantageous position was created for the enterprises that had
been engaged in this activity, since they, within 6 months of
the entry of the Government resolution of 17 October 2000 into
effect, could be issued, on non-competition basis, licences for
the activity subject to licensing, which they had been engaged
in, although they had no right to do so. The petitioner notes
that, according to the provision of Item 4 of the Government
resolution of 17 October 2000, licences for the aforesaid
enterprises are not re-registered but issued anew.
4. According to the petitioner, the enterprises that
followed the requirements of Article 13 of the Law on
Enterprises and those of Paragraph 1 of Article 10 of the Law
on Telecommunications and which, having no licences, were not
engaged in the telecommunications activity, found themselves at
a disadvantage after the entry of the Government resolution of
17 October 2000 into effect, if compared to those which,
perhaps violating the above-mentioned laws, had been providing
radio and television programmes' transmission services, since
the unlawful activity of the enterprises that did not have the
licence but all the same were providing these services was
admitted by Item 4 of the Government resolution of 17 October
2000 and a privileged position was created for them-within 6
months of the entry of the Government resolution of 17 October
2000 into effect, they could be issued licences on
non-competition basis for providing radio and television
programmes' transmission services; meanwhile, all other
enterprises, if they wished to get such a licence, had to take
part in a competitive tender and win it.
The petitioner notes that the provision of Item 4 of the
Government resolution of 17 October 2000 provided for one more
exceptional term: prior to the publishing of the said
Government resolution, the enterprises that wished to get a
licence for providing telecommunications services had to file
applications with the Ministry of Transport requesting to issue
such licences. This term appeared only in the Government
resolution of 17 October 2000, and it had not been published
before. The petitioner believes that thereby an opportunity to
make use of Item 4 of the Government resolution of 17 October
was even more diminished to other enterprises; the said
reservation created pre-conditions for unfair competition; the
legal regulation created by a legal act of the Government
discriminates against individual economic entities, and
differences in competition conditions were created to the
economic entities competing in the market of provision of
telecommunications services.
Therefore, according to the petitioner, the provision of
Item 4 of the Government resolution of 17 October 2000 was not
in conformity with Paragraphs 1 and 2 of Article 4 of the Law
on Competition, under which institutions of state governance,
while carrying out the tasks assigned to them, which are
related to regulation of economic activity, must ensure freedom
of fair competition, they are prohibited from adoption of legal
acts or other decisions that grant privileges or discriminate
against individual economic entities, and due to which there
might appear differences in conditions of competition in
respect to economic entities competing in a corresponding
market.
5. The petitioner notes that Government resolutions may
not be in conflict with laws, they may not create additional
reservations, nor establish any additional terms, nor change
the terms that are established in laws. Otherwise, the
petitioner maintains, the principles of creation of a just
society and a state under the rule of law, which are entrenched
in the Preamble to the Constitution, are violated.
The law shall protect freedom of fair competition
(Paragraph 4 of Article 46 of the Constitution). By Item 4 of
the Government resolution of 17 October 2000 it was admitted
that the enterprises which were engaged in the activity subject
to licensing without having the licence "were behaving
correctly", and competitive privileges were established to
them.
III
In the course of the preparation of the case for the
Constitutional Court hearing, written explanations were
received from the representatives of the Government, the party
concerned, who were I. Laurinavičienė and M. Žilinskas, as well
as from V. Kvietkus, Head of the Post and Telecommunications
Division of the Ministry of Transport of the Republic of
Lithuania.
1. The representatives of the party concerned maintain
that the Government resolution of 17 October 2000, whereby the
list of types of telecommunications activities subject to
licensing and the Terms and Rules of Licensing of
Telecommunications Activities were confirmed, was adopted
pursuant to Articles 4, 8, 9, and 10 of the Law on
Telecommunications and Article 13 of the Law on Enterprises.
2. The representatives of the party concerned believe that
in Paragraph 4 of Article 46 of the Constitution only "the most
general" principle of fair competition is consolidated,
however, the content of the notion of fair competition is not
revealed; the content of the notion "fair competition" is
revealed by the norms of the Law on Competition. In the opinion
of I. Laurinavičienė, M. Žilinskas, and V. Kvietkus, the
Government resolution of 17 October 2000 was not applied to one
certain economic entity, it did not grant any monopolistic and
exclusive rights to an individual economic entity, nor did it
change the competitive environment in the telecommunications
market. Therefore, Item 4 of the aforementioned Government
resolution was not in conflict with Paragraph 4 of Article 46
of the Constitution.
3. Transmission of radio and television programmes as a
separate type of telecommunications activities was
distinguished for the first time only in the Law on
Telecommunications, which went into effect on 1 August 1998.
