Case No. 30/03
THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA
RULING
ON THE COMPLIANCE OF PARAGRAPH 5 OF ARTICLE 5
(WORDING OF 29 JUNE 2000), PARAGRAPHS 1, 3, AND 4
(WORDING OF 29 JUNE 2000) OF ARTICLE 6, PARAGRAPH 1
OF ARTICLE 10 (WORDING OF 29 JUNE 2000), PARAGRAPHS
1 AND 2 OF ARTICLE 15 (WORDING OF 29 JUNE 2000) OF
THE REPUBLIC OF LITHUANIA LAW ON THE LITHUANIAN
NATIONAL RADIO AND TELEVISION AND PARAGRAPH 4 OF
ARTICLE 31 (WORDING OF 29 AUGUST 2000) OF THE
REPUBLIC OF LITHUANIA LAW ON PROVISION OF
INFORMATION TO THE PUBLIC WITH THE CONSTITUTION OF
THE REPUBLIC OF LITHUANIA
21 December 2006
Vilnius
The Constitutional Court of the Republic of Lithuania,
composed of the Justices of the Constitutional Court Armanas
Abramavičius, Toma Birmontienė, Egidijus Kūris, Kęstutis
Lapinskas, Zenonas Namavičius, Ramutė Ruškytė, Vytautas
Sinkevičius, Stasys Stačiokas, and Romualdas Kęstutis Urbaitis,
with the secretary of the hearingDaiva Pitrėnaitė,
in the presence of the representative of a group of Members
of the Seimas of the Republic of Lithuania, the petitioner, who
was Vygantas Barkauskas, an advocate,
in the presence of the representatives of the Seimas of the
Republic of Lithuania, the party concerned, who were Rasa
Bielskė, senior advisor of the Legal Department of the Office of
the Seimas, and Audrius Skaistys, an advisor of the Seimas
Committee on Education, Science and Culture,
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, in its public
hearing on 5 and 6 December 2006 heard case No. 30/03 subsequent
to the petition of a group of Members of the Seimas of the
Republic of Lithuania, the petitioner, consisting of Gintautas
Babravičius, Jonas Jučas, Audrius Klišonis, Artūras Melianas,
Kęstutis Glaveckas, Algis Kašėta, Saulius Lapėnas, Dalia
Teišerskytė, Raimondas Šukys, Algimantas Matulevičius, Gintaras
Šileikis, Virginijus Martišauskas, Romanas Algimantas Sedlickas,
Rimvydas Vaštakas, Jonas Čekuolis, Egidijus Skarbalius, Eimundas
Savickas, Pranas Vilkas, Eugenijus Maldeikis, Jonas Lionginas,
Vladas Žalnerauskas, Dailys Alfonsas Barakauskas, Jonas
Čiulevičius, Vytautas Kvietkauskas, Alvydas Sadeckas, Nijolė
Steiblienė, Gintaras Steponavičius, Algirdas Gricius, Juozas
Matulevičius, Valerij Tretjakov, Sergej Dmitrijev, Henrikas
Žukauskas, Julius Veselka, Rolandas Pavilionis, Algirdas
Kunčinas, Algimantas Salamakinas, Algirdas Butkevičius, Petras
Gražulis, Eligijus Masiulis, Klemensas Rimšelis, Arminas Lydeka,
Aleksander Poplavski, Kazimira Danutė Prunskienė, Janė
Narvilienė, Kazys J. Bobelis, Stanislovas Buškevičius, Egidijus
Klumbys, Antanas Baura, Gintaras Didžiokas, Ramūnas Karbauskis,
Vytautas Šustauskas, Gediminas Vagnorius, Rimas Valčiukas,
Vasilij Fiodorov, Eduardas Šablinskas, and Algimantas Valentinas
Indriūnas, requesting to investigate, whether
- Paragraphs 1, 3, and 4 of Article 6, Paragraph 1 of
Article 15 of the Republic of Lithuania Law on the Lithuanian
National Radio and Television to the extent that it provided that
the Lithuanian National Radio and Television is funded from the
receipts obtained for advertising and from commercial activity,
Paragraph 2 of Article 15 of the same law to the extent that it
provides that the National Radio and Television of Lithuania
shall implement commercial activity independently, are not in
conflict with Paragraphs 2, 3, and 4 of Article 46 of the
Constitution of the Republic of Lithuania;
- Paragraph 5 of Article 5 of the Republic of Lithuania Law
on the Lithuanian National Radio and Television to the extent
that it provides that the Lithuanian National Radio and
Television shall have a priority right to newly co-ordinated
electronic communication channels (radio frequencies), Item 3 of
Paragraph 1 of Article 10 of the same law, Paragraph 4 of Article
31 of the Republic of Lithuania Law on Provision of Information
to the Public to the extent that it provides that channels (radio
frequencies) for broadcasting programmes of the Lithuanian
National Radio and Television are assigned without a tender, are
not in conflict with Paragraph 1 of Article 29 and Paragraphs 2,
3, and 4 of Article 46 of the Constitution of the Republic of
Lithuania.
The Constitutional Court
has established:
I
A group of Members of the Seimas, the petitioner, has
applied to the Constitutional Court with a petition requesting to
investigate whether
- Paragraphs 1, 3, and 4 of Article 6, Paragraph 1 of
Article 15 of the Law on the Lithuanian National Radio and
Television to the extent that it provides that the Lithuanian
National Radio and Television (hereinafter also referred to as
the LRT) is funded from the receipts obtained for advertising and
from commercial activity, Paragraph 2 of Article 15 of the same
law to the extent that it provides that the National Radio and
Television of Lithuania shall implement commercial activity
independently, are not in conflict with Paragraphs 2, 3, and 4 of
Article 46 of the Constitution;
- Paragraph 5 of Article 5 of the Law on the Lithuanian
National Radio and Television to the extent that it provides that
the Lithuanian National Radio and Television shall have a
priority right to newly co-ordinated electronic communication
channels (radio frequencies), Item 3 of Paragraph 1 of Article 10
of the same law, Paragraph 4 of Article 31 of the Law on
Provision of Information to the Public to the extent that it
provides that channels (radio frequencies) for broadcasting
programmes of the Lithuanian National Radio and Television are
assigned without a tender, are not in conflict with Paragraph 1
of Article 29 and Paragraphs 2, 3, and 4 of Article 46 of the
Constitution.
II
1. The petition of the petitioner requesting to investigate
whether Paragraphs 1, 3, and 4 of Article 6, Paragraph 1 of
Article 15 of the Law on the Lithuanian National Radio and
Television to the extent that it provides that the LRT is funded
from the receipts obtained for advertising and from commercial
activity, Paragraph 2 of Article 15 of the same law to the extent
that it provided that the National Radio and Television of
Lithuania shall implement commercial activity independently, are
not in conflict with Paragraphs 2, 3, and 4 of Article 46 of the
Constitution.
1.1. Paragraph 1 (wording of 29 June 2000) of Article 6 of
the Law on the Lithuanian National Radio and Television
established: "Advertising in LRT programmes shall be broadcast in
accordance with the procedure established by laws"; Paragraph 3
(wording of 29 June 2000) of the same article established:
"Duration of advertising both on LRT television and on LRT radio
programmes must not exceed 15 percent of the day's broadcast
time"; Paragraph 4 (wording of 29 June 2000) of the same article
established: "With the increase of LRT receipts obtained from the
State levy, advertising time shall be gradually and
proportionately reduced to 10 percent of a day's broadcast time,
per decision of the Council." Paragraph 1 of Article 15 (wording
of 29 June 2000) of the same law established: "The LRT shall be
funded from the allocation of the State Budget, income obtained
from the State levy for the services provided to the public by
the LRT, for transmission of radio and television broadcasts,
advertisement, publishing and from sponsorship and receipts
obtained from commercial and economic activity. With the increase
of LRT receipts from the State levy, LRT financing from the State
Budget shall be reduced accordingly." Paragraph 2 of the same
article established: "The LRT shall implement commercial,
economic and publishing activity independently."
1.2. In the opinion of the petitioner, commercial
advertising distorts the activity of the LRT as a public
broadcaster and hinders the implementation of the purposes and
tasks of the LRT. The support rendered by the state to one
economic entity at the time when the same economic activity is
carried out by other entities without state support is
constitutionally unjustifiable.
According to the petitioner, the fact that, under the Law
on the Lithuanian National Radio and Television, the LRT can
implement both economic and commercial profit-seeking activity
independently is not in line with the status of the LRT as a
public non-profit institution established by the state.
1.3. The principles of LRT activity are virtually not
different from the general principles of mass media and,
practically, the same requirements are applied to it as to
commercial broadcasters. Under Paragraph 2 of Article 4 of the
Law on the Lithuanian National Radio and Television, "priority
shall be accorded in LRT programmes, to national culture as well
as informational, world culture, journalistic, analytical,
educational and art broadcasts" "mass culture shall be reflected
in review, informative and analytical type broadcasts". In the
opinion of the petitioner, such definition of the purpose of the
public broadcaster is unclear, since it does not establish to
which LRT broadcasts the right of priority is to be accorded: it
is accorded to "national culture", as well as to informational,
journalistic, educational and like broadcasts. However, the fact
that the LRT broadcasts informational, journalistic, educational
and like broadcasts still does not serve as the basis for
allocation of State Budget funds to the LRT, since commercial
radio and television broadcasters broadcast such broadcasts
(which are sometimes better) as well. According to the
petitioner, in the European Union (hereinafter also referred to
as the EU) state support is justifiable only in the sphere of
protection of culture and heritage. Informational and educational
broadcasts per se are not attributed to this sphere. State
support to informational, educational and other broadcasts may be
justifiable and the rules of fair competition may be not applied
insofar as non-rendition of such support would hinder to foster
culture, provided the legislator has chosen a broader definition
of the public mission and provided this does not harm the EU
common market interests. On the other hand, in order that the
public broadcaster could implement its mission (inasmuch as it is
not defined in the Law on the Lithuanian National Radio and
Television), varied broadcasts designed for varied audience are
necessary.
1.4. State support in necessary for the LRT insofar as the
state-funded activity of the LRT is in compliance with the
interest to develop national culture, the mission which, as a
rule, is not carried out by commercial broadcasters; the state
support of another kind to the LRT is permissible insofar as it
is actually necessary and insofar as it does not impair the
expansion of the broadcasters' market on the national scale as
well as at the EU level. In the opinion of the petitioner, the
Law on the Lithuanian National Radio and Television does not
prevent the direct and indirect use of state support rendered to
the LRT as the national broadcaster for development of LRT
commercial activity. After the principle of priority to national
culture is sacrificed to LRT commercial interests, there appear
difficulties for implementation of this principle in LRT
broadcasts. They are determined also by the LRT administration
model, which is entrenched in the Law on the Lithuanian National
Radio and Television, under which the LRT Council shall: form the
state strategy of the LRT programmes (Item 1 of Paragraph 1 of
Article 10); form the scope and structure of LRT programmes,
annually approve the composition of LRT programmes and changes
thereof (Item 2 of Paragraph 1 of Article 10); supervise how LRT
tasks are implemented and how requirements raised for
broadcasters in legal acts are being adhered to (Item 5 of
Paragraph 1 of Article 10); discuss and approve the annual
reports of LRT activity (Item 8 of Paragraph 1 of Article 10).
Under Paragraph 1 of Article 9 of the Law on the Lithuanian
National Radio and Television, the LRT Council shall be a
governing body of the LRT; the Council shall be funded from LRT
funds (Paragraph 13 of Article 9). Thus, according to the
petitioner, the LRT Council, which is directly related with LRT
economic and commercial interests, is not an independent
supervisory institution.
1.5. According to the petitioner, by the legal regulation
established in Paragraphs 3 and 4 of Article 6 of the Law on the
Lithuanian National Radio and Television the time of allowed
commercial advertising for the LRT is limited not enough. In
addition, the conditions established in this law for commercial
advertising which is broadcast by the LRT not only is not worse
than established for private (commercial) broadcastersthe
maximum amounts of commercial advertising broadcast in LRT
broadcasts are limited even less than it is done with regard to
broadcasts of commercial broadcasters, which receive no state
support. For example, the Law on the Lithuanian National Radio
and Television does not establish any advertising limitation
within one hour of broadcasting, however, Item 5 of Article 10 of
Article 39 of the Law on Provision of Information to the Public
establishes that the proportion of advertising spots (including
teleshopping spots) within a given broadcast hour shall not
exceed 12 minutes (i.e. 20 percent). The duration of advertising
broadcast by any broadcaster must not exceed 15 percent of the
day's broadcast time (Paragraph 3 of Article 6 of the Law on the
Lithuanian National Radio and Television; Item 4 of Paragraph 10
of Article 39 of the Law on Provision of Information to the
Public); even though the duration of advertising broadcast by the
LRT were reduced so that the duration of advertising would not
exceed 10 percent of the day's broadcast time (Paragraph 4 of
Article 6 of the Law on the Lithuanian National Radio and
Television), the situation would not change in essence, since at
present all broadcasters broadcast commercial advertising less
than the duration of 10 percent of the day's broadcast time.
According to the petitioner, the other advertising prohibitions
established for the LRT are not significantly influential on the
receipts of broadcasters.
1.6. The Law on the Lithuanian National Radio and
Television does not define as to what is a public service (in
programmes broadcast by the LRT), therefore the LRT can develop,
without any limits, the commercial activity and to receive
mixedstate and commercialfinancing. However, commercial
advertising is not a public service. Therefore, in the opinion of
the petitioner, it is impossible to justify the provisions of
Article 6 and Paragraph 1 of Article 15 of the Law on the
Lithuanian National Radio and Television under which the LRT has
the right to broadcast commercial advertising and to obtain
additional receipts for that, substantiating them by the fact
that, purportedly, LRT advertising receipts are payment for a
public service. Such mixed LRT financing, in the opinion of the
petitioner, is not in line with the provisions of Paragraphs 2,
3, and 4 of Article 46 of the Constitution.
1.7. The Law on the Lithuanian National Radio and
Television does not establish any tariffs for LRT broadcast
advertising, i.e. it does not establish an obligation to sell
advertising time on the same conditions, under which it is sold
by commercial broadcasters, who do not receive any state
financing, so that they could have an opportunity to operate
under the same conditions as the LRT, too. In addition, in the
opinion of the petitioner, even if one succeeded in proving in a
certain situation that due to advantages created by financing
from the State Budget the LRT advertising tariffs are smaller
than those of commercial advertisers, it would be problematic to
prove the fact of unfair competition (as it is understood in the
Republic of Lithuania Law on Competition) because of the legal
regulation established in the Law on the Lithuanian National
Radio and Television, the Law on Competition and the Republic of
Lithuania Law on Monitoring of State Aid to Economic Entities.
1.8. The Law on the Lithuanian National Radio and
Television consolidates a model of non-differentiated LRT
financing, under which there is no direct link between state
financing and the activity pursued by the LRT, although LRT
activity includes not only provision of public (social) services.
According to the petitioner, the essence of the petition is the
fact whether the establishment of the right to the LRT, which
receives state financing, to engage also in commercial activity
and to obtain extra receipts from commercial advertising is not
in conflict with the principles of fair competition.
1.9. It needs to be noted that the petition of the
petitioner does not present any arguments by which one would
directly substantiate the position that Paragraph 1 (to the
extent disputed by the petitioner) of Article 15 of the Law on
the Lithuanian National Radio and Television is in conflict with
the Constitution not only to the extent that it provides that the
LRT is funded from receipts obtained from commercial advertising,
but also to the extent that it provides that the LRT is funded
from other commercial and economic activity, inter alia the
commercial activity which is pursued by broadcasting not only
commercial, but also other advertising, also that Paragraph 2 (to
the extent disputed by the petitioner) of Article 15 of the same
law is in conflict with the Constitution not only to the extent
that the LRT, when it broadcasts commercial advertising, pursues
commercial activity independently, but also to the extent that it
provides that the LRT independently pursues other commercial
activity.
2. The petition of the petitioner requesting to investigate
whether Paragraph 5 of Article 5 of the Law on the Lithuanian
National Radio and Television to the extent that it provides that
the LRT shall have a priority right to newly co-ordinated
electronic communication channels (radio frequencies), Item 3 of
Paragraph 1 of Article 10 of the same law, Paragraph 4 of Article
31 of the Law on Provision of Information to the Public to the
extent that it provides that channels (radio frequencies) for
broadcasting programmes of the Lithuanian National Radio and
Television are assigned without a tender, are not in conflict
with Paragraph 1 of Article 29 and Paragraphs 2, 3, and 4 of
Article 46 of the Constitution, is grounded on the following
arguments.
2.1. It was established in Paragraph 5 (wording of 29 June
2000) of Article 5 of the Law on the Lithuanian National Radio
and Television: "The LRT shall have a priority right to newly co-
ordinated electronic communication channels (radio frequencies),
state radio and television broadcasting installations with state
of the art radio and television technologies. LRT shall have the
right to have 2 television and 4 radio programmes." It was
established in Paragraph 1 (wording of 29 June 2000) of Article
10 of the same law: "The Council shall: <
> (3) establish the
number of channels and their use in programme transmission". It
was established in Paragraph 4 (wording of 29 August 2000) of
Article 31 of the Law on Provision of Information to the Public:
"LRT activities shall not be licensed. The Communications
Regulatory Authority shall assign channels (radio frequencies)
for broadcasting LRT programmes, without a tender, based upon the
strategic plan, upon co-ordinating the decision with the
Commission."
2.2. Broadcasting of radio and television programmes is
linked with the right to a corresponding electronic communication
channel (radio frequency). Laws have granted a privilege to the
LRT which is not enjoyed by other television and radio
broadcasters: it has a priority right to newly co-ordinated
electronic communication channels (radio frequencies) (Paragraph
5 of Article 5 of the Law on the Lithuanian National Radio and
Television); the LRT Council establishes the number of channels
and their use in programme transmission (Paragraph 1 of Article
10 of the Law on the Lithuanian National Radio and Television);
channels (radio frequencies) for broadcasting LRT programmes are
assigned without a tender (Paragraph 4 of Article 31 of the Law
on Provision of Information to the Public). In the opinion of the
petitioner, such legal regulation violates the constitutional
principles of equality of persons, of freedom of economic
activity and of fair competition, as the LRT, whose council has
an exceptional right to establish the number of channels by which
LRT radio and television programmes are broadcast, virtually has
an unlimited opportunity to increase the number of channels used
and its share in the market and thus not to permit that new
commercial broadcasters enter into the market; the granting of
the priority right to the LRT to receive electronic communication
channels (radio frequencies) denies a possibility for
competition, since an electronic communication channel (radio
frequency) is assigned to the LRT (which, as mentioned, pursues
commercial activity by this channel (radio frequency)) without a
tender.
2.3. Paragraph 22 of Article 2 of the Law on Provision of
Information to the Public defines a "programme" as "the total
entity of broadcasts transmitted by a broadcaster". Thus, a
programme is not linked with one television channel by which it
is broadcast. Thus, if the total entity of broadcasts is
broadcast by several electronic communication channels (channel
networks), it will still be regarded as only one programme. In
the opinion of the petitioner, it is especially legally deficient
that the number of channels is established by the LRT Council,
which is a LRT governing body and whose activity is financed from
LRT funds. After the LRT Council establishes the number of
channels at its discretion, all expenses of transmission of inter
alia commercial advertising, lotteries, entertainment broadcasts,
will have to be covered from the State Budget. Thus, the LRT
Council, when it establishes as to how many channels are to be
used by the LRT exerts direct influence on other broadcasters,
since the priority right to newly coordinated electronic
communication channels (radio frequencies) belongs to the LRT.
Therefore, independent broadcasters may only aspire to those
newly coordinated channels (radio frequencies) which are left
from the LRT. In the opinion of the petitioner, granting the
priority right to the LRT to newly coordinated electronic
communication channels (radio frequencies) and State Budget
financing of broadcasting services via these channels is not in
line not only with the Constitution, but also EU law.
3. The petition of the petitioner also presents information
about the legal regulation of corresponding relations in other
states, about Lithuanian Radio and Television broadcasters, the
advertising market of the Lithuanian Radio and Television and
factual aspects of LRT activity.
III
In the course of preparation of the case for the
Constitutional Court hearing, written explanations were received
from R. Šniukaitė (at the time of consideration of the
constitutional justice case at issueR. Bielskė) and A. Skaistys,
the representatives of the Seimas, the party concerned, in which
it is maintained that the disputed legal regulation established
in the Law on the Lithuanian National Radio and Television and
the Law on Provision of Information to the Public is not in
conflict with the Constitution. The representatives of the
Seimas, the party concerned, ground their position on the
following arguments.
1. R. Šniukaitė maintains (while substantiating it inter
alia by EU law) that greater requirements are raised to radio and
television than to other means of mass media especially because
of their big impact on wide audience, also due to the fact that
technical possibilities of radio and television programmes
broadcasting are not limitless. It is necessary to coordinate the
freedom of information with execution of certain technical
requirements raised to audiovisual mass media. It is important
that due to the regulation of mass media activity and limitations
on freedom of information one not violate the democratic state
principle of pluralism, which is legally guaranteed, among other
things, by banning censorship and monopolisation of mass media.
The right of the state to regulate economic activity
creates constitutional pre-conditions to pass laws by means of
which one reacts to the state of the national economy, the
diversity of and changes in social life. The right of the LRT to
pursue economic activity is namely the guarantee of freedom of
economic activity entrenched in the Constitution, which creates
conditions for implementation of the obligation established to
the public broadcaster to collect and publicise information about
Lithuania and the world, to familiarise the public with diversity
of European and world culture and the basics of modern
civilisation, to strengthen public morality and public spirit, to
foster ecological culture of this country. According to the
representative of the Seimas, the party concerned, when preparing
and publicising broadcasts, the LRT must follow the principles of
objectivity, democracy and impartiality, ensure the liberty of
expression and creation, various attitudes and convictions must
be reflected in the broadcasts and people of various convictions
have the right to participate in them and to express their
attitudes.
According to R. Šniukaitė, the fact that legal norms could
be implemented improperly and such implementation could violate
other legal acts (and due to this would be recognised illegal)
should not serve as the grounds for recognition of the legal
norms themselves as anti-constitutional.
According to the representative of the Seimas, the party
concerned, the right of the LRT established in the Law on the
Lithuanian National Radio and Television to broadcast two
television and four radio programmes is not unlimited and does
not deprive private broadcasters of the opportunities to acquire
licences under established procedure, to use electronic
communications resources and to conduct commercial activity.
2. According to A. Skaistys, the LRT is not a participant
of the television and/or radio advertising market, which could be
equivalent to commercial broadcasters. The advertising
limitations applied to it are established not only in the Law on
Provision of Information to the Public, the Republic of Lithuania
Law on Advertising, but in the Law on the Lithuanian National
Radio and Television, too. Besides, the opportunity of the LRT to
be an equal-worth participant of the broadcasters' advertising
market is also limited by the requirements for the content of LRT
programmes established in legal acts.
The priority right to the LRT to newly coordinated
electronic communication channels (radio frequencies), the
constitutionality of which is being disputed in this
constitutional justice case by the petitioner, is grounded on the
ownership right of the state to this property. The fact that the
right of priority to use state property is established not for
private persons, but to a state establishment, is, in the opinion
of the representative of the Seimas, the party concerned, a
proper decision in regard to regulating property relations.
According to the representative of the Seimas, the party
concerned, radio frequencies (channels) are limited electronic
communication resources; under the Republic of Lithuania Law on
Electronic Communications (which was adopted by the Seimas and
came into force after the petition of the petitioner had been
received at the Constitutional Court) they are administered by
the Communications Regulatory Authority; they are administered
according to the National Table of Radio Frequencies Distribution
and the plan of the radio frequencies (channels) use which is
confirmed by the Communications Regulatory Authority, as well as
according to radio communication development plans.
According to A. Skaistys, the established priority right to
the LRT to newly coordinated electronic communication channels
(radio frequencies) is not unlimited. It only means that the LRT
may, without a tender and by priority procedure, however,
according to laws receive permissions, which grant the rights to
this broadcaster, which are analogous to those which are granted
to other broadcasters by issuing licences. In the opinion of the
representative of the Seimas, the party concerned, after the
priority right of the LRT to newly coordinated electronic
communication channels (radio frequencies) to had been
established, the constitutional principle of equality of all
persons was not violated, since this principle does not deny the
fact that that the law may establish unequal legal regulation in
regard to categories of persons who are in different situations.
IV
In the course of the preparation of the case for the
Constitutional Court hearing, written explanations were received
from I. Šiaulienė, Chairwoman of the Seimas Committee of the
Development of Information Society, J. Lionginas, Chairman of the
Seimas Committee on Budget and Finance, P. Auštrevičius, Deputy
Chairman of the Seimas Committee on European Affairs, K.
Virketis, Director of the Legal Department of the Office of the
Seimas, V. Baliūnienė, Director of the Legal Department of the
Office of the Government of the Republic of Lithuania, A.
Stančikas, Director of the Department of Co-ordination and
Monitoring of European Law Implementation of the Office of the
Government of the Republic of Lithuania, Z. Balčytis, the
Minister of Transport of the Republic of Lithuania, G. Švedas,
Vice-Minister of Justice of the Republic of Lithuania, J.
Simonavičius, Vice-Minister of Finance of the Republic of
Lithuania, G. Rainys, Secretary of the Ministry of Agriculture of
the Republic of Lithuania, D. Kriaučiūnas, Director General of
the European Law Department under the Ministry of Justice of the
Republic of Lithuania, J. Liniauskas, Chairman of the Lithuanian
Radio and Television Commission, K. Petrauskis, Director General
of the Lithuanian National Radio and Television, Assoc. Prof. E.
Šileikis who works at the Department of Constitutional and
Administrative Law of the Faculty of Law of Vilnius University,
A. Miškinis, Head of the Department of Finance and Tax of the
Faculty of Law of Mykolas Romeris University, V. Novikevičius, a
lecturer of the Department of Finance and Tax of the Faculty of
Law of Mykolas Romeris University, Prof. V. Pakalniškis, Head of
the Department of Civil and Commercial Law of the Faculty of Law
of Mykolas Romeris University, Prof. B. Dekerys, Dean of the
Faculty of Telecommunications and Electronics of the Kaunas
University of Technology and Assoc. Prof. V. Knyva, who works at
the Department of Electronics and Measurement Systems of the same
faculty, as well as R. Šimašius, Vice-President of the Lithuanian
Free Market Institute.