According to I. Laurinavičienė, M. Žilinskas and V. Kvietkus,
until then the enterprises, holding permits to exploit radio
stations or licences to establish and operate radio
transmitters in order to broadcast producers' programmes of
public information, which had been issued under procedure
established by legal acts, had been conducting analogous
telecommunications activities, by using the allocated radio
frequencies. The Government, while taking account of the fact
that the enterprises had been conducting the said activity in a
lawful manner, by Item 4 of the resolution of 17 October 2000
commissioned the Ministry of Transport to issue, within 6
months of the entry of this Government resolution into effect,
on non-competition basis, licences to provide radio and
television programmes' transmission services only to the
enterprises that had filed applications with the Ministry of
Transport and which, holding permits to establish and operate
radio and television stations, which were issued under
established procedure, had been providing radio and television
programmes' transmission services prior to the entry of this
Government resolution into effect. The representatives of the
party concerned paid their attention to the fact that an issue
was decided in a similar fashion concerning the enterprises
that had been conducting postal and telecommunications
activities and which had corresponding permits prior to the
entry into effect of Government Resolution No. 1400 "On the
Confirmation of the Rules for Licensing Postal and
Telecommunications Activities", as well as to the fact that
according to Article 2 of the Republic of Lithuania Law on the
Implementation of the Law on the Provision of Information to
the Public, the permits issued for the activity of the
television stations, cable television and radio stations which
were registered prior to the beginning of the activity of the
Radio and Television Commission are equalled to licences. In
the opinion of the representatives of the party concerned, in
case the Government had not established the legal regulation
that was established in Item 4 of the Government resolution of
17 October 2000, the enterprises providing respective
telecommunications services would have had to cease their
activities and take part in competitive tenders in order to
receive radio frequencies which they had been using until then;
this way the enterprises would have experienced negative
consequences. In the opinion of I. Laurinavičienė, M. Žilinskas
and V. Kvietkus, Item 4 of the Government resolution of 17
October 2000 was not in conflict with Item 5 of Paragraph 1 of
Article 4, Paragraphs 2 and 4 of Article 9 and Paragraph 1 of
Article 10 of the Law on Telecommunications.
4. Under Paragraphs 1 and 2 of Article 13 of the Law on
Enterprises, enterprises may engage in commercial-economic
activity which is subject to licensing only having a licence.
The representatives of the party concerned noted that Item 4 of
the Government resolution of 17 October 2000 did not change the
requirement established in laws to have licences for the
activity, therefore it was not in conflict with Paragraphs 1
and 2 of Article 13 of the Law on Enterprises.
5. According to the representatives of the party
concerned, Item 4 of the Government resolution of 17 October
2000 did not have any impact on the allocation of new radio
frequencies, as radio frequencies had already been distributed,
under procedure established in laws, to enterprises to conduct
telecommunications activity. Therefore, in the opinion of the
representatives of the party concerned, the said item was not
in conflict with Paragraph 1 of Article 4 of the Law on
Competition.
6. In the opinion of I. Laurinavičienė, M. Žilinskas and
V. Kvietkus, Item 4 of the Government resolution of 17 October
2000 had to be applied equally to all economic entities,
therefore it was not in conflict with Paragraph 2 of Article 4
of the Law on Competition.
IV
In the course of the preparation of the case for judicial
investigation, explanations were received from R. Stanikūnas,
Chairman of the Competition Council of the Republic of
Lithuania, T. Barakauskas, Director of the Radio Communications
Department of the Communications Regulatory Authority under the
Government of the Republic of Lithuania, J. Liniauskas,
Chairman of the Lithuanian Radio and Television Commission, and
R. Šimašius, Vice-President of the Lithuanian Free Market
Institute.
V
At the Constitutional Court hearing, the representatives
of the Government, the party concerned, who were I.
Laurinavičienė and M. Žilinskas, virtually reiterated the
arguments set forth in their written explanations.
The Constitutional Court
holds that:
I
1. The Vilnius Regional Administrative Court, the
petitioner, requests to investigate the compliance of a
provision of Item 4 of Government of the Republic of Lithuania
Resolution No. 1236 "On the Confirmation of the List of Types
of Telecommunications Activities Subject to Licensing, as well
as the Terms and Rules of Licensing of Telecommunications
Activities" of 17 October 2000 with the principles of a just
civil society and a state under the rule of law, which are
entrenched in the Preamble to the Constitution, as well as with
Paragraph 4 of Article 46 of the Constitution, Item 5 of
Paragraph 1 of Article 4, Paragraphs 2 and 4 of Article 9,
Paragraph 1 of Article 10 of the Law on Telecommunications,
Paragraphs 1 and 2 of Article 13 of the Law on Enterprises, and
Paragraphs 1 and 2 of Article 4 of the Law on Competition.
2. On 17 October 2000, the Government adopted Resolution
No. 1236 "On the Confirmation of the List of Types of
Telecommunications Activities Subject to Licensing, as well as
the Terms and Rules of Licensing of Telecommunications
Activities". This Government resolution went into effect on 21
October 2000.
2.1. Item 4 of Government Resolution No. 1236 "On the
Confirmation of the List of Types of Telecommunications
Activities Subject to Licensing, as well as the Terms and Rules
of Licensing of Telecommunications Activities" of 17 October
2000 used to provide: "To commission the Ministry of Transport,
within 6 months of the entry of this Resolution into effect, on
non-competition basis to issue licences for provision of radio
and television programmes' transmission services to the
enterprises that have filed applications with the Ministry of
Transport and held permits issued under established procedure,
to establish and operate radio and television stations, have
been providing radio and television programmes' transmission
services before the entry of this Resolution into effect."
The same resolution also indicated that the Government
adopted it pursuant to Articles 4, 8, 9, and 10 of the Law on
Telecommunications and Article 13 of the Law on Enterprises.
2.2. On 20 December 2002, the Government adopted
Resolution No. 2047 "On Recognising Some of Resolutions of the
Government of the Republic of Lithuania as No Longer Valid", by
Item 5 whereof it recognised that Government Resolution No.
1236 "On the Confirmation of the List of Types of
Telecommunications Activities Subject to Licensing, as well as
the Terms and Rules of Licensing of Telecommunications
Activities" of 17 October 2000 shall be no longer valid as of 1
January 2003.
Thus, the disputed Government resolution of 17 October
2000 was valid from 21 October 2000 till 31 December 2002.
2.3. Under Paragraph 4 of Article 69 of the Law on the
Constitutional Court, the annulment of the disputed legal act
shall be grounds to adopt a decision to dismiss the initiated
legal proceedings. In its rulings the Constitutional Court has
held many a time that the formula "shall be grounds <...> to
dismiss the initiated legal proceedings" of Paragraph 4 of
Article 69 of the Law on the Constitutional Court is to be
construed as establishing the right to the Constitutional
Court, in cases when not courts but the other entities pointed
out in Article 106 of the Constitution applied to the
Constitutional Court, while taking account of the circumstances
of the case, to dismiss the initiated legal proceedings, but
not as establishing that in every case when the disputed legal
act was annulled the instituted legal proceedings must be
dismissed; under the Constitution, in the cases when a court
investigating a case applies to the Constitutional Court after
it has had doubts concerning the compliance of a law applicable
in the case with the Constitution, also concerning the
compliance of an act adopted by the Seimas, or an act of the
President of the Republic or the Government with the
Constitution or laws, the Constitutional Court has a duty to
investigate the request of the court regardless of the fact
whether or not the disputed law or other legal is valid.
3. The petitioner requests to investigate the compliance
of the provision of Item 4 of the Government resolution of 17
October 2000 with the principles of a just civil society and
state under the rule of law, which are entrenched in the
Preamble to the Constitution, as well as with Paragraph 4 of
Article 46 of the Constitution.
3.1. Paragraph 4 of Article 46 of the Constitution
provides: "The law shall prohibit monopolisation of production
and the market and shall protect freedom of fair competition."
Although the petitioner requests to investigate the
compliance of the provision of Item 4 of the Government
resolution of 17 October 2000 with Paragraph 4 of Article 46 of
the Constitution, it is clear from the petition of the
petitioner that he doubts concerning the compliance of Item 4
of the aforesaid resolution with not entire Paragraph 4 of
Article 46 of the Constitution, but only with its provision
that the law shall protect freedom of fair competition.
3.2. The Preamble to the Constitution proclaims the
striving for an open, just and harmonious civil society and
state under the rule of law. In the Constitution the principle
of a state under the rule of law is entrenched.
In its ruling of 11 July 2002, the Constitutional Court
held that the values and strivings enshrined in the
Constitution are expressed in the constitutional norms and
principles. In its rulings, while construing the content of the
constitutional principle of a state under the rule of law, the
Constitutional Court held more than once that the
constitutional principle of a state under the rule of law is
manifested in various provisions of the Constitution, that this
constitutional principle is to be construed inseparably from
the striving for an open, just and harmonious civil society and
state under the rule of law proclaimed in the Preamble to the
Constitution. Thus, the principle of a state under the rule of
law expresses various aspects of the striving for an open, just
and harmonious civil society and state under the rule of law
proclaimed in the Preamble to the Constitution.
4. The petitioner requests to investigate the compliance
of the provision of Item 4 of the Government resolution of 17
October 2000 with Item 5 of Paragraph 1 of Article 4,
Paragraphs 2 and 4 of Article 9 and Paragraph 1 of Article 10
of the Law on Telecommunications.
4.1. On 9 June 1998, the Seimas adopted the Law on
Telecommunications. This law went into effect on 1 August 1998.
4.2. Article 4 of the Law on Telecommunications (wording
of 9 June 1998) used to provide:
"1. The Government or an institution authorised by it
shall perform the following functions: <...>
5) in cases set out by this Law, issue licences to provide
telecommunications services, with the exception of services
provided under the licences issued to broadcasters by the Radio
and Television Commission <...>."
Paragraph 2 of Article 9 of the Law on Telecommunications
(wording of 9 June 1998) used to provide: "Only such
telecommunications activities for which limited resources-radio
frequencies and telephone numbers-are available shall be
licensable."
Paragraph 4 of Article 9 of the Law on Telecommunications
(wording of 9 June 1998) used to provide: "A licence to engage
in telecommunications activity shall be awarded by competitive
tender in a manner prescribed by the Government. In certain
cases, the terms of the tender may stipulate that licences may
contain a requirement providing that under certain conditions
any other telecommunications operator is allowed to jointly use
conduits, cable ducts, collectors, towers, poles and other
facilities."
Paragraph 1 of Article 10 of the Law on Telecommunications
(wording of 9 June 1998) used to provide: "A licence for
provision of transmission services shall be issued by the
Government or an institution authorised by it."
4.3. Until the adoption of the Government resolution of 17
October 2000 and its entry into effect, the legal regulation
established in the Law on Telecommunications (wording of 9 June
1998) underwent amendments, however, the articles (paragraphs
and items thereof) indicated by the petitioner were not amended
or supplemented. At the time of the adoption of the Government
resolution of 17 October 2000 and its entry into effect these
the articles (paragraphs and items thereof) were set forth in
the wording of 9 June 1998.
4.4. On 5 July 2002, the Seimas adopted the Republic of
Lithuania Law on the Amendment of the Law on
Telecommunications, by Article 1 whereof it amended the Law on
Telecommunications and set it forth in a new wording. It was
established in Article 2 of the Law on the Amendment of the Law
on Telecommunications that this law, except Articles 3 and 4,
shall come into force as of 1 January 2003.