V
1. At the Constitutional Court hearing the advocate V.
Barkauskas, the representative of the group of Members of the
Seimas, the petitioner, reiterated and developed the arguments
set forth in the petition of the petitioner.
1.1. The representative of the group of Members of the
Seimas, the petitioner, inter alia explained that the petitioner
does not negate the need of the existence of the public
broadcaster, however he thinks that the conditions of state
financing of the public broadcaster must be defined more
concretely and the LRT financing transparency must be ensured.
Also, the functional (programme) financing model of the LRT
services rendered to society might be possible, where the state
(corresponding authorised institutions) announce tenders for
rendition of certain public (social) services. In the sphere of
radio and television advertising the commercial receipts of
broadcasters and state budget allocations must be separated.
Therefore, in the opinion of V. Barkauskas, the introduction of
the so-called subscription fee from which LRT activity would be
funded is to be considered.
1.2. According to the representative of the group of
Members of the Seimas, the petitioner, when the LRT is being
funded, one does not follow the conditions of state support
rendered to the public broadcasters established in the
jurisprudence of the Court of Justice of the European
Communities, under which state support in rendition of
corresponding public services is permissible at all.
1.3. According to the representative of the group of
Members of the Seimas, the petitioner, one of the main reasons of
the problem of commercial advertising broadcast by the LRT, which
is raised in this constitutional justice case, is unclear
definition of the mission of the public broadcaster presented in
the Law on the Lithuanian National Radio and Television. High LRT
ratings testify that that the LRT orients itself not to cultural
and educational broadcasts, but to the broadcasts that can
attract more commercial advertising from which commercial
receipts are obtained. In addition, according to representative
of the group of Members of the Seimas, the petitioner, the LRT
Council is also funded from such receipts, therefore it is in no
position to be an independent institution supervising the LRT.
1.4. According to the advocate V. Barkauskas, the disputed
legal regulation (both that designated to commercial advertising
broadcast by the LRT and that designated to the priority right to
newly co-ordinated electronic communication channels (radio
frequencies)) was amended, however, the essence of the legal
regulation remained unchanged. Therefore, in his opinion, there
exist no grounds to dismiss this constitutional justice case.
2. At the Constitutional Court hearing R. Bielskė and A.
Skaistys, the representatives of the Seimas, the party concerned,
virtually reiterated the arguments set forth in their written
explanations.
3. The following witnesses were questioned at the
Constitutional Court hearing: P. E. Kovas, President of the
Lithuanian Radio and Television Association, R. Pakalnis,
Chairman of the Council of the Lithuanian National Radio and
Television, K. Petrauskis, Director General of the Lithuanian
National Radio and Television, and E. Gudelytė, Director of the
Finance and Economy Department of the Lithuanian National Radio
and Television.
4. The following specialists took the floor at the
Constitutional Court hearing: N. Maliukevičius, Director of the
Administration of the Commission of the Lithuanian Radio and
Television, D. Korsakaitė, Director of the Strategy Department of
the Communications Regulatory Authority of the Republic of
Lithuania, and A. Čėsna, Deputy Director of the Radio
Communications Department of the same authority.
The Constitutional Court
holds that:
I
1. The group of Members of the Seimas, the petitioner,
request to investigate whether:
- Paragraphs 1, 3, and 4 of Article 6, Paragraph 1 of
Article 15 of the Law on the Lithuanian National Radio and
Television to the extent that it provided that the Lithuanian
National Radio and Television is funded from the receipts
obtained for advertising and from commercial activity, Paragraph
2 of Article 15 of the same law to the extent that it provided
that the National Radio and Television of Lithuania shall
implement commercial activity independently, are not in conflict
with Paragraphs 2, 3, and 4 of Article 46 of the Constitution;
- Paragraph 5 of Article 5 of the Law on the Lithuanian
National Radio and Television to the extent that it provides that
the Lithuanian National Radio and Television shall have a
priority right to newly co-ordinated electronic communication
channels (radio frequencies), Item 3 of Paragraph 1 of Article 10
of the same law, Paragraph 4 of Article 31 of the Law on
Provision of Information to the Public to the extent that it
provides that channels (radio frequencies) for broadcasting
programmes of the Lithuanian National Radio and Television are
assigned without a tender, are not in conflict with Paragraph 1
of Article 29 and Paragraphs 2, 3, and 4 of Article 46 of the
Constitution.
2. It is specified in the petition of the petitioner that
the Constitutional Court is requested to investigate whether
inter alia the provisions of the Law on the Lithuanian National
Radio and Television (wording of 29 June 2000) are not in
conflict with the Constitution, "unless it is pointed out
otherwise", however, the petition does not contain any references
to other wordings of this law (articles and paragraphs thereof).
The petition of the petitioner does not indicate as to the
wording of the Law on Provision of Information to the Public, the
compliance of Paragraph 4 of Article 31 whereof with the
Constitution he is disputing. In this context it needs to be
noted that at the time of submission of the petition of the
petitioner to the Constitutional Court the Law on Provision of
Information to the Public was set forth in the wording of 29
August 2000 (with subsequent amendments and supplements), and its
Article 31 was set forth in the wording of 29 August 2000.
3. It is clear from the arguments of the petitioner that
the Constitutional Court is requested to investigate whether
- Paragraph 5 of Article 5 (wording of 29 June 2000) of the
Law on the Lithuanian National Radio and Television to the extent
that it provided that the Lithuanian National Radio and
Television shall have a priority right to newly co-ordinated
electronic communication channels (radio frequencies) was not in
conflict with Paragraph 1 of Article 29 and Paragraphs 2, 3, and
4 of Article 46 of the Constitution;
- Paragraphs 1, 3, and 4 (wording of 29 June 2000) of
Article 6 the Law on the Lithuanian National Radio and Television
to the extent that they provided for a possibility to broadcast
commercial advertising in programmes of the Lithuanian National
Radio and Television was not in conflict with Paragraphs 2, 3,
and 4 of Article 46 of the Constitution;
- the provision "The Council shall: <
> (3) establish the
number of channels and their use in programme transmission" of
Paragraph 1 of Article 10 (wording of 29 June 2000) of the Law on
the Lithuanian National Radio and Television was not in conflict
with Paragraph 1 of Article 29 and Paragraphs 2, 3, and 4 of
Article 46 of the Constitution;
- Paragraph 1 of Article 15 (wording of 29 June 2000) of
the Law on the Lithuanian National Radio and Television to the
extent that it provided that the Lithuanian National Radio and
Television is funded from the receipts obtained for advertising
and from commercial activity was not in conflict with Paragraphs
2, 3, and 4 of Article 46 of the Constitution;
- Paragraph 2 of Article 15 (wording of 29 June 2000) of
the Law on the Lithuanian National Radio and Television to the
extent that it provided that the National Radio and Television of
Lithuania shall implement commercial activity independently when
it broadcasts commercial advertising, was not in conflict with
Paragraphs 2, 3, and 4 of Article 46 of the Constitution;
- Paragraph 4 of Article 31 (wording of 29 August 2000) of
the Law on Provision of Information to the Public to the extent
that it provided that channels (radio frequencies) for
broadcasting programmes of the Lithuanian National Radio and
Television are assigned without a tender, was not in conflict
with Paragraph 1 of Article 29 and Paragraphs 2, 3, and 4 of
Article 46 of the Constitution.
II
1. On 8 October 1996, the Seimas adopted the Republic of
Lithuania Law on the Lithuanian National Radio and Television,
which (save the exception specified in Article 16) came into
force on 23 October 1996.
2. The Law on the Lithuanian National Radio and Television
(wording of 8 October 1996) was amended and supplemented by: the
Republic of Lithuania Law on Amending and Supplementing Articles
4, 8 and 10 of the Law on the Lithuanian National Radio and
Television, which was adopted by the Seimas on 5 December 1996;
the Republic of Lithuania Law on Amending and Supplementing
Article 8 of the Law on the Lithuanian National Radio and
Television, which was adopted by the Seimas on 12 December 1996;
the Republic of Lithuania Law on Amending and Supplementing
Articles 8, 9 and 10 of the Law on the Lithuanian National Radio
and Television, which was adopted by the Seimas on 25 September
1997.
3. On 29 June 2000, the Seimas adopted the Republic of
Lithuania Law on Amending the Law on the Lithuanian National
Radio and Television which (save the exceptions specified in
Article 2) came into force on 19 July 2000. By Article 1 of this
law the Law on the Lithuanian National Radio and Television was
amended and set forth in a new wording (wording of 8 October 1996
with subsequent amendments and supplements). It was established
in Paragraph 1 of Article 2 of the Law on Amending the Law on the
Lithuanian National Radio and Television (wording of 29 June
2000) that "the LRT financing procedure established in this law
shall come into force on 1 January 2001".
In the context of the constitutional justice case at issue
it needs to be noted that in the Law on the Lithuanian National
Radio and Television (wording of 29 June 2000, also with
subsequent amendments) the formula "financing procedure" was not
employed; nor was it employed in the Law on Amending the Law on
the Lithuanian National Radio and Television (wording of 29 June
2000, also with subsequent amendments), save said Paragraph 1 of
Article 2 of the Law on Amending the Law on the Lithuanian
National Radio and Television. It is clear from the text of the
Law on the Lithuanian National Radio and Television (wording of
29 June 2000) that this formula covers the provisions of this
law, which are set forth in:
- Paragraph 1 of Article 15, which, as mentioned, provided:
"The LRT shall be funded from the allocation of the State Budget,
income obtained from the State levy for the services provided to
the public by the LRT, for transmission of radio and television
broadcasts, advertisement, publishing and from sponsorship and
receipts obtained from commercial and economic activity. With the
increase of LRT receipts from the State levy, LRT financing from
the State Budget shall be reduced accordingly";
- Paragraph 4 of Article 6, which, as mentioned, provided:
"With the increase of LRT receipts obtained from the State levy,
advertising time shall be gradually and proportionately reduced
to 10 percent of a day's broadcast time, per decision of the
Council."
When the legal regulation established in Paragraph 1
(wording of 29 June 2000) of Article 15 and Paragraph 4 (wording
of 29 June 2000) of Article 6 of the Law on the Lithuanian
National Radio and Television is construed in the context of the
legal regulation established in other laws which were in force at
that time, it needs to be held that that in order that the LRT
would be funded from a certain source specified in Paragraph 1 of
Article 15 (wording of 29 June 2000) of the Law on the Lithuanian
National Radio and Television, save the state levy for the
services rendered to the public by the LRT (which is, as a rule,
called "subscription fee") one did not have to establish a
separate financing procedure. Meanwhile, the said state levy was
not established by any laws at the time of entry into force of
the Law on the Lithuanian National Radio and Television (wording
of 29 June 2000). It needs to be mentioned that it was
established in Paragraph 4 (which at the time of entry into force
of the Law on the Lithuanian National Radio and Television
(wording of 29 June 2000) was set forth in the wording of 28
March 2000) of Article 29 of the Law on Provision of Information
to the Public that "the size of the state levy for the services
rendered to the public by the LRT shall be established on the
basis of the law".
Taking account of the fact that the formula "the LRT
financing procedure established in this law" is to be construed
as encompassing the provisions of Paragraph 1 (wording of 29 June
2000) of Article 15 and Paragraph 4 of Article 6 of the Law on
the Lithuanian National Radio and Television in which the state
levy for the services rendered to the public by the LRT is
provided for.
Thus, the provision "the LRT financing procedure
established in this law shall come into force on 1 January 2001"
of Paragraph 1 of Article 2 of the Law on Amending the Law on the
Lithuanian National Radio and Television (wording of 29 June
2000) is to be construed as meaning that the provisions "the LRT
shall be funded <
> from the State levy for the services provided
to the public by the LRT" and "with the increase of LRT receipts
from the State levy, LRT financing from the State Budget shall be
reduced accordingly" of Paragraph 1 of Article 15 and the
provision "with the increase of LRT receipts obtained from the
State levy, advertising time shall be gradually and
proportionately reduced to 10 percent of a day's broadcast time"
of Paragraph 4 of Article 6 of the Law on the Lithuanian National
Radio and Television (wording of 29 June 2000) had to be applied
as form 1 January 2001. The other provisions of Paragraph 1 of
article 15 of the Law on the Lithuanian National Radio and
Television (wording of 29 June 2000) had to be applied as from 19
July 2000, after the Law on the Lithuanian National Radio and
Television (wording of 29 June 2000) had come into force.
Alongside, it needs to be held that by such legal regulation the
legislator took an obligation to establish a state levy (the so-
called subscription fee) for the public services rendered to the
public by the LRT by means of a lawhe had to do this by a law,
the date of whose entry into force could not be later than 1
January 2001, unless the Seimas decided otherwise and established
this by a law.
In this context, it needs to be noted that the date of the
beginning of the application of the provisions "the LRT shall be
funded <
> from the State levy for the services provided to the
public by the LRT" and "with the increase of LRT receipts from
the State levy, LRT financing from the State Budget shall be
reduced accordingly" of Paragraph 1 of Article 15 and the
provision "with the increase of LRT receipts obtained from the
State levy, advertising time shall be gradually and
proportionately reduced to 10 percent of a day's broadcast time"
of Paragraph 4 of Article 6 of the Law on the Lithuanian National
Radio and Television (wording of 29 June 2000), which was
established in Article 2 of the Law on the Lithuanian National
Radio and Television (wording of 29 June 2000), used to be
delayed. This was done by: the Republic of Lithuania Law on
Amending Article 2 of the Law on Amending the Law on the
Lithuanian National Radio and Television, which was adopted by
the Seimas on 23 December 2000, by Paragraph 1 of Article 1 of
which Paragraph 1 (wording of 29 June 2000) of Article 2 of the
Law on Amending the Law on the Lithuanian National Radio and
Television was amended and it was established that "the LRT
financing procedure established in this law shall come into force
on 1 January 2002"; the Republic of Lithuania Law on Amending
Article 2 of the Law on Amending the Law on the Lithuanian
National Radio and Television, which was adopted by the Seimas on
21 December 2001, by Paragraph 1 of Article 1 of which Paragraph
1 (wording of 23 December 2000) of Article 2 of the Law on
Amending the Law on the Lithuanian National Radio and Television
was amended and it was established that "the LRT financing
procedure established in this law shall come into force on 1
January 2003"; the Republic of Lithuania Law on Amending Article
2 of the Law on Amending the Law on the Lithuanian National Radio
and Television, which was adopted by the Seimas on 10 December
2002, by Article 1 of which Paragraph 1 (wording of 21 December
2001) of Article 2 of the Law on Amending the Law on the
Lithuanian National Radio and Television was amended and it was
established that "the LRT financing procedure established in this
law shall come into force on 1 January 2004"; the Republic of
Lithuania Law on Amending Article 2 of the Law on Amending the
Law on the Lithuanian National Radio and Television, which was
adopted by the Seimas on 11 December 2003, by Article 1 of which
Paragraph 1 (wording of 10 December 2002) of Article 2 of the Law
on Amending the Law on the Lithuanian National Radio and
Television was amended and it was established that "the LRT
financing procedure established in this law shall come into force
on 1 January 2005"; the Republic of Lithuania Law on Amending
Article 2 of the Law on Amending the Law on the Lithuanian
National Radio and Television, which was adopted by the Seimas on
22 December 2004, by Article 1 of which Paragraph 1 (wording of
11 December 2003) of Article 2 of the Law on Amending the Law on
the Lithuanian National Radio and Television was amended and it
was established that "the LRT financing procedure established in
this law shall come into force on 1 January 2006".
Still later the Seimas abandoned the undertaken obligation
to establish a state levy (the so-called subscription fee) for
the services provided to the public by the LRT altogether. In
this context it needs to be mentioned that on 22 December 2005
the Seimas adopted the Republic of Lithuania Law on Amending the
Law on the Lithuanian National Radio and Television which came
into force on 31 December 2005; by Article 1 thereof the Law on
the Lithuanian National Radio and Television (wording of 29 June
2000 with subsequent amendments) was amended and set forth in a
new wording. The Law on the Lithuanian National Radio and
Television (wording of 22 December 2005) no longer contained
provisions providing for a state levy (the so-called subscription
fee) for the services rendered to the public by the LRT or any
other levy paid to fund LRT activity.
The Constitutional Court has held that the principle of a
state under the rule of law consolidated in the Constitution
inter alia implies that the legal regulation established in laws
and other legal acts must be clear, easy to understand,
consistent, formulas in the legal acts must be explicit,
consistency and internal harmony of the legal system must be
ensured, the legal acts may not contain any provisions, which at
the same time regulate the same public relations in a different
manner (Constitutional Court rulings of 13 December 2004 and 29
September 2005). Otherwise, opportunities to subjects of law to
learn what law demands would be worsened (Constitutional Court
ruling of 29 September 2005). It needs to be underlined that such
setting forth of a legal text, where the law does not specify in
particular as to which are the articles (parts thereof) the date
of the beginning of the application (as a rule, referred to as
the "date of coming into force" in laws) in regard of which is
delayed (a later date of coming into force is established than in
regard of other articles (parts thereof) of a corresponding law)
deviates from the said requirements of the principle of a state
under the rule of law and is deficient. In this respect the legal
regulation established in Paragraph 1 (wording of 29 June 2000)
of Article 2 of the Law on Amending the Law on the Lithuanian
National Radio and Television, as well as the legal regulation
established in Paragraph 1 (wordings of 23 December 2000, 21
December 2003, 10 December 2002, 11 December 2003 and 22 December
2004) of Article 2 of the Law on Amending the Law on the
Lithuanian National Radio and Television, is to be assessed as
deficient as well.
One is also to mention the fact that, as it has been held
in this Constitutional Court ruling, by the Law on Amending the
Law on the Lithuanian National Radio and Television which was
adopted on 22 December 2005, the Seimas abandoned the undertaken
obligation to establish a state levy (the so-called subscription
fee) for the services provided to the public by the LRT
altogether, while Paragraph 1 (wording of 22 December 2004) of
Article 2 of the Law on Amending the Law on the Lithuanian
National Radio and Television (wording of 29 June 2000), which
provides that "the LRT financing procedure established in this
law shall come into force on 1 January 2006" has not been
formally annulled or amended, although, in fact, it may no longer
regulate, nor does it regulate any relations.
4. In the Law on the Lithuanian National Radio and
Television (wording of 29 June 2000) the mission (purpose) of
Lithuanian National Radio and Television was defined, the
principles (inter alia LRT independence) and requirements to it
were consolidated, LRT rights and duties, activity guarantees,
the procedure of administration and liquidation were established.
4.1. Paragraph 1 of Article 5 of this law established that
the LRT is the successor to the rights and responsibilities of
the Lithuanian Radio and Television, founded by the Seimas of
Lithuania, that there may not be any other partners of the LRT,
and that the functions of the general meeting of LRT shall be
assigned to the LRT Council.
4.2. The Law on the Lithuanian National Radio and
Television (wording of 29 June 2000) defined the LRT mission: the
LRT must collect and publish information concerning Lithuania and
the world, acquaint the public with the variety of European and
world culture and principles of modern civilisation, reinforce
the independence and democracy of the Republic of Lithuania,
create, nurture and protect the values of national culture,
foster tolerance and humanism, culture of co-operation, thought
and language, and strengthen public morality and civic awareness
and develop the country's ecological culture (Paragraph 1 of
Article 3).
4.3. This LRT mission implies certain LRT activity
principles and requirements to the content of LRT programmes and
some of them were explicitly entrenched in the Law on the
Lithuanian National Radio and Television (wording of 29 June
2000). The LRT had to implement its mission by according priority
in LRT programmes to national culture as well as informational,
world culture, journalistic, analytical, review, educational and
art broadcasts, while reflecting mass culture in review,
informative and analytical type broadcasts (Paragraph 2 of
Article 4). It was also established that in preparing and
broadcasting its coverage the LRT must be guided by the
principles of objectivity, democracy and impartiality, ensure
freedom of speech and creative freedom, must reflect in its
broadcasts diverse opinions and convictions, with individuals of
various convictions having the right to take part and voice their
views in them, must ensure that human rights and dignity must be
respected in the broadcasts, and the principles of morality and
ethics must not be violated (Paragraph 1 of Article 3).
4.4. The Law on the Lithuanian National Radio and
Television (wording of 29 June 2000) established other
requirements to LRT programmesto their structure, content and
length, as, for instance: one had to ensure that over a half of
the LRT programmes be comprised of the sound and video
(audiovisual) works of European and Lithuanian authors, that at
least ten percent of the LRT programme be comprised of
independent producers' (natural or legal persons producing radio
and television broadcasts, non-subordinate to the LRT and not
connected with it by property relations or joint activity) sound
and video (audiovisual) productions, produced no earlier than
within the past five years (Paragraph 3 of Article 4); one had to
ensure variety of topics and genres in the programmes of LRT and
that the broadcasts be oriented towards the various strata of
society and people of different ages, of various nationalities
and convictions, that biased political views be not allowed to
predominate in the programmes; that the information presented in
LRT information broadcasts and commentaries be balanced and
reflecting various political views, while opinions and factual
news be authorised, verified and comprehensive (Paragraph 1 of
Article 4); one had to ensure the minimum duration of LRT
programme broadcasts: television: work days, 12 hours per 24-hour
period, while during weekends and holidays16 hours per 24-hour
period (Item 1 of Paragraph 4 of Article 4); radio: First
Programme shall be 24 hours per 24-hour period, Second
Programme18 hours per 24-hour period and Third Programme12
hours-per 24-hour period (Item 2 of Paragraph 4 of Article 4).
4.5. In order that the LRT could properly carry out its
mission defined in the Law on the Lithuanian National Radio and
Television (wording of 29 June 2000), various rights and duties
were established to the LRT in this law, inter alia: the right of
publishing (Paragraph 2 of Article 5); the right of recording and
transmission of the Seimas and Government sitting proceedings,
and formal acts of the state free of charge and use the
recordings at its own discretion (Paragraph 2 of Article 5); the
right to provide teletext services (Paragraph 3 of Article 5),
the right to freely prepare no longer than 90-second informative
segments of publicly significant political and other events in
Lithuania and other countries, or cultural, sports and other
events, for the provision of information to the public whereof,
other broadcasters have acquired an exclusive right (Paragraph 3
of Article 5); the right to hold competitions, festivals,
conferences, seminars, establish art collectives, establish
direct ties with foreign organisations and companies, take part
in the activities of international organisations, to organise
radio and television broadcasts to foreign countries, re-transmit
foreign radio and television programmes on the basis of
agreements, to establish branches and correspondent centres and
to publish informative publications regarding its activity
(Paragraph 4 of Article 5); the duty to provide time for the
President of the Republic to speak on internal and foreign policy
issues in accordance with the procedure established by the Law on
the President, the duty, following a request by the Seimas or the
Government, according to its resources to provide time, as soon
as possible, for official Seimas and Government announcements, as
well as the right to allow a representative of the opposition to
speak (Paragraph 6 of Article 5); the duty to provide time for
Lithuania's traditional and state-recognised religious
communities to broadcast religious services in accordance with
the conditions and procedure stipulated in bilateral agreements
(Paragraph 7 of Article 5); the duty to provide time during
elections for the candidates to the post of the President of the
Republic, political parties and candidates thereof to the Seimas
or municipal council membership in accordance with the conditions
and procedure established by the laws on the elections of the
President of the Republic, elections to the Seimas and municipal
councils (Paragraph 8 of Article 5); the duty to create
conditions for workers to raise their qualifications (Paragraph 9
of Article 5); the duty to ensure for its listeners and viewers,
the minimum of information, stipulated by the LRT Council during
strike actions by the employees of the LRT (Paragraph 1 of
Article 8); the duty to broadcast the official statements of the
President of the Republic, the Seimas, the Government, the
Constitutional Court and the Office of the Prosecutor General in
the event of natural disasters, epidemics, an extraordinary or
war situation (Paragraph 2 of Article 8).
4.6. The Law on the Lithuanian National Radio and
Television (wording of 29 June 2000) established an opportunity
to broadcast advertising in LRT programmes in accordance with the
procedure established by laws (Paragraph 1 of Article 6). Thus,
under this law, the LRT also had the right to broadcast
commercial advertising.
Alongside, the length of advertising (including commercial
one) was limited in LRT programmes: duration of advertising both
on LRT television and on LRT radio programmes could not exceed 15
percent of the day's broadcast time (Paragraph 3 of Article 6),
while with the increase of LRT receipts obtained from the state
levy, advertising time had to be gradually and proportionately
reduced to 10 percent of a day's broadcast time, per decision of
the LRT Council (Paragraph 4 of Article 6). Also a prohibition
was established to insert an advertisement in the broadcast of
films that are less than 45 minutes long (Paragraph 6 of Article
6). In addition, advertising in LRT programmes was prohibited: on
days of mourning announced by the state (Item 1 of Paragraph 2 of
Article 6); during broadcasts of events of state significance
(Item 2 of Paragraph 2 of Article 6); during broadcasts intended
for children (Item 3 of Paragraph 2 of Article 6). The LRT was
prohibited from broadcasting teleshopping ads (Paragraph 7 of
Article 6).
4.7. The Law on the Lithuanian National Radio and
Television (wording of 29 June 2000) established LRT activity
guarantees, inter alia: the LRT priority right to newly co-
ordinated electronic communication channels (radio frequencies),
state radio and television broadcasting installations with state
of the art radio and television technologies, also the right to
have 2 television and 4 radio programmes (Paragraph 5 of Article
5); the prohibition to other radio and television stations to
operate through the channels used by LRT without permission of
the LRT Council (Paragraph 10 of Article 5); the LRT financing
from the allocation of the State Budget, receipts obtained from
the state levy for the services provided to the public by the
LRT, for transmission of radio and television broadcasts,
advertisement, publishing and from sponsorship and receipts
obtained from commercial and economic activity (Paragraph 1 of
Article 15); the independence of the National Radio and
Television of Lithuania in implementing commercial, economic and
publishing activity (Paragraph 2 of Article 15); indication of
the funds allocated to the LRT on a separate line in the State
Budget of the Republic of Lithuania (the funds for LRT programme
transmission are allocated from the State Budget, while the sum
thereof shall be indicated on a separate line of the Law on the
State Budget) (Paragraph 3 of Article 15); the prohibition to
apply bankruptcy to the LRT (Paragraph 4 of Article 15), were
provided for.