Thus, the new wording Law on Telecommunications (wording
of 5 July 2002) went into effect as of 1 January 2003, while
the last day of the validity of the Law on Telecommunications
(wording of 9 June 1998 with subsequent amendments) was 31
December 2002.
4.5. As mentioned, the Government resolution of 17 October
2000 was valid from 21 October 2000 till 31 December 2002. At
that time Item 5 of Paragraph 1 of Article 4, Paragraphs 2 and
4 of Article 9, Paragraph 1 of Article 10 of the Law on
Telecommunications (wording of 9 June 1998 with subsequent
amendments) were set forth in the wording of 9 June 1998.
5. The petitioner requests to investigate the compliance
of the provision of Item 4 of the Government resolution of 17
October 2000 with Paragraphs 1 and 2 of Article 13 of the Law
on Enterprises.
5.1. On 8 May 1990, the Supreme Council of the Republic of
Lithuania adopted the Law on Enterprises. Until the adoption of
the Government resolution of 17 October 2000 and its entry into
effect, the Law on Enterprises (wording of 8 May 1990) had been
amended and supplemented more than once. At the time of the
adoption of the Government resolution of 17 October 2000 and
its entry into effect, Paragraphs 1 and 2 of Article 13 of the
Law on Enterprises were set forth in the wording of 16 March
2000:
"An enterprise may engage in commercial-economic activity
subject to licensing only if it has a licence.
A licence is a document granting the right to the
enterprise to engage in commercial-economic activity specified
in the licence."
5.2. As mentioned, the Government resolution of 17 October
2000 was valid from 21 October 2000 till 31 December 2002. At
that time the legal regulation established in the Law on
Enterprises (wording of 8 May 1990 with subsequent amendments
and supplements) underwent amendments, however, Paragraphs 1
and 2 of Article 13 (wording of 16 March 2000) of the same law
were not amended or supplemented, and they were set forth in
the wording of 16 March 2000.
6. The petitioner requests to investigate the compliance
of the provision of Item 4 of the Government resolution of 17
October 2000 with Paragraphs 1 and 2 of Article 4 of the Law on
Competition.
6.1. On 15 September 1992, the Supreme Council adopted the
Republic of Lithuania Law on Competition. Later provisions of
this law underwent amendments.
6.2. On 23 March 1999, the Seimas adopted a new Law on
Competition. On the same day, the Seimas adopted the Republic
of Lithuania Law on the Entry into Effect of the Law on
Competition. The new Law on Competition and the Law on the
Entry into Effect of the Law on Competition went into effect on
2 April 1999. It was established in Article 1 of the Law on the
Entry into Effect of Law on Competition that upon entry into
effect of the 23 March 1999 Law on Competition, the 15
September 1992 Law on Competition (with subsequent amendments)
shall become no longer valid, save Article 4 thereof, which
becomes no longer valid as of 1 January 2000, and Item 2 of
Paragraph 1 of Article 7 thereof, which becomes no longer valid
as from the entry into effect of the Republic of Lithuania law
regulating the use of misleading advertisement.
6.3. Paragraphs 1 and 2 (wording of 23 March 1999) of
Article 4 of the Law on Competition provide:
"1. When carrying out the assigned tasks related to the
regulation of economic activity within the Republic of
Lithuania, institutions of state governance and of
self-government shall ensure freedom of fair competition.
2. State governance and municipal institutions shall be
prohibited from adopting legal acts or other decisions which
grant privileges to or discriminate against any individual
economic entities or their groups and which bring about or may
bring about differences in the conditions of competition for
competitors in the relevant market, except where the difference
in the conditions of competition cannot be avoided when the
requirements of the laws of the Republic of Lithuania are
complied with."
6.4. Until the adoption of the Government resolution of 17
October 2000 and its entry into effect, the legal regulation
established in the Law on Competition (wording of 23 March
1999) underwent amendments, however, Paragraphs 1 and 2 of
Article 4 of the said law were not amended or supplemented. At
the time of the adoption of the Government resolution of 17
October 2000 and its entry into effect they were (and are now)
set forth in the wording of 23 March 1999.
6.5. As mentioned, the Government resolution of 17 October
2000 was valid from 21 October 2000 till 31 December 2002. At
that time Article 4 of the Law on Competition (wording of 23
March 1999 with subsequent amendments) was set forth in the
wording of 23 March 1999).
7. Subsequent to the petition of the petitioner, the
Constitutional Court will investigate the compliance of Item 4
of Government Resolution No. 1236 "On the Confirmation of the
List of Types of Telecommunications Activities Subject to
Licensing, as well as the Terms and Rules of Licensing of
Telecommunications Activities" of 17 October 2000 with the
provision of Paragraph 4 of Article 46 of the Constitution that
the law shall protect freedom of fair competition, with the
constitutional principle of a state under the rule of law, Item
5 (wording of 9 June 1998) of Paragraph 1 of Article 4,
Paragraphs 2 and 4 (wording of 9 June 1998) of Article 9,
Paragraph 1 (wording of 9 June 1998) of Article 10 of the Law
on Telecommunications, Paragraphs 1 and 2 (wording of 16 March
2000) of Article 13 of the Law on Enterprises, and Paragraphs 1
and 2 (wording of 23 March 1999) of Article 4 of the Law on
Competition.
II
1. In Lithuania, telecommunications law virtually started
to be developed upon restoration of the independent State of
Lithuania and beginning of creation of the national legal
system. During all this time the development of
telecommunications relations was very speedy, they underwent
qualitative changes, the telecommunications business and legal
acts formulated new notions, which had not been used before,
therefore telecommunications law, a new branch of law, was very
dynamic, too.
The legal regulation of the relations connected with
issuance of permits (licences) to enterprises in order to
establish and operate radio and television stations was changed
many a time as well.
2. In the context of the case at issue it needs to be
noted that the legal acts that were valid prior to the adoption
of the Government resolution of 17 October 2000 used to provide
that an enterprise that wished to provide radio and televisions
programmes' transmission services had to receive a
corresponding permit or licence. It needs to be emphasised that
in the legal acts the notions "permit" and "licence" often used
to be employed as synonyms, or as replacing each other, since
the notion "permit", in the broad sense, includes the notion
"licence" as well, while the notion "licence" also means a
permit (as a rule, a permit to engage in a certain economic
activity, where this activity is bound by certain conditions
and is supervised by state or municipal institutions; in case
these conditions are not followed, the permit to engage in a
respective economic activity may be cancelled upon the grounds
and under procedure established by legal acts).
3. In the context of the case at issue it also needs to be
noted that the permits provided for in legal acts to
enterprises to establish and operate radio and television
stations for some time also meant the right of enterprises,
holders of these permits, to transmit (retransmit) radiocasts
and telecasts, and their right to provide transmission
services.
4. Paragraph 1 of Article 10 of the Law on
Telecommunications (wording of 9 June 1998) used to provide
that a licence for provision of transmission services shall be
issued by the Government or an institution authorised by it.
However, the broadcaster using the transmission services
provided by a third party had to have a licence issued by the
Radio and Television Commission, while its conditions and terms
had to be co-ordinated with the telecommunications operator
providing transmission services (Paragraph 2 of Article 10),
while the broadcaster who had been awarded a licence by the
Radio and Television Commission, granting him the right to
establish and operate his own telecommunications networks, had
to obtain permits from the Communications Regulatory Authority
to establish and operate telecommunications networks (the terms
and conditions of these permits had to comply with the basic
conditions for the activities of telecommunications networks
submitted by the Communications Regulatory Authority for the
competitive tenders organised by the Radio and Television
Commission) (Paragraph 3 of Article 10).
The Law on Telecommunications (wording of 9 June 1998) did
not contain any norms establishing that the permits previously
issued to enterprises to establish and operate radio and
television stations under laws and other legal acts, which, at
the time of issuance of these permits, also meant the right of
these enterprises to provide transmission services, the
duration of validity of which, upon the entry of the Law on
Telecommunications (wording of 9 June 1998), had not expired,
were to be abolished or replaced. Thus, the legal regulation
established in the Law on Telecommunications (wording of 9 June
1998) meant that at the time of the entry of this law into
effect the permits previously issued to enterprises to
establish and operate radio and television stations under laws
and other legal acts, which, at the time of issuance of these
permits, also meant the right of these enterprises to provide
transmission services, remained valid and were valid until the
time of their validity expired.
In the context of the case at issue it also needs to be
noted that that the provisions of the Law on Telecommunications
(wording of 9 June 1998) concerning issuance of licences to
provide transmission services were prospective. The provisions
of the said law regulated the way (the grounds and procedure)
of issuance new licences to provide transmission services to
the enterprises which, upon the entry into effect of the Law on
Telecommunications (wording of 9 June 1998), wished to provide
these transmission services and which, until the entry into
effect of the Law on Telecommunications (wording of 9 June
1998), did not have permits to establish and operate radio and
television stations, which, at the time of issuance of these
permits, also meant the right of holders of these permits to
provide transmission services. Thus, the provisions of the Law
on Telecommunications (wording of 9 June 1998) concerning the
grounds and procedure of issuance of licences to provide
transmission services were not designed to the enterprises
which, at the time of the entry of the said law into effect,
had valid permits issued under established procedure to
establish and operate radio and television stations, which, at
the time of issuance of these permits, also meant the right to
provide transmission services.
Thus, by the legal regulation established in the Law on
Telecommunications (wording of 9 June 1998) the rights acquired
by enterprises to provide transmission services during the time
specified in the permits were not denied, i.e. these rights
persisted.
5. It has been mentioned that under Paragraph 1 (wording
of 9 June 1998) of Article 10 of the Law on Telecommunications
a licence for provision of transmission services is issued by
the Government or an institution authorised by it. Under
Article 4 (wording of 9 June 1998) of the Law on
Telecommunications, the Government or an institution authorised
by it, "in cases set out by this Law, [shall] issue licences
for establishing and operating telecommunications networks,
with the exception of the networks established and operated
under the licences issued to broadcasters by the Radio and
Television Commission" (Item 4), also "in cases set out by this
Law, [shall] issue licences to provide telecommunications
services, with the exception of services provided under the
licences issued to broadcasters by the Radio and Television
Commission" (Item 5). According to the Terms and Rules of
Licensing of Telecommunications Activities confirmed by
Government Resolution No. 1236 "On the Confirmation of the List
of Types of Telecommunications Activities Subject to Licensing,
as well as the Terms and Rules of Licensing of
Telecommunications Activities" of 17 October 2000, the
aforementioned institution authorised by the Government is the
Ministry of Transport.