4.8. It needs to be specially emphasised that while seeking
to ensure the independence of the LRT from interference by state
institutions (their officials) and other persons into LRT
activity (due to which it would be more difficult to properly
carry out the LRT mission defined in the Law on the Lithuanian
National Radio and Television (wording of 29 June 2000)), the
objectivity and impartiality of LRT broadcasts, the LRT
governance model was consolidated, where an especially important
role fell on the LRT Council; also, the functions and powers of
the Director General of the LRT, who heads the LRT Administration
and those of the LRT Administrative Commission established for
consideration of issues of LRT economic and financial activity.
In this context it needs to be mentioned that in Paragraph
1 of Article 9 (wording of 29 June 2000) of the Law on the
Lithuanian National Radio and Television defined the LRT Council
and Administration as "the governing bodies of the LRT".
4.8.1. The LRT Council had to be formed under procedure
established in Article 29 (which at the time of entry into force
of the Law on the Lithuanian National Radio and Television
(wording of 29 June 2000) was set forth in the wording of 28
March 2000) of the Law on Provision of Information to the Public
for a six-year term from 12 personspublic, science and art
representatives: for the first term of office of the LRT Council
4 members were appointed by the President of the Republic for a
six-year term of office, 4 membersby the Seimas for a four-year
term of office (2 members had to be appointed from the candidates
proposed by the parliamentary groups of the opposition), while 4
members for a two-year term of office were delegated (one member
each) by the Lithuanian Creative Artists Association, the
Lithuanian Science Council, the Lithuanian Education Council and
the Lithuanian Bishops' Conference; upon expiry of the term of
powers of a member of the LRT Council, the institution
(organisation) that appointed or delegated him had to appoint a
new member for a six-year term, while the Seimas had to confirm
the composition of the LRT Council (Paragraph 5).
Under the Law on the Lithuanian National Radio and
Television (wording of 29 June 2000) the LRT Council had to adopt
the most important decisions regarding LRT activity. For example,
the Council had: to form the state strategy of the LRT Programmes
(Item 1 of Paragraph 1 of Article 10); to form the scope and
structure of LRT programmes, annually approve the composition of
LRT programmes and changes thereof (Item 2 of Paragraph 1 of
Article 10); to establish the number of channels and their use in
programme transmission (Item 3 of Paragraph 1 of Article 10); to
approve LRT bylaws (Item 4 of Paragraph 1 of Article 10); to
supervise how LRT tasks are implemented and requirements raised
for broadcasters in legal acts are being adhered to (Item 5 of
Paragraph 1 of Article 10); to deliberate and approve long-term
and annual plans of LRT activity (Item 6 of Paragraph 1 of
Article 10); to approve annual receipt and expense estimates of
LRT administration and reports on implementation thereof (Item 7
of Paragraph 1 of Article 10); to discuss and approve the annual
reports of LRT activity (Item 8 of Paragraph 1 of Article 10); to
approve the positions of creative LRT employees working according
to fixed-term contracts and employees, accepted by the procedure
of open competition (Item 9 of Paragraph 1 of Article 10); to
approve results of competition on LRT broadcast preparation (Item
10 of Paragraph 1 of Article 10); to establish the LRT
Administrative Commission to deliberate issues of LRT economic
and financial activity (Item 11 of Paragraph 1 of Article 10); to
approve regulations of the Administrative Commission (Item 12 of
Paragraph 1 of Article 10); to appoint members of Administrative
Commission (Item 13 of Paragraph 1 of Article 10); to establish
the procedure of public competition for the post of the LRT
Director General (Item 14 of Paragraph 1 of Article 10); to
announce a competition at least within 15 days after election of
the Chairman of the LRT Council, for the post of the LRT Director
General (Item 15 of Paragraph 1 of Article 10); to appoint the
Director General to a five-year term, by way of a public
competition and determine his salary (Item 16 of Paragraph 1 of
Article 10)a LRT Council member could not be the LRT Director
General (Paragraph 2 of Article 10); to stipulate the number of
assistants of the Director General (Item 17 of Paragraph 1 of
Article 10); upon recommendation of the Director General, to
appoint ant dismiss his assistants (Item 18 of Paragraph 1 of
Article 10). It was also established that the LRT Council had the
right to send its representatives to meetings of the LRT
Administration and the LRT Administrative Commission, and also to
obtain from the LRT Administration, the LRT Administrative
Commission, state and municipal institutions and establishments
the information necessary in the implementation of its functions
(Paragraph 5 of Article 10). It has been mentioned that the LRT
Council also could permit or not permit other radio and
television stations to operate through the channels used by the
LRT (Paragraph 10 of Article 5). It was established that the
decisions of the LRT Council shall be mandatory for the LRT
(Paragraph 3 of Article 10); if the LRT Director General failed
to agree with a LRT Council decision, he could appeal to the LRT
Council with a justified request to reconsider the decision (save
an established exception), while the latter, not later than
within 10 days, had to deliberate the request by the Director
General and following a repeated balloting of the same decision
by more than one half of all LRT Council members, the LRT
Director General had to execute the decision (Paragraph 4 of
Article 10).
The Law on the Lithuanian National Radio and Television
(wording of 29 June 2000) established that the activity of the
LRT Council shall be public (alongside, a possibility was
provided for closed meetings); the LRT Council had to render an
accounting of its activity to the public in the press annually,
while the LRT Council chairman had to present an account of LRT
activity at a plenary sitting of the Seimas annually (Paragraph 6
of Article 10).
4.8.2. The Law on the Lithuanian National Radio and
Television (wording of 29 June 2000) established requirements and
prohibitions in regard to LRT Council members, the Director
General, and LRT Administrative Commission members: Seimas and
Government Members, members of the Radio and Television
Commission, state employees of political (personal) confidence,
persons employed according to labour contracts in radio and/or
television stations, including the LRT, as well as owners and co-
owners of radio and television stations could not be LRT Council
members (Paragraph 1 of Article 9); should a person, approved as
the LRT Director General, be a member of a political party or
political organisation, he had to interrupt his membership in
this organisation for the duration of his work as Director
General (Paragraph 3 of Article 12); Seimas and Government
Members, state employees of political (personal) confidence,
persons employed according to labour contracts in radio and/or
television stations, including the LRT, could not be LRT
Administrative Commission members (Paragraph 1 of Article 11);
upon conclusion of the term of office (the length of which was 4
years) of a member of the LRT Administrative Commission, he could
be re-appointed, with the condition that no more than two
consecutive terms of office shall result from this (Paragraph 1
of Article 11).
4.8.3. In this context it needs to be mentioned that under
Paragraph 2 of Article 2 of the Law on Amending Law on the
Lithuanian National Radio and Television, which was adopted by
the Seimas on 29 June 2000, the LRT Administrative Commission had
to be established not later than 31 January 2001. By Paragraph 2
of Article 1 of the Law on Amending Article 2 of the Law on
Amending Law on the Lithuanian National Radio and Television,
which was adopted by the Seimas on 23 December 2000, this
provision was amended and it was established that "the LRT
Administrative Commission shall be established not lather then
within 1 month of the coming into force of the financing
procedure established in this Law" (Paragraph 2 of Article 2 of
the Law on Amending Law on the Lithuanian National Radio and
Television (wording of 23 December 2000)). Thus the formation of
the LRT Administrative Commission was related with the beginning
of the application of the provisions "the LRT shall be funded
from <
> income obtained from the State levy for the services
provided to the public by the LRT", "with the increase of LRT
receipts from the State levy, LRT financing from the State Budget
shall be reduced accordingly" of Paragraph 1 of Article 15 of the
Law on the Lithuanian National Radio and Television (wording of
29 June 2000) and the provision "with the increase of LRT
receipts obtained from the State levy, advertising time shall be
gradually and proportionately reduced to 10 percent of a day's
broadcast time, per decision of the Council" of Paragraph 4 of
Article 6 of the same law, i.e. with the establishment, by means
of a law, of a state levy (the so-called subscription fee) for
the services provided to the public by the LRT. As mentioned, the
establishment of such a levy used to be postponed, while later
the Seimas abandoned the undertaken obligation to establish a
state levy (the so-called subscription fee) for the services
provided to the public by the LRT altogether.
4.8.4. By Article 1 of the Republic of Lithuania Law on
Amending Article 9 of the Law on the Lithuanian National Radio
and Television, which was adopted by the Seimas on 31 August
2000, Article 9 of the Law on the Lithuanian National Radio and
Television (wording of 29 June 2000) was amended and set forth in
a new wording. It was inter alia established in Article 9 of the
Law on the Lithuanian National Radio and Television (wording of
31 August 2000) that the LRT Council and Administration shall be
the governing bodies of the LRT (Paragraph 1) and that the LRT
Council "shall be the highest governing institution of the LRT,
representing the public interests" (Paragraph 2).
4.8.5. Summing up, it needs to be held that although the
Law on the Lithuanian National Radio and Television (wording of
29 June 2000) defined the LRT Council (as well as the LRT
Administration) as a LRT governing body (Paragraph 1 of Article
9), also, that, although the LRT Council was compensated for its
sittings and administrative expenses from LRT funds (Paragraph 10
of Article 9), it is clear from the overall legal regulation
consolidated in this law, which is designed for the formation of
the LRT Council, its functions and powers, as well as its
relations with the LRT Director General, who heads the LRT
Administration, and with the LRT Administrative Commission (the
formation of which was related with the establishment, by means
of a law, of a state levy (the so-called subscription fee) for
the services provided to the public by the LRT which never came
into being) that the LRT Council not only had the powers to
decide the most important LRT activity issues independently, but
also that the LRT Council was mostly of public character; as
mentioned, the provision that the LRT Council represents the
public interests was explicitly consolidated in Article 9 of the
Law on the Lithuanian National Radio and Television (wording of
31 August 2000).
It needs to be held that the definition of the LRT Council
as the "LRT governing body" in Article 9 (wordings of 29 June
2000 and 31 August 2000) of the Law on the Lithuanian National
Radio and Television, which sort of implies adoption of prompt
decisions whereby LRT activity is organised, is not in line with
the character of the LRT Council consolidated in this law, nor
the powers of this council established in this law, thus, such
definition is not a precise one.
5. The Law on the Lithuanian National Radio and Television
(wording of 29 June 2000) was amended and supplemented by: the
Law on Amending Article 9 of the Law on the Lithuanian National
Radio and Television, which was adopted by the Seimas on 31
August 2000; the Republic of Lithuania Law on Amending Articles 4
and 6 of the Law on the Lithuanian National Radio and Television,
which was adopted by the Seimas on 17 October 2000; the Republic
of Lithuania Law on Amending Articles 4 and 10 of the Law on the
Lithuanian National Radio and Television, which was adopted by
the Seimas on 25 January 2001; the Republic of Lithuania Law on
Amending Article 5 of the Law on the Lithuanian National Radio
and Television, which was adopted by the Seimas on 15 April 2004.
5.1. Some of these laws also amended the articles of the
Law on the Lithuanian National Radio and Television (wording of
29 June 2000) the paragraphs of which are being disputed in the
constitutional justice case at issue, namely:
- Article 2 of the Law on Amending Articles 4 and 6 of the
Law on the Lithuanian National Radio and Television, which was
adopted by the Seimas on 17 October 2000, Paragraph 6 (wording of
29 June 2000) of Article 6 of the Law on the Lithuanian National
Radio and Television, which used to provide that "it shall be
prohibited for LRT to insert an advertisement in the broadcast of
films that are less than 45 minutes long" (the compliance of
which with the Constitution is not disputed by the Group of
Members of the Seimas, the petitioner, in the constitutional
justice case at issue) was amended and set forth as follows: "If
the duration of broadcast audio and visual works, such as feature
or television films (save serials, films of several parts,
entertainment programmes and documentaries), is longer than 45
minutes, it is permitted to interrupt them by an advertisement
once during 45 minutes; it is permitted to interrupt the
broadcast of these works by an advertisement insertion only in
the cases where the duration of these works is longer by no less
than 20 minutes than two or more 45-minute uninterrupted
broadcasts (the Law on the Lithuanian National Radio and
Television (wording of 17 October 2000)). It needs to be held
that by such amendment to the legal regulation the limitations
for advertising (including commercial one) broadcast on the LRT
were corrected;
- Article 2 of the Law on Amending Articles 4 and 10 of the
Law on the Lithuanian National Radio and Television, which was
adopted by the Seimas on 25 January 2001 amended Item 2 of
Paragraph 1 of Article 10 (wording of 29 June 2000) of the Law on
the Lithuanian National Radio and Television, which used to
provide that the LRT Council shall form the scope and structure
of LRT programmes, annually approve the composition of LRT
programmes and changes thereof (the compliance of which with the
Constitution is not disputed by the Group of Members of the
Seimas, the petitioner, in the constitutional justice case at
issue), and established that the LRT Council shall "form the
scope and structure of LRT programmes, establish the length of
broadcasting of LRT programmes, annually approve the composition
of LRT programmes and changes thereof" (Paragraph 1 of Article 10
(wording of 25 January 2001) of the Law on the Lithuanian
National Radio and Television). It needs to be held that by such
legal regulation greater LRT Council powers were establishedthe
LRT Council could establish the length of broadcasting of LRT
programmes, thus also to indirectly exert influence on
broadcasting of advertising (including commercial one) in LRT
programmes;
- Article 1 of the Law on Amending Article 5 of the Law on
the Lithuanian National Radio and Television, which was adopted
by the Seimas on 15 April 2004, amended Paragraph 5 of Article 5
(wording of 29 June 2000) of the Law on the Lithuanian National
Radio and Television, which used to provide that "the LRT shall
have a priority right to newly co-ordinated electronic
communication channels (radio frequencies), state radio and
television broadcasting installations with state of the art radio
and television technologies" and that "the LRT shall have the
right to have 2 television and 4 radio programmes" (the
compliance of which with the Constitution is disputed by the
group of Members of the Seimas, the petitioner, in the
constitutional justice case at issue) and set this paragraph as
follows: "The LRT shall have the right to broadcast 2 television
and 4 radio programmes. The rights necessary for implementing
this provision shall be granted to the LRT under priority
procedure by the Lithuanian Radio and Television Commission under
procedure established in the Law on Provision of Information to
the Public and the Law on Electronic Communications" (Paragraph 5
(wording of 15 April 2004) of Article 5 of the Law on the
Lithuanian National Radio and Television). It needs to be held
that such amendment of the legal regulation was essential one, as
the Law on the Lithuanian National Radio and Television no longer
contained the provision explicitly entrenching the LRT priority
right to newly coordinated electronic communication channels
(radio frequencies) and state radio and television broadcasting
installations with state of the art radio and television
technologies, however, there appeared a provision entrenching the
LRT priority right to certain rights (which are not explicitly
defined) which had to be granted to the LRT under priority
procedure by the Lithuanian Radio and Television Commission. In
addition, the granting of these rights, which had to be granted
to the LRT under priority procedure by the Lithuanian Radio and
Television Commission, was directly related to the 2 television
and 4 radio programmes specified in Paragraph 5 (wording of 15
April 2004) of Article 5 of the Law on the Lithuanian National
Radio and Television, the broadcasting of which was the right of
the LRT (the right of the LRT to have 2 television and 4 radio
programmes virtually remained unchanged, only in the
corresponding provision instead of the word "to have" the word
"to broadcast" was entered). One is also to note that Paragraph 5
(wording of 15 April 2004) of Article 5 of the Law on the
Lithuanian National Radio and Television made reference to the
Law on Provision of Information to the Public and the Law on
Electronic Communications (which was adopted by the Seimas on 15
April 2004 and which came into force (together with the
exceptions established in Paragraph 1 of Article 79 of this law)
on 1 May 2004, i.e. on the same day as the Law on Amending
Article 5 of the Law on the Lithuanian National Radio and
Television, which was adopted by the Seimas on 15 April 2004): no
matter what rights were necessary for implementation of the
provision "the LRT shall have the right to broadcast 2 television
and 4 radio programmes", they had to be granted to the LRT under
priority procedure by the Lithuanian Radio and Television
Commission under procedure established in the Law on Provision of
Information to the Public and the Law on Electronic
Communications; thus, granting of these rights (differently than
in the situation before the discussed amendment) was directly
related with the 2 television and 4 radio programmes (the
broadcasting of which was a right of the LRT) specified in
Paragraph 5 (wording of 15 April 2004) of Article 5 of the Law on
the Lithuanian National Radio and Television.
5.2. Other paragraphs (wording of 29 June 2000) of the
articles of the Law on the Lithuanian National Radio and
Television, which are disputed by the group of Members of the
Seimas, the petitioner, save Paragraph 5 (wording of 15 April
2004) of Article 5 of this law, were not amended by the laws
amending the paragraphs (wording of 29 June 2000) of the articles
of the Law on the Lithuanian National Radio and Television; the
legal regulation established therein was amended only when the
Law on the Lithuanian National Radio and Television (wording of
29 June 2000) was amended and set forth in a new wording by
Article 1 of the Law on the Lithuanian National Radio and
Television, which was adopted by the Seimas on 22 December 2005.
6. It has been mentioned that on 22 December 2005 the
Seimas adopted the Republic of Lithuania Law on Amending the Law
on the Lithuanian National Radio and Television, by Article 1
whereof the Law on the Lithuanian National Radio and Television
(wording of 29 June 2000 with subsequent amendments) was amended
and set forth in a new wording. It was also mentioned that the
Law on the Lithuanian National Radio and Television, which was
adopted by the Seimas on 22 December 2005, came into force on 31
December 2005.
7. Like the Law on the Lithuanian National Radio and
Television (wording of 29 June 2000), the Law on the Lithuanian
National Radio and Television (wording of 22 December 2005) also
defined the mission (purpose) of the Lithuanian National Radio
and Television, consolidated the principles of its activity
(inter alia LRT independence) and requirements to it, established
the LRT rights and duties, activity guarantees, the procedure for
its governing, reorganisation and liquidation.
7.1. It was established in Paragraph 1 of Article 5 the Law
on the Lithuanian National Radio and Television (wording of 22
December 2005) (like it was done in Paragraph 1 of Article 5 of
the Law on the Lithuanian National Radio and Television (wording
of 29 June 2000)) that the LRT is the successor to the rights and
responsibilities of the Lithuanian Radio and Television, founded
by the Seimas of Lithuania that there may not be any other
partners of the LRT and that the functions of the general meeting
of the LRT shall be assigned to the LRT Council.
7.2. The Law on the Lithuanian National Radio and
Television (wording of 22 December 2005) defined the LRT mission
in the same manner as it had been done in the Law on the
Lithuanian National Radio and Television (wording of 29 June
2000): the LRT must collect and publish information concerning
Lithuania and the world, acquaint the public with the variety of
European and world culture and principles of modern civilisation,
reinforce the independence and democracy of the Republic of
Lithuania, create, nurture and protect the values of national
culture, foster tolerance and humanism, culture of co-operation,
thought and language, and strengthen public morality and civic
awareness and develop the country's ecological culture (Paragraph
1 of Article 3).
7.3. The legal regulation established in the Law on the
Lithuanian National Radio and Television (wording of 22 December
2005) virtually is not different from that established in the Law
on the Lithuanian National Radio and Television (wording of 29
June 2000 with subsequent amendments) also in a number of other
respects: there remained the same LRT activity principles and the
same requirements for the content of LRT broadcasts (the
requirement to accord priority in LRT programmes to national
culture as well as informational, world culture, journalistic,
analytical, educational and art broadcasts, while to reflect mass
culture in review, informative and analytical type broadcasts,
the requirement to be guided by the principles of objectivity,
democracy and impartiality, to ensure freedom of speech and
creative freedom, the prohibition against dominance of one-sided
political views etc.), their structure and length, the rights and
duties of the LRT and guarantees of its activity.
7.4. The Law on the Lithuanian National Radio and
Television (wording of 22 December 2005) established certain LRT
rights which had not been established in the Law on the
Lithuanian National Radio and Television (wording of 29 June 2000
with subsequent amendments). For instance, Paragraph 8 of Article
5 (wording of 22 December 2005) of the Law on the Lithuanian
National Radio and Television established a duty to the LRT to
prepare broadcasts designed for national minorities in which an
opportunity is granted to disseminate culture of the national
minorities, while in Paragraph 9 of the same article a duty to
the LRT was established to prepare broadcasts or programmes
designed for persons with hearing and visual disabilities. In
addition, Article 5 (wording of 22 December 2005) of the Law on
the Lithuanian National Radio and Television already established
not the right to the LRT to allow a representative of the
opposition to speak, but a duty to provide time, following a
request by the leader of the opposition, according to its
resources to provide time, as soon as possible, for official
announcements of the opposition, which is analogous to the LRT
duty to provide, time following a request by the Seimas or the
Government, according to its resources to provide time, as soon
as possible, for official Seimas and Government announcements
which had been established earlier (in Paragraph 6 of Article 5
(wording of 29 June 2000) of the Law on the Lithuanian National
Radio and Television) and is established at present (in Paragraph
6 of Article 5 (wording of 22 December 2005) of the Law on the
Lithuanian National Radio and Television).
7.5. As mentioned, by the Law on Amending the Law on the
Lithuanian National Radio and Television which was adopted by the
Seimas on 22 December 2005 and which came into force on 31
December 2005, one abandoned the intention to establish a state
levy (the so-called subscription fee) for the services provided
to the public by the LRT altogether.
7.6. In the context of the constitutional justice case at
issue, it also needs to be noted that the Law on the Lithuanian
National Radio and Television (wording of 22 December 2005) as
well as the Law on the Lithuanian National Radio and Television
(wording of 29 June 2000) consolidated an opportunity to
broadcast advertising in LRT programmes in accordance with the
procedure established by laws (Paragraph 1 of Article 6), thus,
the LRT right to broadcast also commercial advertising was not
annulled. However, the length of advertising (including
commercial one) is limited in both LRT television as well as LRT
radio programmes. For example, both earlier and at present the
duration of advertising both on LRT television and on LRT radio
programmes may not exceed 15 percent of the day's broadcast time
(Paragraph 4 of Article 6). Advertising is prohibited on LRT
programmes: on days of mourning announced by the state (Item 1 of
Paragraph 2 of Article 6); during broadcasts of events of state
significance (Item 2 of Paragraph 2 of Article 6); during
broadcasts intended for children (Item 3 of Paragraph 2 of
Article 6). It was established in both Paragraph 6 (wording of 17
October 2000) of Article 6 of the Law on the Lithuanian National
Radio and Television and Paragraph 8 (wording of 22 December
2005) of Article 6 of the Law on the Lithuanian National Radio
and Television that if the duration of broadcast audio and visual
works, such as feature or television films (save serials, films
of several parts, entertainment programmes and documentaries), is
longer than 45 minutes, it is permitted to interrupt them by an
advertisement once during 45 minutes; it is permitted to
interrupt the broadcast of these works by an advertisement
insertion only in the cases where the duration of these works is
longer by no less than 20 minutes than two or more 45-minute
uninterrupted broadcasts. Both earlier and at present it is not
permitted to broadcast commercial advertising on LRT
informational and educational programmes or broadcasts (Paragraph
6 of Article 6). Both earlier and at present the LRT is not
permitted to broadcast teleshopping ads (Paragraph 9 of Article
6).
Both Paragraph 5 (wording of 29 June 2000) of Article 6 of
the Law on the Lithuanian National Radio and Television (wordings
of 29 June 2000 and 17 October 2000) and Paragraph 6 (wording of
22 December 2005) of Article 6 of the Law on the Lithuanian
National Radio and Television established the prohibition to
broadcast commercial advertising on LRT informational and
educational programmes or broadcasts; alongside, it needs to be
mentioned that this provision was extended and set forth as
follows: "commercial advertising shall not be broadcast on LRT
informational, educational and cultural programmes" (Paragraph 6
of Article 6); besides, it was established that cultural, social
and educational information shall be information publicly
disseminated in any form and by any means, for payment or other
remuneration or free of charge, by which one seeks to propagate
cultural, social and/or educational activities and policies or
initiatives of such activities or policies (Paragraph 3 of
Article 6). It was also established that "advertising shall not
be broadcast on the LRT Second Programme, while cultural, social
and educational information is provided without taking payment
for its broadcasting" (Paragraph 7 of Article 6).
It needs to be specially emphasised that the Law on the
Lithuanian National Radio and Television (wording of 22 December
2005) no longer contained the provision (which used to be in
Paragraph 4 (wording of 29 June 2000) of Article 6 of the Law on
the Lithuanian National Radio and Television) that with the
increase of LRT receipts obtained from the state levy,
advertising time shall be gradually and proportionately reduced
to 10 percent of a day's broadcast time, per decision of the
Council. This is to be linked with the abandoning of the
intention (which is discussed in this Constitutional Court
ruling) to establish, by means of a law, the state levy (the so-
called subscription fee) for the services rendered to the public
by the LRT. Alongside, it needs to be noted that it was
established in Paragraph 5 of Article 6 of the Law on the
Lithuanian National Radio and Television (wording of 22 December
2005) that with the increase of LRT financing from the State
Budget, advertising time shall be gradually and proportionately
reduced to 10 percent of a day's broadcast time, per decision of
the Council. Thus, the new legal regulation consolidating the
reduction of advertising time in LRT programmes is related to the
increase of LRT financing from the State Budget. Alongside, this
implies the intention of the legislator to increase allocations
from the State Budget to the LRT.
7.7. As mentioned, one of the guarantees for the LRT
established in the Law on the Lithuanian National Radio and
Television (wording of 29 June 2000 with subsequent amendments)
was the priority right to newly co-ordinated electronic
communication channels (radio frequencies), state radio and
television broadcasting installations with state of the art radio
and television technologies, and the right to have 2 television
and 4 radio programmes (Paragraph 5 of Article 5 (wording of 29
June 2000)); later this provision was amended and it was set
forth as follows: "The LRT shall have the right to broadcast 2
television and 4 radio programmes. The rights necessary for
implementing this provision shall be granted to the LRT under
priority procedure by the Lithuanian Radio and Television
Commission under procedure established in the Law on Provision of
Information to the Public and the Law on Electronic
Communications."
In the context of the constitutional justice case at issue,
it needs to be noted that if one compares Paragraph 5 (wording of
22 December 2005) of Article 5 of the Law on the Lithuanian
National Radio and Television with Paragraph 5 (wording of 15
April 2004) of Article 5 of the Law on the Lithuanian National
Radio and Television, it becomes obvious that they establish the
same legal regulationthe texts of these paragraphs are not
different from each other in any way.