6. Item 4 of Government Resolution No. 1236 "On the
Confirmation of the List of Types of Telecommunications
Activities Subject to Licensing, as well as the Terms and Rules
of Licensing of Telecommunications Activities" of 17 October
2000 commissioned the Ministry of Transport of the Republic of
Lithuania on non-competition basis to issue, within 6 months of
the entry of this Government resolution into effect, licences
for provision of radio and television programmes' transmission
services to the enterprises that had filed applications with
the Ministry of Transport and held permits issued under
established procedure, to establish and operate radio and
television stations, and had provided radio and television
programmes' transmission services prior to the entry of the
said resolution into effect.
Thus, the following provisions were consolidated in Item 4
of the Government resolution of 17 October 2000:
1) the enterprises that under this item were being issued,
on non-competition basis, licences for provision of radio and
television programmes' transmission services had to be holding
permits to establish and operate radio and television stations.
It needs to be noted that licences for provision of radio and
television programmes' transmission services could be issued on
non-competition basis only to the enterprises which had permits
to establish and operate radio and television stations, which
had previously been issued under laws and other legal acts and
which at the time of the adoption of the Government resolution
of 17 October 2000 were still valid, and which, at the time of
their issuance meant the right of enterprises, holders of these
permits, to provide transmission services;
2) the enterprises that were issued, under this item and
on non-competition basis, licences for provision of radio and
television programmes' transmission services, had to provide
radio and television programmes' transmission services prior to
the entry of this resolution into effect. It needs to be noted
that the formula "provided radio and television programmes'
transmission services prior to the entry of this resolution
into effect" does not mean that the enterprise could provide
the said services at some point in the past, but that the said
services had been provided right until the entry into effect of
the Government resolution of 17 October 2000. This formula also
means that the said services could be provided only if one held
permits to establish and operate radio and television stations,
which had previously been issued under laws and other legal
acts and which, at the time of the adoption of the Government
resolution of 17 October 2000 were still valid, and which, at
the time of their issuance meant the right of enterprises,
holders of these permits, to provide transmission services;
3) the enterprises to which under this item and on
non-competition basis licences are issued for provision of
radio and television programmes' transmission services, and
which, until the entry into effect of 17 October 2000
Government resolution held permits issued under established
procedure to establish and operate radio and television
stations and which had been providing radio and television
programmes' transmission services filed applications with the
Ministry of Transport to issue licences, on non-competition
basis, for provision of radio and television programmes'
transmission services after the said Government resolution had
gone into effect;
4) the Ministry of Transport of the Republic of Lithuania
on non-competition basis had to issue, within 6 months of the
entry of the Government resolution of 17 October 2000 into
effect, licences for provision of radio and television
programmes' transmission services to the enterprises that met
all the indicated conditions. It needs to be noted that a duty
but not the right to issue the said licences was established
for the Ministry of Transport. It also needs to be noted that
in case the Ministry of Transport did not carry out this duty
and, within 6 months of the entry of the Government resolution
of 17 October 2000 into effect, did not issue licences for
provision of radio and television programmes' transmission
services to an enterprise, which meets all the indicated
conditions, the right of such an enterprise to provide radio
and television programmes' transmission services subsequent to
the permit to establish and operate a radio or television
station, which was received under established procedure, would
not disappear-this enterprise would further enjoy the right to
provide transmission services during the time specified in the
previously received permit.
7. Thus, Item 4 of the Government resolution of 17 October
2000 established not the grounds and procedure for issuance of
licences to provide transmission services to enterprises, but a
duty of the Ministry of Transport to the enterprises which held
permits issued under established procedure prior to the entry
into effect of the Government resolution of 17 October 2000 to
establish and operate radio and television stations and which
had been providing radio and television programmes'
transmission services, and which prior to the entry into effect
of the aforesaid Government resolution filed respective
applications requesting to issue licences to provide radio and
television programmes' transmission services.
It needs to be noted that, under the legal regulation
established in Item 4 of the Government resolution of 17
October 2000, all enterprises which held permits issued under
laws and other legal acts, which were still valid at the time
of the entry into effect of the Government resolution of 17
October 2000, to establish and operate radio and television
stations, which had been providing radio and television
programmes' transmission services, and which, prior to the
entry into effect of this resolution had already filed
applications with the Ministry of Transport to issue, on
non-competition basis, licences to provide radio and television
programmes' transmission services, were treated equally.
III
On the compliance of Item 4 of Government Resolution No.
1236 "On the Confirmation of the List of Types of
Telecommunications Activities Subject to Licensing, as well as
the Terms and Rules of Licensing of Telecommunications
Activities" of 17 October 2000 with Paragraphs 1 and 2 (wording
of 16 March 2000) of Article 13 of the Law on Enterprises.
1. It was established in Paragraphs 1 and 2 (wording of 16
March 2000) of Article 13 of the Law on Enterprises:
"An enterprise may engage in commercial-economic activity
subject to licensing only if it has a licence.
A licence is a document granting the right to the
enterprise to engage in commercial-economic activity specified
in the licence."
2. As mentioned, the legal acts that were valid prior to
the adoption of the Government resolution of 17 October 2000
used to provide that an enterprise that wished to provide radio
and televisions programmes' transmission services had to
receive a corresponding permit or licence, and that the notions
"permit" and "licence" often used to be employed as synonyms,
or as replacing each other, and that the notion "permit", in
the broad sense, includes the notion "licence" as well, while
the notion "licence" also means a permit.
It was also mentioned that Item 4 of the Government
resolution of 17 October 2000 established not the grounds and
procedure for issuance of licences to provide transmission
services to enterprises, but a duty of the Ministry of
Transport to the enterprises which held permits issued under
established procedure prior to the entry into effect of the
Government resolution of 17 October 2000 to establish and
operate radio and television stations and which had been
providing radio and television programmes' transmission
services, and which prior to the entry into effect of the
aforesaid Government resolution filed respective applications
requesting to issue licences to provide radio and television
programmes' transmission services.
3. By the legal regulation established in Item 4 of the
Government resolution of 17 October 2000 no conditions were
created for any such legal situation where certain enterprises
could be engaged in an economic activity subject to licensing,
provision of transmission services, without having a licence
issued under procedure established by legal acts. By the said
legal regulation the concept of a licence established by the
law was not denied, either.
4. Taking account of the arguments set forth, one is to
conclude that Item 4 of Government Resolution No. 1236 "On the
Confirmation of the List of Types of Telecommunications
Activities Subject to Licensing, as well as the Terms and Rules
of Licensing of Telecommunications Activities" of 17 October
2000 was not in conflict with Paragraphs 1 and 2 (wording of 16
March 2000) of Article 13 of the Law on Enterprises.
IV
On the compliance of Item 4 of Government Resolution No.
1236 "On the Confirmation of the List of Types of
Telecommunications Activities Subject to Licensing, as well as
the Terms and Rules of Licensing of Telecommunications
Activities" of 17 October 2000 with Item 5 (wording of 9 June
1998) of Paragraph 1 of Article 4, Paragraphs 2 and 4 (wording
of 9 June 1998) of Article 9, Paragraph 1 (wording of 9 June
1998) of Article 10 of the Law on Telecommunications.
1. Article 4 of the Law on Telecommunications (wording of
9 June 1998) inter alia used to provide:
"1. The Government or an institution authorised by it
shall perform the following functions: <...>
5) in cases set out by this Law, issue licences to provide
telecommunications services, with the exception of services
provided under the licences issued to broadcasters by the Radio
and Television Commission <...>."
Paragraph 2 of Article 9 of the Law on Telecommunications
(wording of 9 June 1998) used to provide: "Only such
telecommunications activities for which limited resources-radio
frequencies and telephone numbers-are available shall be
licensable."
Paragraph 4 of Article 9 of the Law on Telecommunications
(wording of 9 June 1998) used to provide: "A licence to engage
in telecommunications activity shall be awarded by competitive
tender in a manner prescribed by the Government. In certain
cases, the terms of the tender may stipulate that licences may
contain a requirement providing that under certain conditions,
any other telecommunications operator is allowed to jointly use
conduits, cable ducts, collectors, towers, poles and other
facilities."
Paragraph 1 (wording of 9 June 1998) of Article 10 of the
Law on Telecommunications used to provide: "A licence for
provision of transmission services shall be issued by the
Government or an institution authorised by it."
2. As mentioned, the provisions of the Law on
Telecommunications (wording of 9 June 1998) concerning the
grounds and procedure of issuance licences to provide
transmission services were not designed to the enterprises
which, at the time of the entry of the said law into effect,
had valid permits issued under established procedure to
establish and operate radio and television stations, which, at
the time of issuance of these permits, meant the right to
provide transmission services.
It was also mentioned that Item 4 of the Government
resolution of 17 October 2000 established not the grounds and
procedure for issuance of licences to provide transmission
services to enterprises, but a duty of the Ministry of
Transport to the enterprises which held permits issued under
established procedure prior to the entry into effect of the
Government resolution of 17 October 2000 to establish and
operate radio and television stations and which had been
providing radio and television programmes' transmission
services, and which prior to the entry into effect of the
aforesaid Government resolution filed respective applications
requesting to issue licences to provide radio and television
programmes' transmission services.
Thus, Item 4 of the disputed Government resolution was
designated only for the enterprises which held permits issued
under laws and other legal acts and still valid at the time of
the entry into effect of the Government resolution of 17
October 2000 to establish and operate radio and television
stations, which were providing radio and television programmes'
transmission services, and which, prior to the entry into
effect of this resolution had already filed applications with
the Ministry of Transport to issue, on non-competition basis,
licences to provide radio and television programmes'
transmission services.
Thus, Item 4 of the Government resolution of 17 October
2000 did not contain any provisions competing with the
provisions of Item 5 (wording of 9 June 1998) of Paragraph 1 of
Article 4, Paragraphs 2 and 4 (wording of 9 June 1998) of
Article 9, Paragraph 1 of Article 10 (wording of 9 June 1998)
of the Law on Telecommunications.
3. Taking account of the arguments set forth, one is to
conclude that Item 4 of Government Resolution No. 1236 "On the
Confirmation of the List of Types of Telecommunications
Activities Subject to Licensing, as well as the Terms and Rules
of Licensing of Telecommunications Activities" of 17 October
2000 was not in conflict with Item 5 (wording of 9 June 1998)
of Paragraph 1 of Article 4, Paragraphs 2 and 4 (wording of 9
June 1998) of Article 9, and Paragraph 1 (wording of 9 June
1998) of Article 10 of the Law on Telecommunications.