It was also mentioned that one of the LRT activity
guarantees established in the Law on the Lithuanian National
Radio and Television (wording of 29 June 2000 with subsequent
amendments) was the prohibition to other radio and television
stations to operate through the channels used by LRT without
permission of the LRT Council (Paragraph 10 of Article 5). Such
prohibition was established in Paragraph 12 of Article 5 of the
Law on the Lithuanian National Radio and Television (wording of
22 December 2005) as well.
7.8. The Law on the Lithuanian National Radio and
Television (wording of 22 December 2005) consolidated virtually
the same (though somewhat corrected) LRT governing model as was
established in the Law on the Lithuanian National Radio and
Television (wording of 29 June 2000 with subsequent amendments):
it also attached an especially important role to the LRT Council,
and provided for the functions and powers of the LRT Director
General and the LRT Administrative Commission established for
consideration of issues of LRT economic and financial activity.
7.8. In this context it needs to be noted that the Law on
the Lithuanian National Radio and Television (wording of 22
December 2005) defines the LRT Council not as a "governing body
of the LRT", but as a "body of the LRT" (Paragraph 1 of Article
9), which represents the public interests (Paragraph 2 of Article
9). Under the Law on the Lithuanian National Radio and Television
(wording of 22 December 2005), the LRT Director General is
another body of the LRT (Paragraph 1 of Article 9). This law does
not mention the LRT Administration, as a separate body of the
LRT, at all.
7.8.2. When, in the context of the constitutional justice
case at issue, one compares the overall legal regulation that is
established in Article 10 (wording of 22 December 2005) of the
Law on the Lithuanian National Radio and Television with the
overall legal regulation established in Article 10 (wordings of
29 June 2000 and 15 January 2001) the Law on the Lithuanian
National Radio and Television, it becomes clear that that the
amendments made to the legal regulation of corresponding
relations were not big and not essential, with the exception that
it was established in Paragraph 6 of Article 10 (wording of 22
December 2005) of the Law on the Lithuanian National Radio and
Television that the LRT Council annual report for its activities
must contain "accounting for the income and expenditure estimate
according to the sources of financing specified in Paragraph 1 of
Article 15" (i.e. according to these sources of financing: the
allocations of the State Budget, receipts obtained from sales of
radio and television broadcasts, advertisement, publishing and
from sponsorship and receipts obtained from commercial and
economic activity), that the said "report must contain detailed
data about the number of the sources of financing and the amount
of all income received from other than the rendered public
services', also that "in cases where LRT resources are used to
both public and non-public services, the expenditure must be
distributed in correspondence to the difference between all
expenditure and all non-public expenditure of the enterprise".
7.8.3. In the context of the constitutional justice case at
issue, it needs to be noted that Paragraph 1 of Article 10
(wording of 22 December 2005) of the Law on the Lithuanian
National Radio and Television has consolidated a provision, which
is identical to the former provision of Paragraph 1 (wording of
29 June 2000) of Article 10 of the Law on the Lithuanian National
Radio and Television the compliance of which with the
Constitution is disputed by the group of Members of the Seimas,
the petitioner, i.e. the provision "The Council shall: <
> (3)
establish the number of channels and their use in programme
transmission".
7.8.4. It also needs to be noted that the Law on the
Lithuanian National Radio and Television (wording of 22 December
2005) no longer links the formation of the LRT Administrative
Commission with any conditions, but establishes that the LRT
Administrative Commission shall be formed within 3 months of the
entry into force of the Law on Amending the Law on the Lithuanian
National Radio and Television, which was adopted on 22 December
2005.
7.9. The provisions of Article 15 (wording of 22 December
2005) of the Law on the Lithuanian National Radio and Television
virtually repeat the provisions of Article 15 (wording of 29 June
2000) of the Law on the Lithuanian National Radio and Television,
with the exception that it no longer provides for the possibility
to fund the LRT from the receipts obtained from the state levy
for the services rendered to the public by the LRT (since, as it
was mentioned, one had abandoned the intention to establish a
state levy (the so-called subscription fee) for the services
provided to the public by the LRT) (Paragraph 1), also that the
provision "the funds for LRT programme transmission shall be
allocated from the State Budget, while the sum thereof shall be
indicated on a separate line of the Law on the State Budget" was
corrected and it was established that "the funds allocated from
the State Budget for LRT programme transmission shall be
specified in a separate programme" (Paragraph 3), besides, the
provision "the LRT shall implement commercial, economic and
publishing activity independently" was particularised and it was
established that it does that "under procedure established in
this Law" (Paragraph 2).
It needs to be held that in the aspect that the compliance
of the legal regulation established in Paragraphs 1 and 2 of
Article 15 (wording of 29 June 2000) of the Law on the Lithuanian
National Radio and Television is disputed by the group of Members
of the Seimas, the petitioner, such legal regulation has not been
changed.
8. The Law on the Lithuanian National Radio and Television
(wording of 22 December 2005) was amended and supplemented by the
Republic of Lithuania Law on Amending and Supplementing Article 5
of the Law on the Lithuanian National Radio and Television, which
was adopted by the Seimas on 14 November 2006 and which came into
force on 5 December 2006.
8.1. Paragraph 1 of Article 1 of the Law on Amending and
Supplementing Article 5 of the Law on the Lithuanian National
Radio and Television amended Paragraph 5 of Article 5 (wording of
22 December 2005) of the Law on the Lithuanian National Radio and
Television and set it forth as follows:
"The LRT shall have the right to broadcast 2 television and
4 radio programmes by means of the terrestrial analogue radio
frequencies (channels) <
> provided for in the Strategic Plan for
the Assignment of Radio Frequencies to Broadcasting and
Transmission of Radio and Television Programmes. If broadcasting
and/or relay of programmes does not use the sources of electronic
communications provided for in the Strategic Plan, the number of
programmes broadcast and/or relayed by LRT shall not be limited.
The LRT shall have the right to broadcast the television and
radio programmes (the number of which is established by the
Lithuanian Radio and Television Commission upon proposal of the
Council which is adopted by taking account of the funds allocated
to the LRT in the Republic of Lithuania law on approving the
financial indicators of state and municipal budgets of a
corresponding year) by means of the terrestrial analogue radio
frequencies (channels) provided for in the Strategic Plan. The
rights necessary for implementing these provisions shall be
granted to the LRT under priority procedure by the Lithuanian
Radio and Television Commission under procedure established in
the Law on Provision of Information to the Public and the Law on
Electronic Communications."
If the legal regulation established in Paragraph 5 (wording
of 14 November 2006) of Article 5 of the Law on the Lithuanian
National Radio and Television is compared with that established
in Paragraph 5 (wording of 22 December 2005) of Article 5 of the
Law on the Lithuanian National Radio and Television, it becomes
clear that the same subject, i.e. the Lithuanian Radio and
Television Commission, grants the LRT the corresponding necessary
rights; it does so under procedure by the Lithuanian Radio and
Television Commission under procedure established in the Law on
Provision of Information to the Public and the Law on Electronic
Communications. Thus, in this respect the legal regulation has
not been changed. However, at present the LRT may acquire the
right to broadcast more programmes than under Paragraph 5
(wording of 22 December 2005) of Article 5 of the Law on the
Lithuanian National Radio and Television, because
- it has the right to broadcast 2 television and 4 radio
programmes by means of the terrestrial analogue radio frequencies
(channels) provided for in the Strategic Plan for the Assignment
of Radio Frequencies to Broadcasting and Transmission of Radio
and Television Programmesthe concrete number of these programmes
is established by the Lithuanian Radio and Television Commission
(after it receives a proposal from the LRT Council) by taking
account of the funds allocated to the LRT in the Republic of
Lithuania law on approving the financial indicators of state and
municipal budgets of a corresponding year;
- the number of programmes broadcast and/or relayed by the
LRT is not limited in cases when broadcasting and/or relay of
such programmes does not use the sources of electronic
communications provided for in the Strategic Plan for the
Assignment of Radio Frequencies to Broadcasting and Transmission
of Radio and Television Programmes.
8.2. In addition, Paragraph 2 of Article 1 of the Law on
Amending Article 5 of the Law on the Lithuanian National Radio
and Television supplemented Article 5 (wording of 22 December
2005) of the Law on the Lithuanian National Radio and Television
with Paragraph 13 in which it was established that "the LRT can
broadcast its programmes to foreign states".
III
1. On 2 July 1996 the Seimas adopted the Law on Provision
of Information to the Public which came into force on 26 July
1996.
2. The Law on Provision of Information to the Public
(wording of 2 July 1996) was amended and/or supplemented by the
following: the Republic of Lithuania Law on Supplementing Article
30 of the Law on Provision of Information to the Public, which
was adopted by the Seimas on 22 August 1996; the Republic of
Lithuania Law on Amending Article 29 of the Law on Provision of
Information to the Public, which was adopted by the Seimas on 5
December 1996; the Republic of Lithuania Law on Amending and
Supplementing Article 17 of the Law on Provision of Information
to the Public, which was adopted by the Seimas on 23 January
1997; the Republic of Lithuania Law on Amending Supplementing
Article 25 of the Law on Provision of Information to the Public,
which was adopted by the Seimas on 3 July 1997; the Republic of
Lithuania Law on Amending Article 29 of the Law on Provision of
Information to the Public, which was adopted by the Seimas on 25
September 1997; the Republic of Lithuania Law on Amending Article
25 of the Law on Provision of Information to the Public, which
was adopted by the Seimas on 15 January 1998; the Republic of
Lithuania Law on Amending Article 16 of the Law on Provision of
Information to the Public, which was adopted by the Seimas on 7
July 1999; the Republic of Lithuania Law on Amending Article 29
of the Law on Provision of Information to the Public, which was
adopted by the Seimas on 28 March 2000.
3. On 29 August 2000, the Seimas adopted the Republic of
Lithuania Law on Amending the Law on Provision of Information to
the Public, which came into force on 1 October 2000. Article 1 of
the said law amended the Republic of Lithuania Law on Provision
of Information to the Public (wording of 2 July 1996 with
subsequent amendments and supplements) and set it forth in a new
wording.
4. Article 31 (wording of 29 August 2000) of the Law on
Provision of Information to the Public, the compliance of
Paragraph 4 of which with the Constitution is disputed by the
group of Members of the Seimas, the petitioner, inter alia
established:
"1. Broadcasting and rebroadcasting activities shall be
licensed in Lithuania, with the exception of broadcasting and
rebroadcasting performed by the LRT. Persons who desire to engage
in broadcasting and/or rebroadcasting activities, must obtain a
license from the Lithuanian Radio and Television Commission,
except in instances when channels (radio frequencies) shall not
be used for this activity. At the end of each quarter of the
calendar year, the Communications Regulatory Authority shall
provide information to the Commission regarding newly-co-
ordinated radio frequencies (channels) for programme broadcasting
and/or rebroadcasting. The Commission shall announce tenders for
channel (radio frequency) use in broadcasting or rebroadcasting,
with the right granted to the winner of the tender to use the
channel (radio frequency) to broadcast or rebroadcast programmes
and/or to use the transmission service of a third party. The
Communications Regulatory Authority shall assign a channel (radio
frequency) to programme broadcasting and/or rebroadcasting with a
right to establish, equip and use radio or television stations
and/or communications network only to persons who have obtained a
Commission license. <
>
2. The Communications Regulatory Authority shall have a
right to change the radio frequency assigned to a license holder,
only in instances when it shall be required by international
obligations of the Republic of Lithuania or strategic plan <
>
changes. Upon closure of radio frequency band, a different radio
frequency shall not be assigned to the license holder, if he has
the right to broadcast the programme through another radio
frequency band.
3. Channels (radio frequencies) shall be the property of
the Republic of Lithuania and may not be privatised.
4. LRT activities shall not be licensed. The Communications
Regulatory Authority shall assign channels (radio frequencies)
for broadcasting LRT programmes, without a tender, based upon the
strategic plan, upon co-ordinating the decision with the
Commission.
5. The procedure of issuing licenses shall be established
by this and other laws, the Commission's regulations and
Licensing Regulations of Broadcasting and Rebroadcasting, which
shall be approved by the Commission.
6. In issuing licenses, priority shall be accorded to
broadcasters who assume the responsibility to produce broadcasts
of original creativity of a cultural, informational and
educational type, to ensure correct and unbiased presentation of
information, to respect personal dignity and a right to privacy,
to observe the requirements set forth by laws and other legal
acts, by which one strives to protect the physical, mental and
moral development of minors from a possible negative effect of
the mass media, and also for the broadcasters within whose
reception zone, other stations are not yet broadcasting.
7. The following broadcasting licenses shall be issued by
way of tender:
1) to broadcast radio programmes with the right to
establish, equip and use radio stations;
2) to broadcast radio programmes with the right to use
transmission services provided by a third party;
3) to broadcast television programmes with the right to
establish, equip and
use television stations;
4) to broadcast television programmes with a right to use
transmission services supplied by a third party;
5) for radio programmes to broadcast and rebroadcast by
wire radio networks programmes which they produced by wire radio
networks, with a right to establish, equip and use radio stations
or use transmission services supplied by a third country;
6) to rebroadcast and broadcast radio and television
programmes produced by themselves, through the cable television
or MMTV networks with the right to establish, equip and use the
cable television network or use transmission services provided by
a third country.
7) to rebroadcast radio and television programmes through
cable television or MMTV networks with the right to establish,
equip and use a cable television or MMTV network or use
transmission services supplied by a third party;
8. The Commission may issue the licenses indicated in
Paragraph 7, without a tender, in the following instances:
1) when unlimited resources of radio frequencies stipulated
in the strategy plan are being used;
2) for radio, television station of up to 1 W power for a
period not to exceed one year;
3) up to 20 W power radio, television station for
broadcasts of educational and cultural programmes of science and
teaching institutions, for a period not to exceed 3 years;
4) for owners of general reception networks, who implement
frequency conversion and signal modulation and connect up to 300
apartments (properties), for a period not to exceed 3 years. The
owners of community networks which connect to fewer than 300
apartments (properties), must obtain licenses in accordance with
the procedure established by the Law on Communications.
9. The Commission shall issue licenses not to exceed a term
of 10 years, to national scale and cable television broadcasters
and MMTV operators, not to exceed 5 years to regional scale
broadcasters and not to exceed 3 years to local broadcasters. <
>
12. Upon expiration of the validity of a license, the
Commission shall extend through a procedure without a tender for
the same duration of time, the validity of the license per
request of the person holding the license, provided that the
broadcaster has not violated Republic of Lithuania laws, which
regulate broadcasting or rebroadcasting activities, license
conditions and Commission resolutions. <
>"
5. The Law on Provision of Information to the Public
(wording of 29 April 2000) was amended and/or supplemented by the
following: the Republic of Lithuania Law on Amending and
Supplementing Articles 2, 4, 18, 26, 28, 37, 38, 39, and 49 of
the Law on Provision of Information to the Public and on Amending
and Supplementing Article 3 of the Law on Amending the Law on the
Provision of Information to the Public, which was adopted by the
Seimas on 21 November 2000; the Republic of Lithuania Law on
Amending and Supplementing Articles 27 and 39 of the Law on
Provision of Information to the Public, which was adopted by the
Seimas on 21 December 2000; the Republic of Lithuania Law on
Amending Article 37 of the Law on Provision of Information to the
Public, which was adopted by the Seimas on 18 October 2001; the
Republic of Lithuania Law on Amending Article 34 of the Law on
Provision of Information to the Public, which was adopted by the
Seimas on 13 June 2002; the Republic of Lithuania Law on Amending
Article 43 of the Law on Provision of Information to the Public,
which was adopted by the Seimas on 20 June 2002; the Republic of
Lithuania Law on Amending Article 14 of the Law on Provision of
Information to the Public, which was adopted by the Seimas on 3
April 2003; the Republic of Lithuania Law on Amending Articles 2
and 28 of the Law on Provision of Information to the Public,
which was adopted by the Seimas on 25 November 2003; the Republic
of Lithuania Law on Amending and Supplementing Articles 1, 2, 23,
24, 29, 31, 32, 33, 35, 38, 39, 47, 48, 49, 51, 53 of Law on the
Provision of Information to the Public and Recognition of
Articles 25 and 41 Thereof as No Longer Valid and Supplementing
Article 56 and an Annex Thereto, which was adopted by the Seimas
on 27 April 2004; the Republic of Lithuania Law on Amending
Article 48 of the Law on Provision of Information to the Public,
which was adopted by the Seimas on 15 July 2004.
5.1. Article 8 of the Law on Amending and Supplementing
Articles 1, 2, 23, 24, 29, 31, 32, 33, 35, 38, 39, 47, 48, 49,
51, 53 of Law on the Provision of Information to the Public and
Recognition of Articles 25 and 41 Thereof as No Longer Valid and
Supplementing Article 56 and an Annex Thereto amended and newly
set forth Article 31 (wording of 29 August 2000) of the Law on
the Provision of Information to the Public, the compliance of
Paragraph 4 of which with the Constitution is disputed by the
group of Member of the Seimas, the petitioner.
It was inter alia established in Article 31 (wording of 27
April 2004) of the Law on the Provision of Information to the
Public:
"1. Broadcasting and re-broadcasting activities in the
Republic of Lithuania, except the broadcasting and re-
broadcasting activity carried out by the LRT, shall be licensed.
Persons who wish to engage in broadcasting and/or re-broadcasting
activities must obtain a broadcasting/re-broadcasting licence.
Broadcasting and re-broadcasting licences granting the right to
establish and operate their own electronic communications
networks, the right to use their own electronic communications
networks for the broadcasting and/or re-broadcasting of
programmes, or the right to use the transmission services
provided by a third party shall be issued by the Commission.
2. The Communications Regulatory Authority shall submit to
the Commission information about coordinated radio frequencies
(channels) which, according to the Strategic Plan for the
Assignment of Radio Frequencies to Broadcasting and Transmission
of Radio and Television Programmes, are intended to be assigned
to broadcasters and/or re-broadcasters possessing Commission-
issued licences granting the right to establish and operate their
own electronic communications networks; this information shall be
submitted together with information about the basic conditions of
operating electronic communications networks required to issue
broadcasting and/or re-broadcasting licences. After having
received the aforementioned information, the Lithuanian Radio and
Television Commission shall issue broadcasting and/or re-
broadcasting licences in accordance with the procedure and terms
established by this Law and the Rules for Licensing Broadcasting
and Re-broadcasting Activities.
3. The Communications Regulatory Authority, having assigned
radio frequencies (channels) to transmission providers, shall
submit to the Commission information about these radio
frequencies (channels) together with information about the basic
conditions of operating electronic communications networks
required to issue broadcasting and/or re-broadcasting licences.
After having received the abovementioned information, the
Commission shall issue broadcasting and/or re-broadcasting
licences in accordance with the procedure and terms established
by this Law and the Rules for Licensing Broadcasting and Re-
broadcasting Activities.
4. The basic conditions of operating electronic
communications networks specified together with radio frequencies
(channels) in a broadcasting or re-broadcasting licence and
presented by the Communications Regulatory Authority to the
Commission, save the licences for broadcasting and/or
rebroadcasting of programmes via cable television or wire radio
networks, must comply with the basic operating conditions of
radio frequencies (channels) and electronic communications
networks, intended for broadcasting and/or re-broadcasting radio
and television programmes. The actual transmission provider shall
be additionally specified in a Commission-issued broadcasting
and/or re-broadcasting licence granting the right to use the
transmission services provided by a third party <
>.
6. Radio frequencies (channels) shall be the property of
the Republic of Lithuania and may not be privatised.
7. The LRT activities shall not be licensed. In order to
ensure the broadcasting of LRT programmes, the Lithuanian Radio
and Television Commission shall, on a non-tender and priority
basis, in accordance with the procedure and conditions set out in
this Law, issue authorisations which grant the rights which are
analogous to those granted by licences referred to in Paragraph 1
of this Article.
8. Types of licences, the conditions and procedure for
issuing them shall be established by this Law and the Rules for
Licensing Broadcasting and Re-broadcasting Activities. The rules
shall be approved by the Commission.
9. When issuing licences, priority shall be given to
persons who undertake to produce original cultural, informational
and educational broadcasts, ensure accurate and unbiased
presentation of information, respect human dignity and right to
privacy, protect minors from a possible detrimental effect of
public information on their physical, mental and moral
development, and also to persons who have undertaken to broadcast
programmes that are not as yet broadcast by other broadcasters
within the designated reception zone.
10. Broadcasting and re-broadcasting licences shall be
issued by tender procedure, except for cases specified in
Paragraph 11 of this Article.
11. The Commission shall issue broadcasting and re-
broadcasting licences on a non-tender basis in the following
cases:
1) for broadcasting and/or re-broadcasting programmes by
electronic communications networks by a terrestrial television or
radio station with a power level ranging up to 1 W;
2) to scientific or educational institutions for
broadcasting educational and cultural programmes by a terrestrial
television or radio station with a power level ranging up to 20
W;
3) for broadcasting and/or re-broadcasting programmes by
cable television or wire radio networks;
4) for broadcasting and/or re-broadcasting programmes by an
artificial earth satellite (satellites);
5) to organisers of public events for broadcasting of
programmes of the events which take place not longer than 14 days
by a terrestrial television or radio station with a power level
ranging up to 20 W;
6) in other cases provided for in the Strategic Plan for
the Assignment of Radio Frequencies to Broadcasting and
Transmission of Radio and Television Programmes. <
>
17. <
> In the event that a licence holder reorganises its
activity, the successor (successors) to its rights and
obligations may be issued, by a decision of the Commission, a new
licence (licences) on a non-tender basis to pursue licensed
activity under the same conditions if the licence holder submits
to the Commission prior to reorganisation a relevant request and
reorganisation conditions and if there were no violations of the
Republic of Lithuania laws governing broadcasting or re-
broadcasting activities, licence terms and conditions, and
Commission decisions prior to reorganisation as well as in the
course of reorganisation. <
>"
5.2. It needs to be noted that the provision of Paragraph 4
(wording of 29 August 2000) of Article 31 of the Law on the
Provision of Information to the Public that the LRT activity
shall not be licensed was repeated in Paragraph 7 (wording of 27
April 2004) of Article 31 of the Law on the Provision of
Information to the Public.
On the other hand, Article 31 (wording of 27 April 2004) of
the Law on the Provision of Information to the Public no longer
contains the provision "The Communications Regulatory Authority
shall assign channels (radio frequencies) for broadcasting LRT
programmes, without a tender, based upon the strategic plan, upon
co-ordinating the decision with the Commission" which used to be
in Paragraph 4 of Article 31 (wording of 29 August 2000) of the
Law on the Provision of Information to the Public, the compliance
of which with the Constitution is disputed by the group of
Members of the Seimas, the petitioner, to the extent that it
provides that channels (radio frequencies) for broadcasting LRT
programmes are assigned without a tender. No such provision was
contained in other articles of the Law on the Provision of
Information to the Public (wording of 29 August 2000 with
subsequent amendments and supplements made by the Law on Amending
and Supplementing Articles 1, 2, 23, 24, 29, 31, 32, 33, 35, 38,
39, 47, 48, 49, 51, 53 of Law on the Provision of Information to
the Public and Recognition of Articles 25 and 41 Thereof as No
Longer Valid and Supplementing Article 56 and an Annex Thereto),
either.
Alongside, it needs to be noted that instead of the
provision "The Communications Regulatory Authority shall assign
channels (radio frequencies) for broadcasting LRT programmes,
without a tender, based upon the strategic plan, upon co-
ordinating the decision with the Commission" which used to be in
Paragraph 4 of Article 31 (wording of 29 August 2000) of the Law
on the Provision of Information to the Public, the compliance of
which with the Constitution is disputed by the group of Members
of the Seimas, the petitioner, to the extent that it provides
that channels (radio frequencies) for broadcasting LRT programmes
are assigned without a tender, Paragraph 7 of Article 31 (wording
of 27 April 2004) of the Law on the Provision of Information to
the Public established the provision "In order to ensure the
broadcasting of LRT programmes, the Lithuanian Radio and
Television Commission shall, on a non-tender and priority basis,
in accordance with the procedure and conditions set out in this
Law, issue authorisations which grant the rights equivalent to
those granted by licences referred to in Paragraph 1 of this
Article".
It needs to be mentioned that, under Paragraph 4 of Article
31 (wording of 29 August 2000) of the Law on Provision of
Information to the Public, newly coordinated electronic
communications channels (radio frequencies) for broadcasting LRT
programmes had to be assigned on the basis of the Strategic Plan
for the Assignment of Radio Frequencies to Broadcasting and
Transmission of Radio and Television Programmes. Meanwhile,
Paragraph 7 of Article 31 (wording of 27 April 2004) of the Law
on Provision of Information to the Public does not contain any
reference to the Strategic Plan for the Assignment of Radio
Frequencies to Broadcasting and Transmission of Radio and
Television Programmes; under the Law on Electronic
Communications, the powers to assign radio frequencies (channels)
to broadcasters and/or re-broadcasters, who possess the licences
issued by the Lithuanian Radio and Television Commission, for
broadcasting radio and television programmes, are established to
the Communications Regulatory Authority; it must do so while
following the Strategic Plan for the Assignment of Radio
Frequencies to Broadcasting and Transmission of Radio and
Television Programmes (Paragraphs 1, 2, 4, and 10 of Article 49).
Thus, although the two aforesaid provisions, i.e. the
provision "The Communications Regulatory Authority shall assign
channels (radio frequencies) for broadcasting LRT programmes,
without a tender, based upon the strategic plan, upon co-
ordinating the decision with the Commission" of Paragraph 4 of
Article 31 (wording of 29 August 2000) of the Law on Provision of
Information to the Public and the provision "In order to ensure
the broadcasting of LRT programmes, the Lithuanian Radio and
Television Commission shall, on a non-tender and priority basis,
in accordance with the procedure and conditions set out in this
Law, issue authorisations which grant the rights equivalent to
those granted by licences referred to in Paragraph 1 of this
Article" of Paragraph 7 of Article 31 (wording of 27 April 2004)
of the Law on Provision of Information to the Public, are not
identical, one is to note that the specified provision of
Paragraph 7 of Article 31 (wording of 27 April 2004) of the Law
on Provision of Information to the Public also implies (though,
indirectly) the priority right of the LRT to newly coordinated
electronic communications channels (radio frequencies).
6. On 11 July 2006, the Seimas adopted the Republic of
Lithuania Law on Amending the Law on Provision of Information to
the Public, which came into force on 1 September 2006. Article 1
of this law amended the Republic of Lithuania Law on Provision of
Information to the Public (wording of 29 August 2000 with
subsequent amendments and supplements) and set it forth in a new
wording.
6.1. Article 31 (wording of 11 July 2006) of the Law on
Provision of Information to the Public inter alia provides:
"1. Broadcasting and re-broadcasting activities in the
Republic of Lithuania, except for the broadcasting of radio
programmes though electronic communications networks the main
purpose of which is not programme broadcasting and/or re-
broadcasting, as well as the broadcasting carried out by natural
persons for non-commercial purposes through such networks and the
broadcasting and re-broadcasting activity carried out by the LRT,
shall be licensed. Persons who wish to engage in broadcasting
and/or re-broadcasting activities must obtain a broadcasting/re-
broadcasting licence. Broadcasting and re-broadcasting licences
granting the right to establish and operate their own electronic
communications networks, the right to use their own electronic
communications networks for the broadcasting and/or re-
broadcasting of programmes, or the right to use the transmission
services provided by a third party shall be issued by the
Commission.
2. The Communications Regulatory Authority shall submit to
the Commission information about coordinated radio frequencies
(channels) which, according to the Strategic Plan for the
Assignment of Radio Frequencies to Broadcasting and Transmission
of Radio and Television Programmes, are intended to be assigned
to broadcasters and/or re-broadcasters possessing Commission-
issued licences granting the right to establish and operate their
own electronic communications networks; this information shall be
submitted together with information about the basic conditions of
operating electronic communications networks required to issue
broadcasting and/or re-broadcasting licences. After having
received the aforementioned information, the Commission shall
issue broadcasting and/or re-broadcasting licences in accordance
with the procedure and terms established by this Law and the
Rules for Licensing Broadcasting and Re-broadcasting Activities.
3. The Communications Regulatory Authority, having assigned
radio frequencies (channels) to transmission providers, shall
submit to the Commission information about these radio
frequencies (channels) together with information about the basic
conditions of operating electronic communications networks
required to issue broadcasting and/or re-broadcasting licences.
After having received the abovementioned information, the
Commission shall issue broadcasting and/or re-broadcasting
licences in accordance with the procedure and terms established
by this Law and the Rules for Licensing Broadcasting and Re-
broadcasting Activities.
4. The basic conditions of operating electronic
communications networks specified together with radio frequencies
(channels) in a broadcasting or re-broadcasting licence and
presented by the Communications Regulatory Authority to the
Commission, except for the cases when radio frequencies
(channels), provided for in the Strategic Plan for the Assignment
of Radio Frequencies to Broadcasting and Transmission of Radio
and Television Programmes, are not used for the broadcasting
and/or re-broadcasting of programmes, must comply with the basic
operating conditions of radio frequencies (channels) and
electronic communications networks, intended for broadcasting
and/or re-broadcasting radio and television programmes. The
actual transmission provider shall be additionally specified in a
Commission-issued broadcasting and/or re-broadcasting licence
granting the right to use the transmission services provided by a
third party. <
>
6. Radio frequencies (channels) shall be the property of
the Republic of Lithuania and may not be privatised.
7. The LRT activities shall not be licensed. In order to
ensure the broadcasting of LRT programmes, the Commission shall,
on a non-tender and priority basis, in accordance with the
provisions and conditions of this Law, issue authorisations which
grant the rights equivalent to those granted by licences referred
to in Paragraph 1 of this Article.
8. Types of licences, the conditions and procedure for
issuing and changing them shall be established by this Law and
the Rules for Licensing Broadcasting and Re-broadcasting
Activities. The rules shall be approved by the Commission.
9. When issuing licences, priority shall be given to
persons who undertake to produce original cultural, informational
and educational broadcasts, ensure accurate and unbiased
presentation of information, respect human dignity and right to
privacy, protect minors from public information which might have
a detrimental effect on their physical, mental and moral
development, and also to persons who have undertaken to broadcast
programmes that are not as yet broadcast by other broadcasters
within the designated reception zone.
10. Broadcasting and re-broadcasting licences shall be
issued by tender procedure, except for cases specified in
paragraph 11 of this Article.
11. The Commission shall issue broadcasting and re-
broadcasting licences on a non-tender basis in the following
cases:
1) to scientific or educational institutions for
broadcasting educational and cultural programmes by a terrestrial
television or radio station with a power level ranging up to 20
W;
2) for broadcasting and/or re-broadcasting programmes by
cable television or wire radio networks;
3) for broadcasting and/or re-broadcasting programmes by
electronic communications networks the main purpose of which is
not the broadcasting and/or re-broadcasting of programmes;
4) for broadcasting and/or re-broadcasting programmes by an
artificial earth satellite (satellites);
5) in other cases provided for in the Strategic Plan for
the Assignment of Radio Frequencies to Broadcasting and
Transmission of Radio and Television Programmes. <
>
17. <
> In the event that a licence holder reorganises its
activity, the successor (successors) to its rights and
obligations may be issued, by a decision of the Commission, a new
licence (licences) on a non-tender basis to pursue licensed
activity under the same conditions if the licence holder submits
to the Commission prior to reorganisation a relevant request and
reorganisation conditions and if there were no violations of the
Republic of Lithuania laws governing broadcasting or re-
broadcasting activities, licence conditions, and Commission
decisions prior to reorganisation as well as in the course of
reorganisation. <
>"
6.2. In the context of the constitutional justice case at
issue, one is to note that, regardless of certain amendment to
the text, the legal regulation consolidated in Paragraph 7 of
Article 31 (wording of 11 July 2006) of the Law on Provision of
Information to the Public, wherein it is established that "The
LRT activities shall not be licensed" and that "In order to
ensure the broadcasting of LRT programmes, the Commission shall,
on a non-tender and priority basis, in accordance with the
procedure and conditions set out in this Law, issue
authorisations which grant the rights equivalent to those granted
by licences referred to in Paragraph 1 of this Article", is
virtually identical to the legal regulation which used to be in
Paragraph 7 of Article 31 (wording of 27 April 2004) of the Law
on the Provision of Information to the Public, wherein it was
established that "The LRT activities shall not be licensed" and
that "In order to ensure the broadcasting of LRT programmes, the
Lithuanian Radio and Television Commission shall, on a non-tender
and priority basis, in accordance with the procedure and
conditions set out in this Law, issue authorisations which grant
the rights which are analogous to those granted by licences
referred to in Paragraph 1 of this Article".
7. It needs to be noted that the group of Members of the
Seimas, the petitioner, does not does not dispute the powers of
the Communications Regulatory Authority and the Lithuanian Radio
and Television Commission to assign, on a non-tender basis,
channels (radio frequencies) for broadcasting LRT programmes,
which are established in Paragraph 4 of Article 31 (wording of 29
August 2000) of the Law on Provision of Information to the
Public: as mentioned, the petitioner disputes only whether
Paragraph 4 of Article 31 (wording of 29 August 2000) of the Law
on Provision of Information to the Public to the extent that it
provides that channels (radio frequencies) for broadcasting
programmes of the Lithuanian National Radio and Television are
assigned without a tender, is not in conflict with the
Constitution.
7.1. The fact that the other legal regulation established
in Paragraph 4 of Article 31 (wording of 29 August 2000) of the
Law on Provision of Information to the Public is not a matter of
investigation in this constitutional justice case at issue is
also mutatis mutandis applicable to the corresponding legal
regulation (i.e. the legal regulation of later wordings, which
was established in the Law on Provision of Information to the
Public), which was established after amendments and/or
supplements had been made to this law (articles (paragraphs
thereof)).
7.2. Neither are the relations related to the fact that,
under the Law on Provision of Information to the Public (wording
of 29 August 2000 with subsequent amendments and supplements and
the wording of 11 July 2006), the activity of the Lithuanian
Radio and Television Commission, which is defined in this law as
"an independent institution accountable to the Seimas, which
regulates and supervises the activities of commercial radio and
television broadcasters" (Paragraph 1 (wording of 29 August 2000)
of Article 48), or as "an independent institution accountable to
the Seimas, which regulates and controls the activities of radio
and television broadcasters and re-broadcasters falling under the
jurisdiction of the Republic of Lithuania" (Paragraph 1 (wording
of 27 April 2004) of Article 48, Paragraph 1 (wording of 11 July
2006) of Article 47), whose majority members were and are
representatives delegated by public (non-governmental)
organisations appointed for the terms of powers of the governing
bodies of the corresponding organisations, was and is funded
inter alia from the funds which are obtained by the broadcasters
(save the LRT) (which are "supervised" and "controlled" by this
commission) from advertising and other commercial activity and
which are transferred to the account of the Lithuanian Radio and
Television Commission (Paragraph 11 (wording of 29 August 2000)
of Article 48, Paragraph 15 (wording of 27 April 2004) of Article
48, Paragraph 15 (wording of 11 July 2006) of Article 47), is not
to be attributed to the matter of the investigation in the
constitutional justice case at issue.
IV
1. In the context of the constitutional justice case at
issue, it needs to be mentioned the also European legal acts,
inter alia European Union legal acts, regulate the relations
linked with the public broadcaster (also in the aspects specified
by the group of Members of the Seimas, the petitioner, i.e.
regarding the functions of the public broadcaster and assignment
of channels (radio frequencies), financing of television
programmes' broadcasting, broadcasting of advertising on
television). The EU law provisions concerning competition and
state support (including financial support) to enterprises are
also important.
1.1. In this context it needs to be noted that, under
Paragraph 3 of Article 138 of the Constitution, international
treaties ratified by the Seimas of the Republic of Lithuania
shall be a constituent part of the legal system of the Republic
of Lithuania.
With respect to European Union law, the provisions "The
norms of the European Union law shall be a constituent part of
the legal system of the Republic of Lithuania" and "Where it
concerns the founding Treaties of the European Union, the norms
of the European Union law shall be applied directly, while in the
event of collision of legal norms, they shall have supremacy over
the laws and other legal acts of the Republic of Lithuania" of
Paragraph 2 of the Constitutional Act of the Republic of
Lithuania "On Membership of the Republic of Lithuania in the
European Union" (which is a constituent part of the Constitution)
establish expressis verbis the collision rule, which consolidates
the priority of application of European Union legal acts in the
cases where the provisions of the European Union arising from the
founding Treaties of the European Union compete with the legal
regulation established in Lithuanian national legal acts
(regardless of what their legal power is), save the Constitution
itself (Constitutional Court ruling of 14 March 2006). The
constitution also consolidates the principle that in cases where
a national legal act (save the Constitution itself, it goes
without saying) establishes a legal regulation conflicting with
the legal regulation set down in an international treaty, the
international treaty is to be applied.
1.2. The radio and television market (the market of the
services provided by them) is undergoing fast changes due to
technological development. This also determines the dynamism of
the legal acts regulating corresponding social relations. In its
ruling of 19 September 2005, the Constitutional Court held that
due to the fact that "electronic communications and
telecommunications are undergoing fast development", "the
opportunities to seek, obtain and disseminate information by
making use of electronic information technologies, inter alia the
internet, are constantly expanding", "therefore, it is necessary
that legislation not get behind with the progress of information
technologies and with changes in respective social relations
which are determined by such progress".
It needs to be noted that the dynamism of legal regulation
related with fast development of radio and television is
characteristic of EU law, as well.
1.3. In its rulings, the Constitutional Court has held more
than once that the jurisprudence of the European Court of Human
Rights (hereinafter also referred to as the ECHR) as a source of
construction of law is also important to the construction and
application of Lithuanian law. The same can be said as regards
the jurisprudence of the Court of Justice of the European
Communities and the Court of First Instance of the European
Communities.
2. On 9 May 1989, the Council of Europe adopted the
European Convention on Transfrontier Television. By Article 1 of
the Republic of Lithuania Law "On Ratifying the European
Convention on Transfrontier Television and the Amendments
Protocol to this Convention" (together with the Protocol amending
the European Convention on Transfrontier Television adopted on 9
September 1998) adopted on 17 February 2000, the Seimas ratified
this convention. In Lithuania, the European Convention on
Transfrontier Television became effective on 1 January 2001. This
convention inter alia establishes the requirements which must be
observed when advertising is broadcast on television, including
the programmes and broadcasts of the national broadcaster. The
purpose of the European Convention on Transfrontier Television,
which inter alia regulates the conditions of advertising on
television, is to facilitate, among the countries signatories
thereto, the transfrontier transmission and the retransmission of
television programme services.
3. On 3 October 1989, the Council of European Communities
adopted Directive 89/552/EEC on the coordination of certain
provisions laid down by law, regulation or administrative action
in Member States concerning the pursuit of television
broadcasting activities. It came into force on 16 October 1989.
This directive establishes the rules of broadcasting of
television programmes in Member States, inter alia also that
Member States, whilst observing European Community law, may as
regards programmes of television broadcasters under their
jurisdiction, lay down stricter rules in particular on the basis
of language criteria.
On 30 June 1997, the European Parliament and the Council
adopted Directive 97/36/EC amending Council Directive 89/552/EEC
on the coordination of certain provisions laid down by law,
regulation or administrative action in Member States concerning
the pursuit of television broadcasting activities. This directive
came into force on 30 July 1997.
4. On 28 November 2005, the Commission of the European
Communities adopted Directive 2005/81/EC amending Directive 80/
723/EEC on the transparency of financial relations between Member
States and public undertakings as well as on financial
transparency within certain undertakings. It came into force on
18 December 2005. This directive obligates the undertakings
render services of general economic interest to maintain separate
accounts, providing they enjoy state support.
5. On 7 March 2002, the European Parliament and the Council
adopted Directive 2002/20/EC on the authorisation of electronic
communications networks and services (hereinafter referred to as
the Authorisation Directive). It came into force on 24 April
2002. Article 5 of this directive regulates the granting of
rights to use radio frequencies.
6. On 7 March 2002, the European Parliament and the Council
adopted Directive 2002/21/EC on a common regulatory framework for
electronic communications networks and services. It came into
force on 24 April 2002. Article 9 of this directive provides that
Member States shall ensure the effective management of radio
frequencies for electronic communication services in their
territory and that they shall ensure that the allocation and
assignment of such radio frequencies by national regulatory
authorities are based on objective, transparent, non-
discriminatory and proportionate criteria.
7. On 7 March 2002, the European Parliament and the Council
adopted Directive 2002/22/EC on universal service and users'
rights relating to electronic communications networks and
services. It came into force on 24 April 2002. Article 31 of this
directive establishes an obligation to entities-providers of
transmission services, which use radio frequencies, to broadcast
programmes important to society, i.e. to allow to make use of the
services of the direct user of the frequency (broadcaster).
Paragraph 1 of the aforesaid article provides: "Member
States may impose reasonable 'must carry' obligations, for the
transmission of specified radio and television broadcast channels
and services, on undertakings under their jurisdiction providing
electronic communications networks used for the distribution of
radio or television broadcasts to the public where a significant
number of end-users of such networks use them as their principal
means to receive radio and television broadcasts. Such
obligations shall only be imposed where they are necessary to
meet clearly defined general interest objectives and shall be
proportionate and transparent. The obligations shall be subject
to periodical review."
8. Article 87 of the Consolidated Version of the Treaty
Establishing the European Community establishes the provision
that aid granted by the state is not incompatible with EU law;
only such state aid is prohibited, which distorts or threatens to
distort competition.
Paragraph 1 of Article 87 of the same treaty provides:
"Save as otherwise provided in this Treaty, any aid granted by a
Member State or through State resources in any form whatsoever
which distorts or threatens to distort competition by favouring
certain undertakings or the production of certain goods shall, in
so far as it affects trade between Member States, be incompatible
with the common market." It is clear from the Treaty Establishing
the European Community (and protocols thereto) that state
financing by which operation of an enterprise or production of
certain goods is maintained can be justifiable, if it is
necessary in order to render a service of the general economic
interest.
Paragraph 2 of Article 86 of the same treaty provides:
"Undertakings entrusted with the operation of services of general
economic interest or having the character of a revenue-producing
monopoly shall be subject to the rules contained in this Treaty,
in particular to the rules on competition, in so far as the
application of such rules does not obstruct the performance, in
law or in fact, of the particular tasks assigned to them. The
development of trade must not be affected to such an extent as
would be contrary to the interests of the Community."
9. The Protocol on the System of Public Broadcasting in the
Member States annexed to the Treaty on European Union, the
Treaties establishing the European Communities by the Treaty of
Amsterdam amending the Treaty on European Union, the Treaties
establishing the European Communities and certain related acts,
which was signed on 2 October 1997, points out that the system of
public broadcasting in the Member States is directly related to
the democratic, social and cultural needs of each society and to
the need to preserve media pluralism and that the provisions of
the Treaty establishing the European Community shall be without
prejudice to the competence of Member States to provide for the
financing of public service broadcasting and insofar as such
financing is granted to broadcasting organisations for the
fulfilment of the public service remit as conferred, defined and
organised by each Member State, and insofar as such financing
does not affect trading conditions and competition in the
Community to an extent which would be contrary to the common
interest, while the realisation of the remit of that public
service shall be taken into account.
10. On 24 July 2003, the Court of Justice of the European
Communities adopted a judgement in Case No. C-280/00 Altmark
Trans GmbH and Regierungspräsidium Magdeburg v.
Nahverkehrsgesellschaft Altmark GmbH and Oberbundesanwalt beim
Bundesverwaltungsgericht (arr?t de la Cour Altmark Trans GmbH et
Regierungspräsidium Magdeburg contre Nahverkehrsgesellschaft
Altmark GmbH, en présence de Oberbundesanwalt beim
Bundesverwaltungsgericht du 24 juillet 2003, affaire C-280/00,
Recueil de jurisprudence, 2003, p. I-07747). It was held therein
that the state aid for the services provided by the recipient
undertakings in order to discharge public services defined in
Article 86 of the Treaty Establishing the European Community is
not to be assessed as the state aid under Article 87 of this
treaty, providing inter alia the following conditions are met:
the recipient undertaking must actually have public service
obligations to discharge, and the obligations must be clearly
defined; the parameters on the basis of which the compensation is
calculated must be established in advance in an objective and
transparent manner, to avoid it conferring an economic advantage
which may favour the recipient undertaking over competing
undertakings; the compensation cannot exceed what is necessary to
cover all or part of the costs incurred in the discharge of
public service obligations, taking into account the relevant
receipts and a reasonable profit for discharging those
obligations; the level of compensation needed must be determined
on the basis of an analysis of the costs which a typical
undertaking, well run and adequately provided with means of
transport so as to be able to meet the necessary public service
requirements, would have incurred in discharging those
obligations, taking into account the relevant receipts and a
reasonable profit for discharging the obligations.
11. On 10 May 2000, the Court of First Instance of the
European Communities adopted a judgement in Case No. T-46/97 SIC-
Sociedade Independente de Comunica??o SA v. Commission of the
European Communities (arr?t du Tribunal de premi?re instance
(premi?re chambre élargie) SIC-Sociedade Independente de
Comunica??o SA contre Commission des Communautés européennes du
10 mai 2000, affaire T-46/97, Recueil de jurisprudence, 2000, p.
II-02125). It was held therein that in order to determine whether
a state measure constitutes aid, therefore, it is necessary to
establish whether the recipient undertaking receives an economic
advantage which it would not have obtained under normal market
conditions. In the situation considered in the said case, the
financial aid to the Portuguese radio and television had to
ensure that this broadcaster, unlike others, would discharge a
public function.
12. On 20 October 1997, the ECHR adopted a judgement in the
case Radio ABC v. Austria (Cour eur. D. H., arr?t Radio ABC c.
Autriche du 20 octobre 1997, Recueil des arr?ts et décisions
1997-VI). It was held therein that in their territory states can
regulate broadcasting, especially technical aspects of
broadcasting, by licences; the issuance or refusal of issuance of
licences may depend on the circumstances related with the type
and purposes of the would-be station, its possible audience on
national, regional and local levels, the needs of particular
audience and the rights and obligations arising from
international law. The same doctrine was set forth in the
judgement which was adopted by the ECHR on 21 September 2000 in
the case Tele 1 Privatfernsehgesellschaft mbH v. Austria (Cour
eur. D. H., arr?t Tele 1 Privatfernsehgesellschaft mbH c.
Autriche du 21 septembre 2000, N? 32240/96P). In this case in the
situation under consideration the state, by not issuing a legal
act, under which one would have allowed to grant a licence to
establish and use a certain other broadcasting station and to
receive frequencies to other persons, and not only to the
Austrian Broadcasting Corporation, violated Article 10 of the
Convention for the Protection of Human Rights and Fundamental
Freedoms (hereinafter referred to as the Convention).
13. On 28 June 2001, the ECHR adopted a judgement in the
case VgT Verein gegen Tierfabriken v. Switzerland (Cour eur. D.
H., arr?t VgT Verein gegen Tierfabriken c. Suisse du 28 juin
2001, N? 24699/94). It was held therein that the prohibition of
political advertising sought to prevent from gaining a
competitive advantage by powerful financial groups in the sphere
of politics, also to ensure the independence of broadcasters, to
spare the political process from undue commercial influence, to
provide for a degree of equality of opportunity among the
different forces of society, to protect public opinion from the
pressures of powerful financial groups and from undue commercial
influence; powerful financial groups can obtain competitive
advantages in the area of commercial advertising and may thereby
exercise pressure on, and eventually curtail the freedom of, the
radio and television stations broadcasting the commercials; this
observation is especially valid in relation to audiovisual media,
whose programmes are often broadcast very widely.
14. On 5 November 2002, the ECHR adopted a judgement in the
case Demuth v. Switzerland (Cour eur. D. H., arr?t Demuth c.
Suisse du 5 novembre 2002, N? 38743/97). It was held therein that
an open and free debate and the free flow of information in a
democratic society are very important. In the situation
considered in that case the refusal to the applicant to broadcast
a programme on automobiles via cable television interfered in the
exercise of his freedom of self-expression, namely his right to
impart information and ideas under Paragraph 1 of Article 10 of
the Convention, however, it was necessary; although the aims of
the applicant were essentially commercial ones, while the
programmes were virtually designed for entertainment or
information on automobiles, this should not be regarded as an
obstacle due to which a licence to broadcast such specialised
programme cannot be granted in general, if "cultural elements"
were included in the programme (providing its content complies
with requirements of laws).
15. Thus, according to European law, inter alia EU law,
states can also establish by means of their legal acts that the
state shall fund the services of the public broadcaster. The
financing that the state may grant to the broadcasters should
must be necessary in order that the broadcaster could render
namely public services. The state financed public services must
be clearly defined. The state financial support to the
broadcaster may not be bigger than necessary to cover the
expenses incurred in the course of the rendition of public
services. These services may be funded only so that the
conditions of the financing would not distort competition and
would not harm the general interests. When radio frequencies are
distributed, one should base himself on objective, transparent
and non-discriminatory criteria and follow the principle of
proportionality. When assignment of radio frequencies is
regulated, it is possible to establish differentiated legal
regulation, if this is related with satisfying the general
interest. Advertising on television programmes of the national
broadcaster is permissible, however, state institutions not only
may, but also must establish requirements to broadcasting of
advertising.
V
1. In the constitutional justice case at issue the
petitioner disputes whether the provisions of the Law on the
Lithuanian National Radio and Television and the Law on Provision
of Information to the Public, which consolidate certain aspects
of the status of the LRT, as the public broadcaster, are not in
conflict with the Constitution.
2. While deciding whether the provisions of laws, which are
disputed by the group of Members of the Seimas, the petitioner,
are not in conflict with the Constitution, one has to elucidate
the content of the concept of the public broadcaster and the
tradition of the legal regulation of corresponding social
relations in Lithuania, as well as whether any requirements to
the public broadcaster arise from the Constitution, and if so,
then what requirements.
3. In Lithuania, the beginnings of the legal regulation of
the institute of radio as the public broadcaster (although this
notion was used neither in legal acts, nor everyday speech for a
long time) go back to the third decade of the 20th century, when
corresponding social relations were begun to be regulated in the
most economically advanced states of Europe at that time (in
France, a little laterin Great Britain and Germany).
3.1. In Lithuania, public radio broadcasts began on 13 June
1926, however, prior to that, on 19 May 1925, the Law on Radio
Communication had been adopted. This law became no longer valid
as from 1 April 1933 upon adoption and publishing the Law on
Radio Communications. The Law on Radio Communications came into
force on 1 April 1933; it was amended by the Amendment to the Law
on Radio Communications promulgated by the President of the
Republic on 30 December 1933 and by the Amendment to the Law on
Radio Communications adopted by the Seimas on 23 April 1937 and
promulgated by the President of the Republic.
The Law on Radio Communications (wording of 30 March 1933
with subsequent amendments) regulated the relations of
establishment of radio transition and reception stations, import
and registration of radio sets and distribution of fees for them.
Under this law, every citizen of Lithuania, after he has
registered his radio set and paid the subscription fee, could use
radio reception sets, while after reception of a permit from the
Minister of Communications, he could also use radio transmission
sets.
On 22 March 1927, the Seimas adopted the Law on Radio
Stations' Tariffs whereby it established fees for radio stations
installed in public places (restaurants, clubs), establishments,
private apartments and similar places. This law was valid till 1
April 1933. On 30 March 1933 the President of the Republic
promulgated the Radio Tariff (law), which came into force on 1
April 1933. The Radio Tariff was abolished on 16 January 1935
after the President of the Republic promulgated the Law on Post,
Telegraph, Telephone and Radio Tariffs (it was applied even for
some time after the Soviet Union occupied Lithuania in 1940).
Besides, on 26 March 1929 the President of the Republic
promulgated the Law on the State Radiophone which came into force
on 1 January 1929. Article 1 of this law established that the
State Radiophone shall be designed for "dissemination of
scientific, art, information and other cultural news", while
Article 9 provided that "the receipts of the State Radiophone
shall be composed inter alia from the subscription and
registration fees of radio sets, which is established by law,
receipts from concerts and radio adverts, as well as the sums
allocated from the budget". Article 2 of this law established
that the State Radiophone shall be under the jurisdiction of the
Ministry of Education. The Law on the State Radiophone was
amended by the amendments to this law, which were promulgated by
the President of the Republic on 2 September 1938 and 10 May
1939.
3.2. After the Soviet Union occupied Lithuania, on the
first day of the occupation, on 15 June 1940, the Soviet troops
captured the State Radiophone as well.