V
On the compliance of Item 4 of Government Resolution No.
1236 "On the Confirmation of the List of Types of
Telecommunications Activities Subject to Licensing, as well as
the Terms and Rules of Licensing of Telecommunications
Activities" of 17 October 2000 with Paragraphs 1 and 2 (wording
of 23 March 1999) of Article 4 of the Law on Competition.
1. Paragraphs 1 and 2 (wording of 23 March 1999) of
Article 4 of the Law on Competition provide:
"1. When carrying out the assigned tasks related to the
regulation of economic activity within the Republic of
Lithuania, institutions of state governance and of
self-government shall ensure freedom of fair competition.
2. State governance and municipal institutions shall be
prohibited from adopting legal acts or other decisions which
grant privileges to or discriminate against any individual
economic entities or their groups and which bring about or may
bring about differences in the conditions of competition for
competitors in the relevant market, except where the difference
in the conditions of competition cannot be avoided when the
requirements of the laws of the Republic of Lithuania are
complied with."
3. It has been mentioned in this Ruling of the
Constitutional Court that Item 4 of the Government resolution
of 17 October 2000 established not the grounds and procedure
for issuance of licences to provide transmission services to
enterprises, but a duty of the Ministry of Transport to the
enterprises which held permits issued under established
procedure prior to the entry into effect of the Government
resolution of 17 October 2000 to establish and operate radio
and television stations and which had been providing radio and
television programmes' transmission services, and which prior
to the entry into effect of the aforesaid Government resolution
filed respective applications requesting to issue licences to
provide radio and television programmes' transmission services.
It has also been held in this Ruling of the Constitutional
Court that, under the legal regulation established in Item 4 of
the Government resolution of 17 October 2000, all enterprises
which held permits issued under laws and other legal acts,
which were still valid at the time of the entry into effect of
the Government resolution of 17 October 2000, to establish and
operate radio and television stations, which had been providing
radio and television programmes' transmission services, and
which, prior to the entry into effect of this resolution had
already filed applications with the Ministry of Transport to
issue, on non-competition basis, licences to provide radio and
television programmes' transmission services, were treated
equally.
Thus, by the legal regulation established in Item 4 of the
said Government resolution no privileges were established to
enterprises or their groups due to which there appeared or
might have appeared different competition conditions.
4. Taking account of the arguments set forth, one is to
conclude that Item 4 of Government Resolution No. 1236 "On the
Confirmation of the List of Types of Telecommunications
Activities Subject to Licensing, as well as the Terms and Rules
of Licensing of Telecommunications Activities" of 17 October
2000 was not in conflict with Paragraphs 1 and 2 (wording of 23
March 1999) of Article 4 of the Law on Competition.
VI
On the compliance of Item 4 of Government Resolution No.
1236 "On the Confirmation of the List of Types of
Telecommunications Activities Subject to Licensing, as well as
the Terms and Rules of Licensing of Telecommunications
Activities" of 17 October 2000 with Paragraph 4 of Article 46
of the Constitution and the constitutional principle of a state
under the rule of law.
1. As mentioned, the petitioner doubts as to the
compliance of Item 4 of Government Resolution No. 1236 "On the
Confirmation of the List of Types of Telecommunications
Activities Subject to Licensing, as well as the Terms and Rules
of Licensing of Telecommunications Activities" of 17 October
2000 with the provision of Paragraph 4 of Article 46 of the
Constitution that the law shall protect freedom of fair
competition and with the constitutional principle of a state
under the rule of law.
2. It has been held in this Ruling of the Constitutional
Court that by the legal regulation established in Item 4 of
Government Resolution No. 1236 "On the Confirmation of the List
of Types of Telecommunications Activities Subject to Licensing,
as well as the Terms and Rules of Licensing of
Telecommunications Activities" of 17 October 2000 no privileges
were established to enterprises or their groups due to which
there appeared or might have appeared different competition
conditions, and that Item 4 of the said Government resolution
was not in conflict with Paragraphs 1 and 2 (wording of 23
March 1999) of Article 4 of the Law on Competition.
3. Having held this, one is alongside to hold that Item 4
of Government Resolution No. 1236 "On the Confirmation of the
List of Types of Telecommunications Activities Subject to
Licensing, as well as the Terms and Rules of Licensing of
Telecommunications Activities" of 17 October 2000 was not in
conflict with the provision of Paragraph 4 of Article 46 of the
Constitution that the law shall protect freedom of fair
competition and the constitutional principle of a state under
the rule of law.
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:
To recognise that Item 4 of Government of the Republic of
Lithuania Resolution No. 1236 "On the Confirmation of the List
of Types of Telecommunications Activities Subject to Licensing,
as well as the Terms and Rules of Licensing of
Telecommunications Activities" of 17 October 2000 was not in
conflict with the Constitution of the Republic of Lithuania,
Item 5 (wording of 9 June 1998) of Paragraph 1 of Article 4,
Paragraphs 2 and 4 (wording of 9 June 1998) of Article 9,
Paragraph 1 of Article 10 (wording of 9 June 1998) of the
Republic of Lithuania Law on Telecommunications, Paragraphs 1
and 2 (wording of 16 March 2000) of Article 13 of the Republic
of Lithuania Law on Enterprises, and Paragraphs 1 and 2
(wording of 23 March 1999) of Article 4 of the Republic of
Lithuania Law on Competition.
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