By Resolution No. 265 "On the Reorganisation of the State
Radiophone of the Lithuanian SSR" of 26 October 1940 of the then
Soviet of People's Commissars of the Lithuanian SSR, the then
State Radiophone (renamed as the State Radiophone of the
Lithuanian SSR) was reorganised into the Radiofication and
Radiophony Committee under the Soviet of People's Commissars of
the Lithuanian SSR.
3.3. During World War II, when Lithuania was occupied by
Germany, the Radiophone of Kaunas (August 1941) and later the
Vilnius Radio were connected to the radio network of Germany.
3.4. At the end of World War II (summer of 1944), when the
Soviet troops occupied Lithuania again and consolidated the
occupation power in its territory, the Lithuanian radio was
subjected to the totalitarian governance and became a tool of the
Soviet propaganda.
4. In Lithuania television appeared in the sixth decade of
the 20th century, i.e. much later than in most European states.
4.1. In 1936, in Great Britain the first public television
in Europe (BBC) was established, whose tasks were to "inform,
educate, and entertain" and whose activities (i.e. how this
public television performs the tasks assigned to it) were
supervised by the Board of Governors.
In Europe the public television model was dominant until
the ninth decade of the 20th century whereby television was
funded from the so-called subscription fee, the state budget, as
well as from advertising and was not directly subordinate to
government institutionsits activities were supervised by a
specially established independent institution. Having opted for
such a model of television, the state could not directly control
the content and quality of the programmes. The public televisions
retained the broadcast monopoly for about four decades. In
Europe, the monopoly of public television was abolished and a
network of commercial televisions came into being first in Great
Britain (the 1954 Television Act), and noticeably laterin
France, Germany and other states; in Italy, the legal provisions
establishing the monopoly of local broadcasters had not been
amended until they were recognised as being in conflict with the
Constitution. Meanwhile, in the United States licences for
television commercial stations were issued as far back as 1941.
When commercial television broadcasters came into being, at
once there appeared a tendency of legal regulation of the
relations linked with television broadcastingthey were regulated
so that the independence and impartiality of the public
broadcaster would be ensured. For instance, when commercial
television broadcasters began their activities in Great Britain
(in 1954), an independent establishment was founded, which was
commissioned by a law to ensure that information about political
events in the media would not violate the balance, while pursuant
to the 1990 Broadcasting Act, the Independent Television
Commission and Radio Authority were established. In this context
one is to mention that fact that an analogous establishment of
radio communications supervisionthe Federal Radio Commissionhad
been founded even before in the United States of America (the
Radio Act of 1927 and the Communications Act of 1934).
4.2. The Lithuanian Television was established by Order No.
71 of 25 February 1957 issued by the Minister of Culture of the
then Lithuanian SSR whereby the Vilnius television studio was
established; pursuant to Order No. 194 of 30 April 1957 issued by
the Minister of Culture of the Lithuanian SSR the broadcast of
state television programmes began. The then Soviet of Ministers
of the Lithuanian SSR adopted Resolution No. 307 "On Forming the
Radio and Television Committee under the Soviet of Ministers of
the Lithuanian SSR", while on 29 June 1957 the Minister of
Culture of the Lithuanian SSR issued Order No. 283 whereby the
commission for transferring the Supreme Radio Information Board
and the Vilnius Television Studio to the jurisdiction of the
Radio and Television Committee under the Soviet of Ministers of
the Lithuanian SSR. On 23 October 1957, the Soviet of Ministers
of the Lithuanian SSR adopted Resolution No. 528 "Issues of
Arrangement of the Radio and Television Committee under the
Soviet of Ministers of the Lithuanian SSR" whereby it inter alia
confirmed governing personnel positions of the administration of
the Radio and Television Committee under the Soviet of Ministers
of the Lithuanian SSR, the number of production and editorial
staff and actors, as well as the Regulations of the Radio and
Television Committee under the Soviet of Ministers of the
Lithuanian SSR. It was inter alia established in Item 4 of the
said resolution of the Soviet of Ministers of the Lithuanian SSR
that "the sources of covering the expenditures of the radio and
television bodies shall be their income and deductions made by
the Ministry of Communications to the Committee from the
subscription fee for radio sets, television sets and wire radio
sets."
4.3. The broadcasts of the Lithuanian radio as well as of
television were strictly censored during the Soviet occupation.
The Lithuanian television, as well as radio, was a state
establishment and from the start it used to be (until television
appeared and for some time later) under the jurisdiction of the
Ministry of Culture, while as of June 1957 it was under the
jurisdiction of the Radio and Television Committee under the
Soviet of Ministers of the Lithuanian SSR.
5. On 11 March 1990, when the independent State of
Lithuania was restored, the first preconditions were created for
the Lithuanian Radio and Television to become a public
broadcaster, i.e. to discharge the function that the State
Radiophone used to discharge in many respects until the Soviet
and German occupations.
5.1. On 22 March 1990, the Supreme Council of the Republic
of Lithuania adopted the Republic of Lithuania Law "On the
Reorganisation of the State Television and Radio Committee of the
Republic of Lithuania" by Item 1 whereof the State Television and
Radio Committee was abolished and the Lithuanian Radio and
Television was established.
On the same day, on 22 March 1990, the Supreme Council
adopted Resolution No. I-60 "On the Board of the Lithuanian Radio
and Television" in which it was established that the Supreme
Council shall form the Board of the Lithuanian Radio and
Television from 15 representatives of society and employees of
the Lithuanian Radio and Television. Such a board was formed by
Supreme Council Resolution No. I-106 "On Appointing the Board of
the Lithuanian Radio and Television" of 3 April 1990.
On 10 May 1990, the Supreme Council adopted Resolution No.
I-208 "On Approving the Statute of the Lithuanian Radio and
Television" whereby the Statute of the Lithuanian Radio and
Television was approved; this Supreme Council resolution came
into force on 31 May 1990. The Statute of the Lithuanian Radio
and Television, which was approved by the said resolution, inter
alia established that the LRT shall manage the equipment of
preparation of programmes and shall use transmission equipment by
the priority right.
5.2. By these first Supreme Council acts designed for
regulation of the relations linked with the Lithuanian Radio and
Television, preconditions were created to seek to attain that the
Lithuanian Radio and Television become independent from state
institutions (their officials), that neither state institutions
(their officials), nor other persons interfere with the
activities of the Lithuanian Radio and Television. Such
independence was a necessary condition for the Lithuanian Radio
and Television becoming a public broadcaster.
5.3. The Constitutional Court has held that, 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 was very
dynamic, too (Constitutional Court ruling of 29 September 2004).
In the context of the constitutional justice case at issue,
it needs to be noted that the legal regulation of the relations
linked with issuance of permits (licences) for enterprises to
install and exploit radio and television stations was also
amended many a time.
5.4. On 13 January 1991, the troops of the Soviet Union
captured the Lithuanian Radio and Television (in Vilnius) by
force and discontinued the transmission. However, transmission of
Lithuanian television broadcasts was soon renewed by creating
alternative networks of transmission from other stations (from
Kaunas, as well as from a studio in the Supreme Council of the
Republic of Lithuania). On 22 August 1991, the occupation troops
were forced to leave the captured buildings of the Lithuanian
Radio and Television.
5.5. With consolidation of the fundamentals of private
ownership and development of the economy towards the market
economy, there appeared not only political and legal, but also
economic preconditions for operating private (commercial) radio
and television broadcasters. In this context one is to mention
Government Resolution No. 62 "On Renting Radio and Television
Networks" of 31 January 1992 whereby the Ministry of
Communications and Informatics was granted the right to rent
(upon assent by the Government or the Supreme Council) state
radio and television transmitters, wire radiofication and cable
television networks, including those which had been rented to the
Lithuanian Radio and Television, as well as Resolution of the
Presidium of the Supreme Council No. I-2293 "On the Independent
System of Mass Information" of 6 February 1992 by Item 1 whereof
it was assented to the decision of the Lithuanian Radio and
Television to establish an independent non-state television by
using the third television channel. These (and not only these)
legal acts of the Government and the Supreme Council created
preconditions to private broadcasters, which render services of
transmission of audio and/or visual content, to compete with the
LRT for the audience of listeners and viewers.
5.6. Summing up, it needs to be held that upon restoration
of the independent State of Lithuania one gradually (but within a
comparatively short time) moved from the until then operational
model of monopolistic state broadcastersuch used to be the
Lithuanian Radio and Televisionto the model where the public
broadcaster, the Lithuanian Radio and Television, operates in the
same field of competition as private (commercial) broadcasters,
which render services of transmission of audio and/or visual
content: the public broadcaster competes with these private
broadcasters for the audience of listeners and viewers in the so-
called dualist (public broadcaster and private broadcasters)
system.
6. The raison d'?tre of the public broadcaster is to ensure
the public interestthe interest of society to be informedwhich
is entrenched in, and protected and defended by the Constitution.
The concept of all radio and television broadcasters, including
the public broadcaster, is closely related to the public
interest, i.e. to the interest of society to be informed, as well
as with freedom of information, also with the constitutional
concept of fair competition.
7. The constitutional freedom of information is inseparable
from the constitutional freedom of convictions and their
expression and it is the pre-condition thereof (Constitutional
Court rulings of 19 September 2005 and 29 September 2005). It is
an innate freedom of the human being (Constitutional Court
rulings of 8 July 2005 and 29 September 2005). The constitutional
basis of freedom of information is composed of the provisions of
Article 25 of the Constitution: the human being shall have the
right to have his own convictions and freely express them
(Paragraph 1); the human being must not be hindered from seeking,
receiving and imparting information and ideas (Paragraph 2);
freedom to express convictions, to receive and impart information
may not be limited otherwise than by law, if this is necessary to
protect the health, honour and dignity, private life, and morals
of a human being, or to defend the constitutional order
(Paragraph 3); freedom to express convictions and to impart
information shall be incompatible with criminal actions
incitement of national, racial, religious, or social hatred,
violence and discrimination, with slander and disinformation
(Paragraph 4); the citizen shall have the right to receive,
according to the procedure established by law, any information
concerning him that is held by state institutions (Paragraph 5).
The constitutional freedom to seek, obtain, and impart
information as well as ideas unhindered is one of the bases of an
open, just and harmonious civil society and state under the rule
of law; the Constitution guarantees and protects the interest of
society to be informed (Constitutional Court rulings of 23
October 2002, 4 March 2003, 26 January 2004, 8 July 2005, 19
September 2005 and 29 September 2005). The implementation of
human rights and freedoms and ensuring other constitutional
values very much depends on the opportunities to receive
information from various sources and make use of it. In its
ruling of 20 April 1995, the Constitutional Court held that the
right of individuals to have their own convictions must be based
on actual possibility to formulate them freely on the basis of
different information including the right to freely obtain
information.
In the context of the constitutional justice case at issue
it needs to be noted that, as the Constitutional Court held in
its ruling of 29 September 2005, the freedom of information
consolidated in the Constitution also includes freedom of
advertising.
In its acts the Constitutional Court has also held more
than once that freedom of information is not absolute
(Constitutional Court rulings of 20 April 1995, 19 December 1996,
10 March 1998, 23 October 2002, 26 January 2004 and 29 September
2005).
For instance, the constitution concept of freedom of
information does not encompass war propaganda, nor does it
encompass the alleged freedom, which denies the constitutional
values in essence, to perpetrate the criminal actions specified
in Paragraph 4 of Article 25 of the Constitution, i.e. to
disseminate such thoughts, convictions, etc. by which one incites
national, racial, religious, or social hatred, violence and
discrimination, by which persons are slandered or where society
or its individual members are disinformed otherwise
(Constitutional Court rulings of 19 September 2005 and 29
September 2005). A duty to the legislator stems from the
Constitution to legislatively establish the legal regulation
which would permit to prevent dissemination of disinformation
(Constitutional Court ruling of 29 September 2005).
The Constitution defines the limits of implementation of
freedom to information. Under Article 28 of the Constitution,
while implementing his rights and freedoms, thus, also the
freedom to information, the human being must observe the
Constitution and the laws of the Republic of Lithuania and must
not restrict the rights and freedoms of other people. In its
ruling of 20 April 1995, the Constitutional Court held that
"everyone which disseminate information has to observe the
restrictions established by laws, and not to abuse freedom of
information". Under Article 145 of the Constitution, after
imposition of martial law or a state of emergency, freedom of
information may be temporarily limited. Besides, the Constitution
provides for a possibility to limit freedom of information, if it
is necessary to protect the health, honour and dignity, private
life, and morals of a human being, or to defend the
constitutional order, i.e. if by means of restriction of freedom
of information one seeks to protect and defend the values
specified in Paragraph 3 of Article 25 of the Constitution, while
the list of the constitutional values enumerated in Paragraph 3
of Article 25 of the Constitution, as the Constitutional Court
held in its rulings of 19 September 2005 and 29 September 2005,
cannot be construed as a thorough and final one, i.e., as not
permitting to limit freedom to obtain and impart information in
cases where it is necessary to protect other constitutional
values, which are not mentioned expressis verbis in Paragraph 3
of Article 25 of the Constitution. The legal regulation defining
the limits on the implementation of freedom of information must
be established only by means of a law, however, the Constitution
does not prevent regulation of certain relations linked with
obtaining and dissemination of information also by substatutory
legal acts (by legal acts implementing the laws), however, the
substatutory legal acts cannot establish any such legal
regulation which is not based on the Constitution and laws, nor
any such legal regulation which competes with that established by
laws (Constitutional Court rulings of 19 September 2005 and 29
September 2005). Also other requirements arise from the
Constitution which must be followed when the constitutional
freedom of information is limited: the limitations are necessary
in a democratic society in attempt to protect the rights and
freedoms of other persons and the values entrenched in the
Constitution as well as the constitutionally important
objectives; the limitations do not deny the nature and essence of
the rights and freedoms; the constitutional principle of
proportionality is followed. The Constitutional Court has also
held that when legal limitations and liability for violations of
law are established, one must heed the requirement of
reasonableness (Constitutional Court rulings of 13 December 2004
and 29 September 2005).
In this context one is specially to emphasise the duty
arising from the Constitution not to violate the right of a human
being to inviolability of private life (also when this is done by
justifying it by freedom to information or the interest of
society to be informed). The Constitutional Court has held that
the right of a human being to privacy encompasses private, family
and house life, physical and psychological inviolability, honour
and reputation, secrecy of personal facts and prohibition to
publicise received or acquired confidential information etc.
(Constitutional Court rulings of 21 October 1999, 8 May 2000, 19
September 2002, 23 October 2002, 24 March 2003 and 29 December
2004), also that in case the private life of an individual is
interfered with in an arbitrary an unlawful manner, then,
alongside, his honour and dignity are encroached upon
(Constitutional Court rulings of 21 October 1999 and 8 May 2000).
8. The interest of society to be informed, which is
guaranteed and protected by the Constitution, implies
corresponding constitutional obligations to the state. On the one
hand, the state (its institutions and officials) has not only a
duty of negative content not to hinder the free flow of
information and ideas, but also a duty of positive content to
resort to all necessary measures so that other persons would not
hinder it. In this context, one is to emphasise that Article 44
of the Constitution provides that censorship of mass information
shall be prohibited (Paragraph 1), also that the state, political
parties, political and public organisations, and other
institutions or persons may not monopolise the mass media
(Paragraph 2).
The purpose of the state as a political organisation of the
entire society is to ensure human rights and freedoms and to
guarantee the public interest (Constitutional Court rulings of 30
December 2003, 13 December 2004, 29 December 2004, 16 January
2006 and 21 September 2006). The implementation of the public
interest, as an interest of society, which is recognised by the
state and is protected by law, is one of the most important
conditions of the existence and evolution of society itself
(Constitutional Court rulings of 6 May 1997, 13 May 2005 and 21
September 2006). The same can be said about the interest of
society to be informed. Free and universal exchange of
information, and its unrestricted dissemination are a
particularly important factor in democratic processes. This
factor ensures not only the formation of individual opinion and
subjective convictions but also that of group views, including
political, as well as that of the whole Nation's will
(Constitutional Court ruling of 13 February 1997). It needs to be
emphasised that the state as the common good of the entire
society (Constitutional Court rulings of 25 May 2004, 19 August
2006 and 21 September 2006) is under constitutional obligation
not only not to hinder free flow of information and ideas, and to
take all necessary measures so that other persons would not
hinder it, but also to resort to measures (positive activity)
itself (through its institutions) so that the public would be
informed about the most important processes taking place in
society and the state, that citizens (and other residents) would
receive information as precisely as possible about the tings that
they have to know, that citizens could participate in adoption of
decisions of state importance, that people could participate in
adoption of other decisions related with managing public affairs,
as well as decision related with implementation of their rights
and freedoms. Otherwise, preconditions would be created not only
to violate the rights of the person (including the right of
citizens consolidated in Paragraph 1 of Article 33 of the
Constitution to participate in the governance of their state both
directly and through their democratically elected representatives
and the right of citizens consolidated in Paragraph 2 of the same
article to criticise the work of state institutions or their
officials and to appeal against their decisions), but also other
values which are entrenched in and defended and protected by the
Constitution.
9. The interest of society to be informed which is
guaranteed and protected by the Constitution, as well as the
constitutional freedom of information, can be ensured only when
various mass media function freely (it does not mean that without
restrictions) in the state. A mature and developed system of mass
media is a necessary condition for ensuring the public interest,
i.e. the interest of society, to be informed. The freedom of mass
media, as well as the fact that the legislator has a duty to
establish the guarantees of mass media freedom by means of a law,
stems from the Constitution (Constitutional Court rulings of 23
October 2002, 4 March 2003 and 8 July 2005).
Information and ideas can be disseminated by means of
various mass media, inter alia the press, the internet, radio and
television. From the standpoint of dissemination of information
and ideas the fact as to who has founded certain mass media or
who their owner is, or who renders corresponding public services,
i.e. whether it is done by the state or private natural or legal
persons, is of no essential importance. However, it needs to be
noted that the Constitution does not tolerate any such situation,
where the need of society to be informed would be satisfied by
using only one means of mass media, since this would mean
monopolisation of mass media which is explicitly prohibited by
the Constitution: as mentioned, under Paragraph 2 of Article 44
of the Constitution, the state, political parties, political and
public organisations, and other institutions or persons may not
monopolise the mass media. This constitutional provision (which
is to be construed in the context of the prohibition to
monopolise the market, which is consolidated in Paragraph 4 of
Article 46 of the Constitution) is to be applied not only to the
state (its institutions), but also to all other persons. Thus,
the legislator is under constitutional obligation to establish,
by means of a law, the legal regulation whereby mass media would
not be monopolised and that in the mass media market and in the
space of public information no monopolisation trends would become
prevalent.
On the other hand, while establishing the said legal
regulation, the legislator must seek to attain a balance of the
values entrenched in and defended and protected by the
Constitution, he may not violate inter alia the right of private
ownership, freedom of individual economic activity and initiative
which are consolidated in Paragraph 1 of Article 46 of the
Constitution. In this context, it needs to be held that the
provisions of Article 25 of the Constitution, when construed
together with the provisions of Paragraph 1 of Article 46 of the
Constitution and other provisions of the Constitution, also
express the constitutional principle of variety of sources of
public information. All this implies in itself that if the
Constitution is heeded, a big part of the mass media market will
always be held by private persons and a big part of the space of
public information will be composed of information disseminated
through private mass media.
10. In the context of the constitutional justice case at
issue it needs to be noted that due to technological development,
the audiovisual sector of mass media and electronic media are
undergoing rapid changes. In this context one is to mention that,
as the Constitutional Court has held, freedom of mass media also
implies freedom of electronic mass media (Constitutional Court
ruling of 19 September 2005). When relations linked with
functioning of the audiovisual sector of mass media and with that
of electronic mass media (and with electronic communications in
general) are regulated by legal acts, account is to be taken, on
the one hand, of an especially big impact on the public by such
mass media, especially radio and television, and, on the other
hand, of the fact that at present the functioning of such mass
media was and to a certain extent is linked with the use of
limited resources, such as electronic communication channels
(radio frequencies), which belong to the state by right of
ownership. In this context it needs to be emphasised that, as the
Constitutional Court has held, greater demands are raised to
radio and television than to other means of mass media for their
especially great influence upon the broad audience, as well as
since that technical possibilities of radio and television
broadcasting are not unlimited (Constitutional Court ruling of 20
April 1995).
From the standpoint of a harmonious civil society, the
striving for which is proclaimed in the Preamble to the
Constitution, any trends to monopolise the audiovisual sector of
mass media, inter alia radio and television, as well as of
electronic mass media, are not to be tolerated. As the
Constitutional Court held in its ruling of 20 April 1995, the
prohibition consolidated in Paragraph 2 of Article 44 of the
Constitution "first and foremost, means the prohibition to
monopolise production of Radio and Television programmes, as well
as dissemination of information". This prohibition, as mentioned,
is to be applied also to the state (its institutions) and all
other persons.
Thus, under the Constitution, broadcasting of radio and
television programmes cannot be left to the state only, nor can
it equally be entrusted to one legal or natural person or few
persons, who would be able to monopolise the audiovisual sector
of mass media or part thereof. The Constitution implies that
various broadcasters must operate in the radio and television
broadcasting services market.
It also needs to be noted that if only the broadcaster
founded by the state or only a private broadcaster become overly
prevalent in the audiovisual sector of mass media, it would
create preconditions to violate the values entrenched in Article
25 of the Constitution and to overstep the limits of the
constitutional freedom of information, which is entrenched in
this article (Paragraph 4 thereof). Also, overly distinctive
dominance of the broadcaster founded by the state or a private
broadcaster in the audiovisual sector of mass media would violate
the principle of variety of sources of public information, which
arises from the Constitution. The legislator has a constitutional
duty to establish such legal regulation and such limitations so
that such trends (those of monopolisation or of overly
distinctive dominance) would not become prevalent. While doing
so, the legislator enjoys broad discretion to choose various
means of limitation, as, for instance, prohibition for one
natural or legal person, who is acting either alone or together
with others, to own a certain part of the capital, territory or
audience of a means of mass media, to limit the number of
licences granting the right to broadcast radio and television
programmes, to limit the size of the market of electronic
communication channels (radio frequencies) (which is applied
either to a person alone, or together with other persons, to
other means of mass media) etc.
11. Making use of freedom of information and its
implementation by means of mass media are to be related with
special obligations and responsibility. The specific character of
radio and television as means of mass media increases this
responsibility even more. As mentioned, greater demands are
raised to radio and television than to other means of mass media.
12. The information which the state (its institutions) is
constitutionally obligated to disseminate to citizens through
mass media, inter alia through radio and television, is linked
with fostering various values, which are entrenched in and
protected and defended by the Constitution, and with
implementation of various principles of the Constitution. By
disseminating such information one seeks to attain socially and
constitutionally important objectives, i.e. to ensure protection
of national interests (inter alia national security), to
strengthen democracy, to promote the public spirit, respect for
law, openness of society and tolerance, to foster language,
culture etc. For instance, in its ruling of 8 July 2005, the
Constitutional Court held that the state is constitutionally
obligated to support and foster culture as a national value of
universal importancethe material and spiritual creative activity
and its results that are to be transferred to future generations;
according to the Constitution, the state must, by its positive
decisions (inter alia legal regulation), encourage and support by
using state funds and other resources the creation, spreading,
propagation and preserving material and spiritual cultural
values; the freedom of accessibility to cultural values is
entrenched in the Constitution, which is related also with the
imperative of open society, which is also consolidated in the
Constitution: if this freedom is not ensured, the striving for an
open society would suffer damage as well.
The dissemination of such information, which is related to
fostering of various values entrenched in and defended and
protected by the Constitution, and with implementation of various
principles of the Constitution, to the public is a necessary
condition for proper discharging of various state functions.
13. It needs to be noted that the state can choose various
ways of dissemination of the said information through radio and
television, i.e. to render corresponding public services to the
public in various ways. It can do so not only through the
broadcaster established by the state, but also through private
radio and television broadcasters; it can entrust various radio
and television broadcasters with broadcasting (by following
corresponding requirements) certain public radio and television
programmes. In this context one is to mention the fact that, as
it has been held by the Constitutional Court, the state may
exercise its functions to a certain extent through other
establishments (other than state institutions), which are
assigned (entrusted) according to the laws with exercising
particular state functions or which participate in exercising
state functions in particular forms and manners defined in the
laws (Constitutional Court ruling of 13 December 2004). Thus, the
state can guarantee the interest of society to be informed also
by entrusting (tendering) dissemination of public programmes to
those radio and television broadcasters who would ensure the
implementation of the said interest in the most efficient manner.
Under the Constitution, the state may establish, by means
of a law, also certain requirements to programmes of radio and
television broadcasters (including private ones), inter alia the
fact that certain part of their programmes must be composed of
broadcasts corresponding to the content of public programmes; it
can also induce private broadcasters to broadcast public radio
and television programmes, by establishing compensation criteria
in advance, providing such programmes meet the specified
conditions.
Alongside, the state (its institutions) have a duty to
supervise whether the programmes and broadcasts broadcast by
radio and television broadcasters (including private ones) do not
violate the constitutional principle of equal rights of persons,
human dignity, the rights, freedoms and legitimate interests of
the person. Besides, the state (the institutions empowered by it)
has a duty to control the use of electronic communication
channels (radio frequencies) assigned to radio and television
broadcasters, as well as the lawfulness and transparency of
financing of all radio and television broadcasters (including
sources of financing), and to regulate the conditions of entering
of broadcasters into the market, the concentration of the market
both within the country, as well as when this is done together
with foreign investors, etc.
14. On the other hand, state regulation of the activity of
private radio and television broadcasters cannot overstep certain
limits established in the Constitution, inter alia by such
regulation it is not permitted to violate protection of private
ownership, nor to constitutionally unreasonably restrict freedom
of individual economic activity and initiative, nor to introduce
censorship.
Therefore, it needs to be noted that the state
opportunities to entrust private broadcasters with disseminating
information, related to fostering various values entrenched in
and protected and defended by the Constitution, and to
implementation of various principles of the Constitution, with
rendering corresponding public services to society, are limited
ones, since private (commercial) broadcasters come into being not
in order to contribute to the discharging of corresponding state
functions (rendering of public broadcasting services) on their
own initiative, but because of the fact that broadcasting of
radio and television, as it is done by private (commercial)
broadcasters, is an economic activity by which one seeks profit,
meanwhile, the public information that the state is
constitutionally obligated to disseminate (although such
information is related to fostering various values entrenched in
and protected and defended by the Constitution, and to
implementation of various principles of the Constitution) often
is not such information the dissemination of which would be
profitable to the broadcasterit is disseminated on order to
satisfy the public interest, but not in order to gain profit.
The state opportunities to entrust private broadcasters
with disseminating information, related to fostering various
values entrenched in and protected and defended by the
Constitution, and to implementation of various principles of the
Constitution, with rendering corresponding public services to
society, are limited ones also because of the fact that there are
very limited possibilities to control the structure of
programmes, let alone influence the content without violating the
independence of private broadcasters.
15. As the experience of states of the world shows, as a
rule, it is impossible for states not to have at least one public
radio and television broadcaster (which is, as a rule,
established by the state itself); the broadcasting of the said
socially and constitutionally important information to the
society volens nolens is entrusted to a special subjectthe
public broadcaster which is established and which operates on the
grounds other than private (commercial) broadcasters.
The fact that the Constitution does not employ the notion
of the public broadcaster does not mean that no requirements
arise to the public broadcaster from the Constitution, which are
determined by the peculiarities of the public broadcaster in
comparison with otherprivate (commercial)broadcasters. Quite to
the contrary, the duty of the state (its institutions) to
disseminate information to the public through mass media (inter
alia through radio and television) which is related to fostering
various values entrenched in and protected and defended by the
Constitution, and to implementation of various principles of the
Constitution, and the fact that the state opportunities to
entrust private broadcasters with disseminating such information
and rendering corresponding public services to society, are
limited ones, imply a constitutional necessity to establish the
public radio and television broadcaster and to regulate the
relations related with its activity so that the said duty of the
state would be properly executed.
16. It has been held in this Constitutional Court ruling
that the raison d'?tre of the public broadcaster is to ensure the
public interestthe interest of society to be informed, which is
entrenched in, and protected and defended by the Constitution.
This implies a special mission of the public broadcaster.
The mission of the public broadcaster, as well as its
functions, arise from various norms and principles of the
Constitution and values entrenched in the Constitution. It
implies that a national public broadcaster must be established
and that he must render corresponding public services so that
these services would cover entire society and help ensure
national interests, that they would be designated for education
of the civil society and fostering of culture. On the other hand,
it does not deny the fact that along with the national public
broadcaster there might be other public broadcasters, who operate
not on the level of the whole state (but, for example, on a
regional level), whose mission may have certain peculiarities
determined by the specificity of the audience of their listeners
and/or viewers.
It needs to be specially emphasised that important
functions fall upon the public broadcaster, who carries out its
mission, in contributing to the implementation of the sovereignty
of the Nation and principles of democracy, as well as in ensuring
the security of society and the state, public order, welfare of
the citizens and their rights and freedoms. Also an important
role falls upon the public broadcaster when the state discharges
its constitutional obligation to support culture and science, to
take care of the protection of Lithuanian historical, artistic
and cultural monuments and other culturally valuable objects.
17. The activity of the public broadcaster must be
organised in a way so that state institutions could have a real
opportunity to render corresponding information through the
public broadcaster. For instance, the law must consolidate a duty
of the public broadcaster to promptly announce official reports
about emergency situations (natural or other disasters etc.),
also information about other important events of this country and
those from abroad, inter alia the events which could (either
directly or indirectly) cause negative effects to Lithuanian
society and/or the state itself. The public broadcaster must give
air-time for urgent messages also in other special cases, inter
alia when high state officials and heads of institutions request
so. The principle of democracy entrenched in the Constitution
inter alia implies that the law must establish the legal
regulation where, at the time of election campaigns, the public
broadcaster gives air-time to the political parties and political
organisations, the candidates to the Seimas, to the European
Parliament, to the post of the President of the Republic and to
municipal councils who participate in the election; the
constitutional principles of justice and equality of persons
imply that the persons of the same categories should be given
equal air-time, unless such allocation of the same air-time and
observance of the criterion of arithmetical proportionality would
hinder the implementation of certain socially and
constitutionally important objectives.
Besides, the constitutional freedom of associations and the
constitutional provisions that the state recognises the churches
and religious organisations that are traditional in Lithuania and
that churches and religious organisations are free to proclaim
their teaching imply that the law may (and, under certain
circumstances, must), without violating the constitutional
secularism and world-view neutrality of the State of Lithuania,
as well as separation between the state and the church, establish
a duty to the public broadcaster to give some air-time to public
organisations and the churches recognised by the state, thus
ensuring the self-expression opportunities of members of these
organisations and communities and diminishing the threat that
they would not be heard at all. Alongside, it needs to be noted
that it is not permitted to abuse the political, religious or
other expression by any persons in programmes and broadcasts of
the public broadcaster, it is not permitted that such expression
violates the constitutional right of other people to have their
own convictions and freely express them, since, under the
Constitution, "no views or ideology may be promulgated as
mandatory and thrust on an individual, i.e. the person who freely
forms and expresses his own views and who is a member of an open,
democratic, civil society" (Constitutional Court ruling of 13
June 2000).
18. In its ruling of 20 April 1995, the Constitutional
Court held that "the publisher is responsible for the information
being disseminated, his or an editor's demands and directions
therefore concerning the content of information, as well as
decisions in regard with the possibility of its dissemination or
alike, are not considered to be censorship". This official
constitutional doctrinal provision is applicable to all radio and
television broadcasts, including those made by the public
broadcaster. In addition, the official constitutional doctrinal
provision that state institutions and officials have a duty to
respect human dignity as a special value (Constitutional Court
ruling of 29 December 2004) and the constitutional imperatives
regarding the inviolability of the right to private life and
protection of private life are applicable to the public
broadcaster, too. Therefore, the public broadcaster must refuse
to broadcast programmes or broadcasts, in which opponents or
other persons are insulted or otherwise humiliated, in which some
people are discriminated because of their sex, race, nationality,
language, origin, social status, belief, convictions, or views,
in which human dignity is otherwise violated, or the public
broadcaster must not permit that the persons who do so
participate in its programmes or broadcasts. The legislator has a
duty to consolidate the right to react which could be used
effectively the human being about whom disinformation was
disseminated about him (which could violate his dignity as well)
in the programmes or broadcasts of the public broadcaster (or
other broadcasters), in denying the untrue information (facts).
19. As mentioned, an important role falls upon the public
broadcaster when the state discharges its constitutional
obligation to support culture and science, to take care of the
protection of Lithuanian historical, artistic and cultural
monuments and other culturally valuable objects. It implies that
the public broadcaster must assign proper air-time to the
programmes and broadcasts designated for culture, inter alia
science, art, other areas of spiritual life and creation, to the
material and spiritual heritage of society, as well as to the
programmes and broadcasts promoting Lithuanian culture beyond the
boundaries of Lithuania. The programmes and broadcasts of the
public broadcaster must reflect the variety of Lithuanian
culture, without excluding the cultural life and cultural
heritage of Lithuanians who reside abroad. In this context one is
to mention the fact that, as it was held by the Constitutional
Court, "state support and development of culture as a
constitutionally protected and defended value would be
impossible, if culture was not developed in regions, separate
parts of the territory of the state, separate self-governing
territorial communities, which form a part of the entire
community of the statethe civil Nation" (Constitutional Court
ruling of 8 July 2005).
20. One is also to emphasise the especially important role
of the public broadcaster when the use of the language is
fostered in public life, when the respect for the Lithuanian
languagea constitutional valueis consolidated, by ensuring its
survival, spread and consistent development.
21. The public broadcaster may foster culture by choosing
various genres of broadcasts: those of information, education,
entertainment and of more easy content. In this context, it needs
to be noted that from the Constitution no prohibition whatsoever
arises to the public broadcaster to broadcast entertainment
broadcasts as well, if they are of cognitive, educational or
other cultural value, especially if such broadcasts can connect
different social groups from the cultural standpoint. It is
important that the broadcasts of the public broadcaster designed
to culture, no matter to what genre they belong or to what
audience they are meant, must always be of quality. No
consumerist interest of any social group, inter alia that denying
the cultural identity of Lithuania, may have any impact on the
broadcasts of the public broadcaster.
22. Summing up, it needs to be held that only because of
its nature and purpose the public broadcaster differs from
private (commercial) radio and television broadcasters
broadcasting of programmes and broadcasts by the public
broadcaster must be rendition of public services, i.e. rendition
of services to society, since public services must satisfy the
public interest, thus, they must be of public character. In this
respect the public broadcaster is an expresser of the public
interest. Thus, the public broadcaster must always remain
independent of any particularprivate or groupinterests
(political, economic or other interests).
In a pluralistic democracy (while Lithuania, under the
Constitution, is a pluralistic democracy) the activity of the
public broadcaster must be based on objectiveness, impartiality,
and justice, and it may not depend on any party or other
political preferences. The activity of the public broadcaster
must rally the society, but not shatter it. In the programmes
broadcast by this broadcaster various views must be represented,
universal, human values verified by the civilisation and time
must be propagated, the entire variety of life of society and the
state, as well as the variety of cultures, must be reflected,
various topics and issues, inter alia such which are designated
to the people with special needs, whose socialisation and
integration into society are more difficult than that of other
people (for example, the people with disabilities), must be
discussed. An important part of the mission of the public
broadcaster, which arises from the Constitution, is to seek that
the dissemination of the information broadcast by him would help
to increase social capital, to decrease the social gulf and to
increase social solidarity, to strengthen the constitutionally
valuable social ties, civil spirit and open, just, harmonious
civil society, to help the society to perceive itself as a state
communitythe civil Nationto increase the creative potential of
society, to promote civilisation values, ecological awareness, to
foster the culture of society, the cultural affinity and cultural
succession of the Nation, as well as human self-expression, and
to promote the decision of social and state issues in a rational
manner.
23. It is due to this that the public broadcaster may, and,
while one takes account of the fact that state opportunities to
entrust private broadcasters with rendition of public
broadcasting services are limited ones, even must be commissioned
to render public radio and television services or most of them.
24. The constitutional mission of the public broadcaster
implies also the fact that material, organisational and financial
conditions must be created in order that the public broadcaster
could successfully accomplish his mission, also that the
legislatively established legal regulation guarantees the
independence of the public broadcaster from interference of state
institutions and officials, as well as other persons, with the
activity of the public broadcaster. In order that the public
broadcaster carries out his mission, this is conditio sine qua
non.
In this context it needs to be noted that in itself the
fact that the state is the founder of the public broadcaster does
not mean that the imperative of independence of the public
broadcaster is deviated from.
It needs to be emphasised that the law must establish such
model of governance of the public broadcaster, which would ensure
that one will not deviate from the constitutional mission of the
public broadcaster, also that independence of the public
broadcaster will not be denied.
In itself, one cannot regard the fact that certain state
institutions, which are provided for in the law, may participate
in the formation of the highest institution of the public
broadcaster, which has the powers to decide the most important
issues of the activity of the public broadcaster, as, for
example, to plan the strategy of activity of the public
broadcaster, to establish requirements for programmes and
broadcasts etc. (this highest institution may be named in a
varied manner: the council, the board etc.), as well as in the
formation of the institutions supervising the activity of the
public broadcaster, as a deviation from the said independence
imperative. Such participation of the state institutions which
are provided for in the law in the formation of the said
institutions of the national public broadcaster in itself does
not mean that the state interferes with the activity of the
national public broadcaster.
However, it needs to be emphasised that the public
broadcaster established by the sate may reasonably be regarded as
a public broadcaster only when the institution that has the
powers to decide the most important issues of the activity of the
public broadcaster is composed not of state officials or
servants, but from persons who could reasonably called
representatives of entire society, but not of some interest
groups (as well as professional and institutionalised groups,
inter alia those linked with mass media, with radio and
television in particular, as well as groups uniting the persons
whose creative work or production could be promoted by the public
broadcaster). They must express namely the interests of the
entire society. These persons must represent the widest possible
social spectrum. The procedure for election or appointment of the
highest institutions that has powers to decide the most important
issues of the activity of the public broadcaster must be public
and transparent.
25. Broadcasting of programmes and broadcasts is a certain
technical process. In this respect it is absolutely of no
importance whether the programmes or broadcasts are broadcast by
the public broadcaster or private (commercial) broadcastersthe
character of this technical process and of the activity related
with it does not become different because of this. In the context
of the constitutional justice case at issue, it needs to be
emphasised that even when the programmes and broadcasts are
broadcast by the public broadcaster, and when this is done by
private (commercial) broadcasters, the features of the
broadcasting and of the activity related with it in the discussed
aspect are virtually the same, regardless of who is broadcasting
and to whom the broadcast is meant, regardless of what is
broadcast (information, educational, sport or entertainment
broadcasts, films, concerts, trailers, ads, etc.), and regardless
of whether corresponding broadcasts are broadcast subsequent to
someone's commission (inter alia for commercial purposes), or
upon the initiative of the broadcaster itself, in the absence of
any ordering customer. In addition, the activity of some
broadcasters always exerts influence on the activity of other
broadcasters (especially, on the activity of the same character,
while indirectly, also on the activity which is of different
character), as well as on economic and commercial activity. Thus,
all radio and television broadcasters, whatever they broadcast
(i.e. it is not important whether or not the broadcasting
services rendered by them are designated for satisfying the
public interest, thus, they are of public character), they, as
participants in the audiovisual sector inevitably compete for the
audience of listeners and viewers. The same can be said about the
public broadcaster, which is not somewhere "apart" of this
competition field, since every consumer of television or radio
services always, at every concrete moment chooses one, but not
another, radio or television broadcaster (i.e. a broadcast or
programme broadcast by it), thus, having chosen to listen to or
to watch, for example, a programme or broadcast which is being
broadcast by the public broadcaster, he also chooses not to watch
or not to listen to the programmes or broadcasts which are being
broadcast by private (commercial) broadcasters, and vice versa.
In this way every consumer of television or radio services
(listener or viewer) himself defines his position in regard to
radio and television broadcasters, which inevitably compete with
other broadcasters for the audience of listeners and viewers.
However, it needs to be specially emphasised that the
public broadcaster, when one has in mind its special
constitutional mission, is not established for the purpose of
taking the market (or part thereof) and establishing itself
therein; in this regard it essentially differs from private
(commercial) broadcasters. Its mission is differentit is a
mission of a non-participant of the market. The public
broadcaster, as a provider of public services related with the
interest of society to be informed (the interest which arises
from the Constitution), is not meant for the market (although, in
certain cases, whenever it broadcasts advertising, it operates in
the market), therefore, its purpose cannot be mere striving for
bigger audience of listeners of viewers, nor satisfaction of
consumerist needs. Quite to the contrary, the public broadcaster,
without representing any interest group, must render public radio
and television services to the entire society, and not only to
its founder, i.e. the state. The programmes and broadcasts of the
public broadcaster must be prepared and disseminated not because
of their economic profit, but because the corresponding
information is necessary for the citizens (and other residents)
so that the citizens might participate in adoption of decisions
of state importance, that people could participate in adoption of
other decisions related with management of public affairs, as
well as decisions related with the implementation of their rights
and freedoms.
Thus, the activity of the public broadcaster cannot be
commercialised, its programmes and broadcasts should not be
oriented to attracting the biggest possible audience, nor to a
commercial success. The public broadcaster must not adapt to the
situation in the audience or the market, not flatter consumerist
tastes, but inform and educate the society, implant such civil
and cultural attitudes in the public, which are dictated to the
public broadcaster by its constitutional mission. If one deviated
from this requirement, not only the constitutional mission of the
public broadcaster would be harmed, but also the raison d'?tre of
the public broadcaster would be negated.
26. It has been mentioned that greater requirements are
raised to radio and television than to other means of mass media,
also, that the specific character of radio and television as
means of mass media increases the responsibility of the public
broadcaster even more. This can be said even to the greater
extent about the public broadcaster. The biggest requirements of
mass media ethics must be applied to the public broadcaster (to
its programmes and broadcasts). For example, dissemination of any
disinformation (which, as mentioned, is not covered by the
constitutional concept of freedom of information) is absolutely
prohibited in programmes and broadcasts of the public broadcaster
(as well as in those of other broadcasters). In a state under the
rule of law (i.e. in a state, where human rights and freedoms are
respected, protected and defended) there may not be any such
legal regulation whereby the public broadcaster (as well as other
broadcasters) would not be liable if due to its unlawful action,
or failure to act, in its programmes or broadcasts human dignity
and the right to inviolability to private life were infringed, if
in such programmes or broadcasts the thoughts, views, or other
information has been disseminated by which national, racial or
social hatred, violence and discrimination are incited, persons
are slandered or the society or its individual members are
disinformed otherwise, and if criminal actions are instigated.
Under the Constitution, the public broadcaster must remove all
preconditions so that freedom of information is not abused.
27. It has been held in this Constitutional Court ruling
that the public broadcaster is not meant for the market
(although, whenever it broadcasts advertising, it operates in the
market) and that the programmes and broadcasts of the public
broadcaster must be prepared and disseminated not because of
their economic profit. However, it does not mean that it is
permissible to arrange the activity of the public broadcaster in
a way that its administration would not be interested in the
"feedback", i.e. what is the rating of the programmes and
broadcasts of the public broadcaster and what response is evoked
by programmes and broadcasts of the public broadcaster within the
audience of radio listeners and television viewers. Nor does it
mean that the activity of the public broadcaster cannot bring
profit (if, when account is taken of the content and quality of
concrete programmes and broadcasts, the radio and television
market grants such opportunities), or that this activity may be
unprofitable, let alone that, as a rule, funds of all taxpayers
are allocated in order to finance such activity.
28. As mentioned, material, organisational and financial
conditions must be created in order that the public broadcaster
could successfully accomplish its mission. Thus, the nature and
constitutional mission of the public broadcaster also imply not
only the state obligation to establish the public broadcaster,
but also a duty to ensure the activity of the public broadcaster,
inter alia a duty to assign proper financing to the public
broadcaster so that it could carry out the said mission and
render corresponding public broadcasting services. In this
context it needs to be mentioned that, as it was held by the
Constitutional Court, when forming and implementing the cultural
policy (inter alia creative activities), one must pay heed to the
resources of the state and society, material and financial
capabilities of the state and society, as well as other important
factors, inter alia expediency (Constitutional Court ruling of 8
July 2005).
In this context one is also to note that the legislator of
the Republic of Lithuania, upon restoration of the independent
State of Lithuania, chose (and consolidated in the Law on
Lithuanian National Radio and Television) such model of the
public broadcaster, whereby, save the state itself, there are no
other joint-owners of the public broadcaster, the LRT.
28.1. Under the Constitution, the legislator enjoys broad
discretion to choose the financing model of the LRT as the public
broadcaster. When doing so, the legislator must heed the
Constitution.
28.2. Various models of financing the national public
broadcaster have been established in the EU member states, as
well as in other states, which differ from one another in the
sources (direct or through the state budget) from which the
national public broadcaster is funded. Such sources of financing
are very varied ones: the state budget; the so-called
subscription fee (levy) which is, as a rule, paid by the persons
to whom radio and television broadcasting services are rendered;
finance from a fund, which has been specially established for
this purpose; receipts from advertising (including commercial
advertising), as well as other means earned by the public
broadcaster itself. Besides, these broadcasters are eligible to
various support, including financial one.
It needs to be noted that in some states the model of
financing the national public broadcaster is consolidated, where
one relies on only one source of financingeither the state
budget or the so-called subscription fee (levy). In other states
these two sources of financing are combined with each other, the
national public broadcaster receives financing from both the
state budget and the so-called subscription fee (levy). Still in
other states the (mixed) model of financing the national public
broadcaster where, along with the financing from the state budget
and the financing received from the so-called subscription fee
(levy), also the funds accumulated in a special fund, whose
purpose is financial support of the public broadcaster, is
established. Even still in other states the national public
broadcaster may, in addition to the financing of one or several
of the aforesaid sources, also receive finance from advertising
(including commercial advertising). It needs to be noted that the
states in which the national public broadcaster may receive
finance also from advertising (including commercial advertising)
compose the vast majority. The absolute majority of national
public broadcasters may also obtain receipts from varied other
activity, which is not related with advertising, as, for example,
from sales of its broadcasts, from publishing trade, property
rent etc.
It needs to be noted that it is universally recognised that
it is the financing of the national public broadcaster from
several sources that best ensures the independence of this
broadcaster inter alia from political power.
Summing up, it needs to be held that in the world there is
not a single universally recognised model of financing the
national public broadcaster. Alongside, it needs to be held that
the model of financing the national public broadcaster has been
widely established, where the so-called subscription fee (levy)
is established in order to finance its activity and which is paid
by the users of broadcasting services (which, as mentioned, is
often used in combination with other sources of financing). Such
fee (for the radio) had been established in Lithuania before the
Soviet Union occupied and annexed it in 1940.
28.3. It needs to be emphasised that the state financial
support to the national public broadcaster, which is allowed to
broadcast advertising by the law, should not overstep the limits
of reasonableness and fairness. In this area one has to heed
corresponding provisions of European (inter alia EU) law.
28.4. It needs to be emphasised that the choice for a model
of financing the national public broadcaster is a matter of
social, political and economic expediency, which is within the
competence of the legislator. Under the Constitution, the
legislator has discretion to choose the model of financing the
national public broadcaster, by taking account of the resources
of the state and society, material and financial possibilities,
by paying heed to other important factors, inter alia expediency.
While doing so, he may not violate any norms and principles of
the Constitution.
28.4.1. In this context it needs to be noted that the
Constitutional Court has held that one may not assign any
functions to institutions of self-government, which they are not
able to perform (Constitutional Court rulings of 14 January 2002
and 8 July 2005) and that in case the functions of the state are
transferred by laws to municipalities, as well as in case laws
and other legal acts create duties of municipalities, funds
needed for performance of these functions (fulfilment of duties)
must be allocated as well (Constitutional Court rulings of 24
December 2002 and 8 July 2005). It was held in the Constitutional
Court rulings of 14 January 2002, 24 December 2002, 13 December
2004 and 8 July 2005 that according to the Constitution
municipalities must execute laws, thus, including the laws by
which municipalities are obligated to perform functions of the
state that are assigned to them, and that funds, which are needed
in order to ensure full-fledged functioning of self-government
and performance of municipal functions, must be provided for in
the state budget.
The cited constitutional doctrinal provisions are
applicable mutatis mutandis not only to self-government
(municipal) institutions, but also to all institutions
established by the stateestablishments, enterprises and
organisations; it stems from the Constitution that if the
legislator has established a certain institution which is
entrusted with discharging a certain state function or functions,
he must provide also the sources of its financing, he must
establish the legal regulation so that this financing would be
sufficient in order to discharge the corresponding function
(functions). Thus, upon establishing the national public
broadcaster, the Seimas, under the Constitution, has to establish
the legal regulation so that this broadcaster would have
sufficient finance for accomplishing its special constitutional
mission. However, it does not mean that all this finance must
necessarily be provided for in the State Budget and allocated
from it; other sources of financing the national public
broadcaster may be provided for as well.
28.4.2. The Constitutional Court has also held that "the
question whether certain needs (goals) are provided sufficient or
insufficient funds from the state budget is not about the
compliance of the state budget with the Constitution but about
budget planning, evaluation of the needs of the society and the
state, their balance with the possibilities of the society and
the state, and consequently social and economic expediency"
(Constitutional Court ruling of 14 January 2002). This official
constitutional doctrinal provision cannot be construed as
including also the cases where the law on the state budget
establishes the legal regulation in which it is clear from the
start that one has clearly provided for insufficient or no
finance for certain needs (objectives), alongside, by not
providing for any other (alternative) sources of finance, which,
under the Constitution, may be provided for corresponding needs,
and this is clearly in conflict with the welfare of the Nation,
the interests of the society and the State of Lithuania, and
clearly denies the values entrenched in, as well as defended and
protected by the Constitution. In this context, it needs to be
emphasised that "under the Constitution the legislator, while
issuing a law or other legal act for the implementation of which
funds are necessary, must provide for the funds necessary for the
implementation of such a law or other legal act" and that "under
the Constitution, the legislator cannot create any such legal
situation when a law or other legal act is passed for the
implementation of which funds are necessary, but such funds are
not appropriated or there is insufficient appropriation thereof"
(Constitutional Court ruling of 13 December 2004).
In this context it needs to be noted that the
Constitutional Court held in its ruling of 31 May 2006 that "law,
when it regulates social relations, defines the limits of the
content of the state policy (the economic policy as well) and it
establishes permissible legal measures and methods for executing
the said policy" and that "in itself this does not deny the
autonomy of the political process, the formation and specificity
of execution of the state policy (the economic policy as well),
nor the independence of the legislative and executive powers, as
state political powers, and of the institutions which are formed
in a democratic way in establishment (according to their
competence) of the content of the state policy (the economic
policy as well) (by choosing inter alia its priorities), and also
the legal measures and methods for executing of the said policy".
It was also held in the same Constitutional Court ruling that
"under the Constitution, the Seimas as the institution of
legislative power and the Government as an institution of
executive power enjoy very broad discretion to form and execute
the economic policy of the state (each according to their
competence) and to properly regulate economic activities by means
of legal acts, by not violating the Constitution and laws, inter
alia by not exceeding the powers established in them to the said
institutions of state power and by following the requirements of
the proper legal process which stems from the Constitution and
the principles of a state under the rule of law, of separation of
powers, of responsible governance, of protection of legitimate
expectations and the principles of legal clarity, certainty and
security as entrenched in the Constitution".
In its ruling of 31 May 2006 (as well as in its ruling of
26 September 2006), the Constitutional Court also held that "the
assessment of the content, measures and methods of the state
economic policy (inter alia priorities) (no matter who assesses
them), also with regard to their reasonableness and expediency,
even if it turns out later that there were better alternatives
for choosing its economic policies (thus also that the formerly
formed and executed economic policy could be assessed negatively
with regard to its reasonableness and expediency) in itself
cannot be the reason to question the compliance of the legal
regulation of the economic activity conforming to the economic
policy (formed and executed before) with the legislation of
higher power, inter alia with the Constitution (also with regard
to constitutional justice cases initiated at the Constitutional
Court), unless the said legal regulation is clearly in conflict
with the general welfare of the Nation, with the interests of
society and the State of Lithuania, or unless it denies the
values entrenched in and defended as well as protected by the
Constitution", also that "neither the fact where in legal acts
differentiated legal regulation was established to a certain
sector of economy, which is different from the legal regulation
of other economic sectors, nor the fact whether the legal
regulation of a certain economic activity is changed in reacting
to changes in the market as well as the economic (as well as
international) conjuncture, in itself cannot serve as such
pretext, since <
> the legal pre-conditions of differentiated
legal regulation (when account is taken of the importance and
nature of the regulated relations) originate from the
Constitution itself (inter alia Paragraph 2 of Article 46 of the
Constitution), the differentiated establishment of the legal
situation of separate economic entities is to be related with the
objectives raised by the state in a certain sector of economy,
the striving to arrange the economy of this country in a
corresponding manner, besides, due to a specific character,
variety and dynamism of economic activity, regulation of concrete
relations in this area cannot be the same all the time, i.e. the
ratio of prohibitions and permissions is subject to change inter
alia while seeking to ensure the public interest".
Although, as it was held in this Constitutional Court
ruling, the public broadcaster, as a provider of public services
related with the interest of society to be informed (the interest
which arises from the Constitution), is not meant for the market
and that the programmes and broadcasts of the public broadcaster
must be prepared and disseminated not because of their economic
profit, however, the activity of the public broadcaster
(especially that of the national public broadcaster), the
competition with private (commercial) broadcasters for the
audience of listeners and viewers exert influence on the economic
and commercial activity of these other broadcasters, whereas when
it broadcasts advertising, the public broadcaster is a
participant in the corresponding (advertising) competition
relations.
In the context of the constitutional justice case at issue,
the cited official constitutional doctrinal provisions are to be
construed as also implying that the legislator, when implementing
his discretion stemming from the Constitution to establish such
differentiated legal regulation of relations linked with
advertising, which at the given time best meets the expediency
reasons, must alongside ensure the public interest so that the
activity of the public broadcaster be efficient, that its special
constitutional mission be carried out, and may legislatively
regulate the corresponding relations also in a manner, where
advertising is permitted in the programmes and broadcasts of the
national public broadcaster, as well as may establish limitations
on advertising.
28.4.3. In its ruling of 8 July 2005, the Constitutional
Court held that "the constitutional duty of the legislator to
establish such legal regulation where, having taken account of
resources of the state and society, material and financial
capabilities, as well as other important factors, funding for
municipal functions might be guaranteed, does not deny the duty
of municipalities (their institutions or officials) to adopt
decisions, within the competence established by the Constitution
and laws, to collect funds needed for performing their functions
and to use these funds in a due way" and that "the aforesaid
constitutional duty of the legislator does not deny the
responsibility of municipalities (their institutions or
officials) for the proper performance of the functions
transferred to them".
The cited constitutional doctrinal provisions are
applicable mutatis mutandis not only to self-government
(municipal) institutions, but also to all institutions
established by the stateestablishments, enterprises and
organisations (their officials), unless the independent
collection of the funds, reception of support, etc. would be in
conflict with the purpose of the corresponding institution, the
nature of its activities, would hinder proper discharging of its
functions, and would raise doubts as regards decisions of this
institution (its officials) (with regard to independence,
impartiality, transparency, absence of conflict of interests or
in other respects).
In the context of the constitutional justice case at issue,
it needs to be noted that the LRT as the national public
broadcaster is not such an institution established by the state
in whose regard this reservation could be applied a priori.
29. It needs to be specially emphasised that the
Constitution does not tolerate any such insufficient financing of
the national public broadcaster (as any other public broadcaster)
(i.e. which is not sufficient in order to carry out its
constitutional mission) from the state budget (or its decreasing)
when by this it is attempted (or could be attempted) to violate
its independence and thus exert influence on the programmes and
broadcasts which are broadcast by the public broadcaster.
30. As mentioned, one of the sources of financing the
national public broadcaster (which, by the way, is often employed
in various states) is the means received by this broadcaster from
the broadcast advertising (inter alia commercial one).
30.1. If the model of financing the national public
broadcaster is chosen whereby it also receives means from
broadcast advertising, one must heed inter alia the provisions of
Articles 29 and 46 of the Constitution (including the provisions
with which, in the opinion of the group of Members of the Seimas,
the petitioner, the legal regulation that is being disputed in
this constitutional justice case is in conflict).
However, it needs to be emphasised that there are not any
constitutional arguments which would permit to assert a priori
that the LRT, as the national public broadcaster, cannot, in
general, broadcast advertising (neither commercial nor any
other), nor that it cannot receive funds from broadcast
advertising (either commercial or any other), as well as, by the
way, funds from prepared and/or broadcast of non-advertising
content broadcasts from other ordering customers, nor that such
legal regulation, which consolidates a possibility to the LRT to
broadcast advertising and to receive funds from it, in itself
violates the constitutional clause of fair competition, the
constitutional principle of equal rights of persons, and other
provisions of the Constitution.
It needs to be noted that limitations on advertising
(including commercial advertising) in programs and broadcasts of
the public broadcaster is a matter of legislation, but not that
of constitutional review, unless these limitations obviously
denied certain constitutional values and were harmful to the
whole society; in such cases their compliance with the
Constitution could be put under investigation.
30.2. In this context it needs to be mentioned that freedom
of information consolidated in the Constitution also covers
freedom of advertising, inter alia freedom to advertise goods and
services, that each advertising is informationa special kind of
information, and that advertising is an important means of
competition (Constitutional Court rulings of 13 February 1997, 26
January 2004 and 29 September 2005). By means of advertising of
goods and services, irrespective of whether or not this activity
is charged, it is always sought to induce, either directly of
indirectly, usage of certain goods or services; also the
information can induce to use certain goods or services, in the
course of dissemination of which one does not seek to induce to
do so (e.g., statistical data, technical and other information,
which announce something, draw one's attention to something,
etc.); under certain circumstances, dissemination of such
information can exert the same influence upon receivers of such
information as advertising, thus, in this respect, it can amount
to advertising; disseminated information is not necessarily of
only advertising or only of non-advertising content: it can
contain both elements of advertising content and information
whose dissemination is not advertising (Constitutional Court
ruling of 29 September 2005).
30.3. The jurisprudence of the Constitutional Court is
based on the principled position that freedom of advertising may
be limited by means of a law if one seeks to protect
constitutional values, however, such limitation of this
constitutional freedom must be necessary in a democratic society,
while the means chosen must be proportionate to the objective
sought; one has to maintain a reasonable balance between a
corresponding constitutional value and the constitutional right
of a human being to seek, receive and impart information.
Information, also that of advertising content, cannot be limited
only due to the fact that, in the opinion of the legislator, it
is not useful to the people, although it is not harmful to them.
Selective limitation of advertising, i.e. limitation upon its
dissemination and/or obtaining by means of certain sources and
non-limitation upon its dissemination and/or obtaining by means
of other sources is permissible only when such differentiation is
objectively justifiable. Under the Constitution, the limitations
on freedom of advertising, which are established by means of a
law, cannot be bigger than necessary in order to protect the
corresponding constitutional value (Constitutional Court ruling
of 29 September 2005).
30.4. In the context of the constitutional justice case at
issue it needs to be noted that the legislator may also establish
such legal regulation whereby it would limit broadcasting of
advertising in the programmes and broadcasts of the LRT as the
national public broadcaster (and other radio and television
broadcasters). For example, it is permitted to establish
limitations on and/or prohibitions of the length and occurrence
of advertising, prohibitions to broadcast advertising on certain
days or at a certain time of the day, prohibitions to advertise
certain goods or services, prohibitions to broadcast advertising
in certain programmes or broadcasts (in relation to their content
or according to the audience), prohibitions to broadcast
political advertising etc.
The legislator may even prohibit to broadcast advertising
on the national radio and television at all (although it is a
rare case in the world), but only if the resources and financial
possibilities of society can afford it and if it does not impair
the constitutional mission of the national public broadcaster.
Besides, in such a special situation the legislator must ensure
proper financing of the LRT as the national public broadcaster in
other ways, for example, by means of the so-called subscription
fee (levy), especially if the complete ban on advertising
broadcasting might prevent this broadcaster from carrying out its
constitutional mission. Otherwise, preconditions would be created
to violate the interest of society to be informed, which is
entrenched in, and defended and protected by the Constitution,
and certain constitutional values might be denied for whose
implementation, fostering and protection the institute of the
public broadcaster is precisely designated.
30.5. On the other hand, if one chooses the model of
financing the LRT as the national public broadcaster, where the
LRT also receives funds from broadcast advertising, when account
is taken of the special constitutional mission of the national
public broadcaster and its situation in the audiovisual sector of
mass media, any legal regulation of the relations linked with
financing and activities of this broadcaster whereby the LRT
would be allocated only the funds received from advertising or
mostly the funds received from advertising, would be
constitutionally groundless. Thus preconditions might be created
for the LRT to become dependent and vulnerable, since the
carrying out of the constitutional mission of the public
broadcaster (for which finance is necessary) would depend on the
situation in the audience or the market, on improper interest
groups' and political influence, it might become commercialised,
its programmes and broadcasts might be oriented only to
attraction of the biggest possible audience, to commercial
success, to flattering consumerist tastes, but not to the public
interest. Such broadcasts and programmes would not inform nor
educate the society, implant such civil and cultural attitudes in
the public, which are dictated to the public broadcaster by its
constitutional mission, and, there might even appear a threat
that the special constitutional mission of the national public
broadcaster would be negated at all.
31. As mentioned, at present the functioning of radio and
television (the audiovisual sector of mass media) was and to a
certain extent is linked with the use of limited resources, such
as electronic communication channels (radio frequencies), which
belong to the state by right of ownership.
Alongside, it needs to be noted that that both in the world
and in Lithuania there is a tendency that in the long run
electronic communication channels (radio frequencies) may lose
their character as a limited resource. Until that happens, it
must be ensured that the national public broadcaster will, if
need may be, receive to use a newly coordinated electronic
communication channel (radio frequency). It implies by the
stemming from the Constitution imperative to create material,
organisational and financial conditions to the national public
broadcaster so that it might successfully carry out its special
constitutional mission.
It needs to be noted that the legal regulation of the
competition for limited resources belonging to the state by right
of ownership, if compared with other relations of competition,
cannot be devoid of peculiarities. Also it needs to be noted that
the legal regulation consolidating that the national public
broadcaster must, if need may be, receive to use a newly
coordinated electronic communication channel (radio frequency),
must be established by means of a law.
32. In the context of the constitutional justice case at
issue it needs to be emphasised that the law must establish not
only the model of governance of the national public broadcaster,
which would ensure that one will not deviate from this
constitutional mission of this broadcaster and that the
independence of the national public broadcaster will not be
negated, but also that this law must establish a corresponding
model of control of this broadcaster.
Such control of the activity of the national public
broadcaster must be comprehensive, it may not be just formal one.
Such control may not be conducted by any persons, who themselves
are related with the national public provider by official,
property or financial links or are dependent on it in one or
another way, or who themselves have interests related with the
activity of the national public broadcaster, or who belong to
interest groups (also institutionalised ones), which have
precisely such interests.
The above-mentioned control of the national public
broadcaster includes, among other things, the financial and
property audit, which is a very important part of this control.
Inter alia, one has to control whether the national public
broadcaster does not abuse its special legal status and the
opportunities granted by this status (also, those that are
granted in the radio and television services market), whether in
its activity one does not deviate from the constitutional
imperatives of fair competition, and whether the funds, which are
allocated (not only from the State Budget) to the national public
broadcaster so that it could carry out its special constitutional
mission, are used precisely for this purpose.
However, the control of the activity of the national public
broadcaster cannot be understood as a mere financial or property
audit. Such control must also include the control of the trend in
the content and structure of programmes and broadcasts of the
national public broadcaster (both a priori (preliminary) and a
posteriori (successive)), i.e. such its monitoring and checking,
where the programmes and broadcasts of the national public
broadcaster are assessed also in the aspect of the mission of
this broadcaster, which arises from the Constitution and is
defined in laws.
It needs to be emphasised that such control may not become
censorship of the programmes and broadcasts of the national
public broadcaster, which, as censorship of any other mass media,
is prohibited expressis verbis by the Constitution.
VI
On the compliance of Paragraphs 1, 3, and 4 (wording of 29
June 2000) of Article 6 the Law on the Lithuanian National Radio
and Television to the extent that they provide for a possibility
to broadcast commercial advertising in programmes of the
Lithuanian National Radio and Television, Paragraph 1 of Article
15 (wording of 29 June 2000) of the same law to the extent that
it provided that the Lithuanian National Radio and Television is
funded from the receipts obtained from commercial advertising,
Paragraph 2 of the same article to the extent that it provided
that the National Radio and Television of Lithuania shall
implement commercial activity independently when it broadcasts
commercial advertising with Paragraphs 2, 3, and 4 of Article 46
of the Constitution.
1. Paragraph 1 (wording of 29 June 2000) of Article 6 of
the Law on the Lithuanian National Radio and Television provided:
"Advertising in LRT programmes shall be broadcast in accordance
with the procedure established by laws." Paragraph 3 (wording of
29 June 2000) thereof provided: "Duration of advertising both on
LRT television and on LRT radio programmes must not exceed 15
percent of the day's broadcast time." Paragraph 4 (wording of 29
June 2000) thereof provided: "With the increase of LRT receipts
obtained from the State levy, advertising time shall be gradually
and proportionately reduced to 10 percent of a day's broadcast
time, per decision of the Council." It was established in
Paragraph 1 of Article 15 (wording of 29 June 2000) of the same
law: "The LRT shall be funded from the allocation of the State
Budget, income obtained from the State levy for the services
provided to the public by the LRT, for transmission of radio and
television broadcasts, advertisement, publishing and from
sponsorship and receipts obtained from commercial and economic
activity. With the increase of LRT receipts from the State levy,
LRT financing from the State Budget shall be reduced
accordingly." In Paragraph 2 of the same article it was
established: "The LRT shall implement commercial, economic and
publishing activity independently."
2. Paragraphs 1, 3, and 4 (wording of 29 June 2000) of
Article 6 the Law on the Lithuanian National Radio and Television
consolidated a possibility to broadcast commercial advertising in
LRT programmes and established certain limitations on
broadcasting of advertising (inter alia commercial advertising).
The group of Members of the Seimas, the petitioner,
disputes the compliance of the principled provision consolidated
in Paragraphs 1, 3, and 4 (wording of 29 June 2000) of Article 6
the Law on the Lithuanian National Radio and Television, i.e. the
provision that the LRT in general may broadcast commercial
advertising, with the Constitution. The constitutionality of
concrete limitations on broadcasting of advertising, which are
established in the said paragraphs, is not disputed in the
constitutional justice case at issue.
3. Paragraph 1 of Article 15 (wording of 29 June 2000) of
the Law on the Lithuanian National Radio and Television
established the sources of LRT funding, one of which is the
receipts obtained from advertising.
The group of Members of the Seimas, the petitioner,
disputes the compliance of this paragraph of Article 15 (wording
of 29 June 2000) of the Law on the Lithuanian National Radio and
Television to the extent that it established that the LRT is
funded from the receipts obtained from commercial advertising
with the Constitution. The constitutionality of other sources of
LRT funding (inter alia the receipts obtained from non-commercial
advertising) is not disputed in the constitutional justice case
at issue.
4. Paragraph 2 of Article 15 (wording of 29 June 2000) of
the Law on the Lithuanian National Radio and Television
consolidated the independence of the LRT in implementing
commercial, economic and publishing activity.
The group of Members of the Seimas, the petitioner,
disputes the compliance of Paragraph 2 of Article 15 (wording of
29 June 2000) of the Law on the Lithuanian National Radio and
Television to the extent that it was established that when
broadcasting commercial advertising, the LRT shall implement its
commercial activity independently, with the Constitution. The
constitutionality of the independence of the LRT in conducting
other activity (inter alia when non-commercial advertising is
broadcast) is not disputed in this constitutional justice case.
5. Article 46 of the Constitution inter alia provides that
"the State shall support economic efforts and initiative that are
useful to society" (Paragraph 2); that "the State shall regulate
economic activity so that it serves the general welfare of the
Nation" (Paragraph 3); that "the law shall prohibit
monopolisation of production and the market and shall protect
freedom of fair competition" (Paragraph 4).
6. When deciding whether the provisions of Paragraphs 1, 3,
and 4 (wording of 29 June 2000) of Article 6 and Paragraphs 1 and
2 of Article 15 (wording of 29 June 2000) of the Law on the
Lithuanian National Radio and Television, which are disputed by
the group of Members of the Seimas, the petitioner, were not in
conflict with the Constitution, it needs to be noted that, as it
has been held in this Constitutional Court ruling:
- the LRT, as the national public broadcaster, must carry
out a special constitutional missionto ensure a public
interesti.e. the interest of society to be informed, which is
entrenched in, and defended and protected by the Constitution; it
is a mission of someone who is not a participant in the market;
the national public broadcaster is not meant for the market,
however, it competes with private (commercial) radio and
television broadcasters for the audience of listeners and
viewers; when broadcasting advertising, the national public
broadcaster is also a participant of corresponding competition
relations (concerning advertising);
- it is universally recognised that it is the financing of
the national public broadcaster from several sources that best
ensures the independence of this broadcaster inter alia from
political power; one of such sources is receipts obtained from
advertising, inter alia commercial advertising; the states in
which the national public broadcaster may receive finance also
from advertising (including commercial advertising) compose the
vast majority;
- the state is under constitutional obligation to ensure
the activity of the national public broadcaster, inter alia it
has a duty to allocate proper funding to the public broadcaster
so that it could carry out its constitutional mission and to
render corresponding public broadcasting services; under the
Constitution, the legislator has the discretion to choose a model
of financing of the public broadcaster; the choice for a model of
financing the national public broadcaster is a matter of social,
political and economic expediency, which is within the competence
of the legislator;
- the legislator may establish, by means of a law, that
advertising is permitted in programmes and broadcasts of the
national public broadcaster, as well as he may establish
limitations on advertising; limitations on advertising (including
commercial advertising) in programs and broadcasts of the public
broadcaster is a matter of legislation, but not that of
constitutional review, unless these limitations obviously denied
certain constitutional values and were harmful to the whole
society; in such cases their compliance with the Constitution
could be put under investigation;
- the legislator may not only establish limitations on
broadcasting of advertising in programmes and broadcasts of the
national public broadcaster, but also prohibit, by means of a
law, broadcasting of advertising on the national radio and
television, but only if the resources and financial possibilities
of society can afford it and if it does not impair the
constitutional mission of the national broadcaster; in such a
special situation the legislator must ensure proper financing of
the LRT as the national public broadcaster in other ways, for
example, by means of the so-called subscription fee (levy);
- if the model of financing the national public broadcaster
is chosen, whereby this broadcaster also receives funds from
broadcast advertising, it would be constitutionally groundless
that the national public broadcaster is funded only by the funds
received from advertising or mostly the funds received from
advertising;
- the state financial support to the national public
broadcaster, which is allowed to broadcast advertising by the
law, should not overstep the limits of reasonableness and
fairness, nor may it violate the provisions of European (inter
alia EU) law; the funds allocated to the national public
broadcaster for carrying out its special constitutional mission
must be used precisely for this purpose.
The proper model of governance of the public national
broadcaster and control of its activities have to ensure the
observance of these and other requirements that arise from the
Constitution (and for laws) to the national public broadcaster.
7. It was also held in this Constitutional Court ruling
that there are not any constitutional arguments which would
permit to assert a priori that the LRT, as the national public
broadcaster, cannot broadcast advertising (neither commercial nor
any other), nor that it cannot receive funds for broadcast
advertising (either commercial or any other), as well as, by the
way, funds for prepared and/or broadcast of non-advertising
content broadcasts from other ordering customers, nor that such
legal regulation, which consolidates a possibility to the LRT to
broadcast advertising and to receive funds for it, in itself
violates the constitutional clause of fair competition, the
constitutional principle of equal rights of persons, and other
provisions of the Constitution.
The same could be said about the relation of the disputed
provisions of Paragraphs 1, 3, and 4 (wording of 29 June 2000) of
Article 6 and Paragraphs 1 and 2 of Article 15 (wording of 29
June 2000) of the Law on the Lithuanian National Radio and
Television with the provision of Paragraph 2 of Article 46 of the
Constitution that the state shall support economic efforts and
initiative that are useful to society, the provision of Paragraph
3 thereof that the state shall regulate economic activity so that
it serves the general welfare of the Nation, also with the
provision of Paragraph 4 thereof that the law shall prohibit
monopolisation of production and the market and shall protect
freedom of fair competition.
8. In the petition of the group of Members of the Seimas,
the petitioner, as well as in the course of consideration of this
constitutional justice case at the Constitutional Court hearing,
information was presented about factual aspects of the LRT
activity which, in the opinion of the group of Members of the
Seimas, the petitioner, shows that the LRT activity deviates from
imperatives of fair competition and is not in line with the
special constitutional mission of this broadcaster.
It needs to be noted that the legal position regarding the
compliance of the provisions of Paragraphs 1, 3, and 4 (wording
of 29 June 2000) of Article 6 and Paragraphs 1 and 2 of Article
15 (wording of 29 June 2000) of the Law on the Lithuanian
National Radio and Television with the Constitution may not be
argued by means of assessment of the activity of the LRT (as well
as of any other broadcaster or any other institution).
9. Taking account of the arguments set forth, one is to
draw a conclusion that Paragraphs 1, 3, and 4 (wording of 29 June
2000) of Article 6 the Law on the Lithuanian National Radio and
Television to the extent that they provide for a possibility to
broadcast commercial advertising in programmes of the Lithuanian
National Radio and Television were not in conflict with
Paragraphs 2, 3, and 4 of Article 46 of the Constitution.
10. While deciding whether Paragraph 1 of Article 15
(wording of 29 June 2000) of the Law on the Lithuanian National
Radio and Television to the extent that it provided that the
Lithuanian National Radio and Television is funded from the
receipts obtained from commercial advertising, and whether
Paragraph 2 of Article 15 (wording of 29 June 2000) of the same
law to the extent that it provided that the National Radio and
Television of Lithuania shall implement commercial activity
independently when it broadcasts commercial advertising were not
in conflict with the Constitution, one is to note that the
disputed provisions of these paragraphs are related with the
principled provision consolidated in Paragraphs 1, 3, and 4
(wording of 29 June 2000) of Article 6 the same law that the LRT
may in general broadcast commercial advertising, and that this
Constitutional Court ruling has recognised that the said
provision was not in conflict with the Constitution. The
arguments by which one substantiated the compliance of Paragraphs
1, 3, and 4 (wording of 29 June 2000) of Article 6 the Law on the
Lithuanian National Radio and Television to the extent that they
consolidated a possibility to broadcast commercial advertising in
programmes of the Lithuanian National Radio and Television with
the Constitution are applicable mutatis mutandis also when one
decides whether Paragraph 1 of Article 15 (wording of 29 June
2000) of the same law to the extent that it provided that the
Lithuanian National Radio and Television is funded from the
receipts obtained from commercial advertising, and whether
Paragraph 2 of Article 15 (wording of 29 June 2000) of the same
law to the extent that it provided that the National Radio and
Television of Lithuania shall implement commercial activity
independently when it broadcasts commercial advertising were not
in conflict with the Constitution.
It also needs to be emphasised that the independency of the
LRT when it broadcasts advertising (inter alia commercial
advertising) is one of the aspects of the independence of the LRT
as the national public broadcaster from interference of state
institutions and officials as well as other persons, with the LRT
activity; one must ensure such independence so that this
broadcaster would carry out its special constitutional mission.
11. Taking account of the arguments set forth, one is to
draw a conclusion that Paragraph 1 of Article 15 (wording of 29
June 2000) of the Law on the Lithuanian National Radio and
Television to the extent that it provided that the Lithuanian
National Radio and Television is funded from the receipts
obtained from commercial advertising, and Paragraph 2 of Article
15 (wording of 29 June 2000) of the same law to the extent that
it provided that the National Radio and Television of Lithuania
shall implement commercial activity independently when it
broadcasts commercial advertising were not in conflict with
Paragraphs 2, 3, and 4 of Article 46 of the Constitution.
VII
On the compliance of Paragraph 5 of Article 5 (wording of
29 June 2000) of the Law on the Lithuanian National Radio and
Television to the extent that it provided that the Lithuanian
National Radio and Television shall have a priority right to
newly co-ordinated electronic communication channels (radio
frequencies), that of the provision "The Council shall: <
> (3)
establish the number of channels and their use in programme
transmission" of Paragraph 1 of Article 10 (wording of 29 June
2000) of the same law, and that of Paragraph 4 of Article 31
(wording of 29 August 2000) of the Law on Provision of
Information to the Public to the extent that it provides that
channels (radio frequencies) for broadcasting programmes of the
Lithuanian National Radio and Television are assigned without a
tender with Paragraph 1 of Article 29 and Paragraphs 2, 3, and 4
of Article 46 of the Constitution.
1. It was established in Paragraph 5 of Article 5 (wording
of 29 June 2000) of the Law on the Lithuanian National Radio and
Television: "The LRT shall have a priority right to newly co-
ordinated electronic communication channels (radio frequencies),
state radio and television broadcasting installations with state
of the art radio and television technologies. The LRT shall have
the right to have 2 television and 4 radio programmes." It was
established in Paragraph 1 of Article 10 (wording of 29 June
2000) of the same law: "The Council shall: <
> (3) establish the
number of channels and their use in programme transmission." It
was established in Paragraph 4 of Article 31 (wording of 29
August 2000) of the Law on Provision of Information to the
Public: "LRT activities shall not be licensed. The Communications
Regulatory Authority shall assign channels (radio frequencies)
for broadcasting LRT programmes, without a tender, based upon the
strategic plan, upon co-ordinating the decision with the
Commission."
2. Paragraph 5 of Article 5 (wording of 29 June 2000) of
the Law on the Lithuanian National Radio and Television and
Paragraph 4 of Article 31 (wording of 29 August 2000) of the Law
on Provision of Information to the Public consolidated inter alia
the priority right of the LRT to newly co-ordinated electronic
communication channels (radio frequencies), which is implemented
on non-tender basis.
The other legal regulation established in the
aforementioned paragraphs, inter alia the powers of the
Communications Regulatory Authority and the Lithuanian Radio and
Television Commission in assigning channels (radio frequencies)
for broadcasting LRT programmes, without a tender, is not
disputed in the constitutional justice case at issue.
3. The provision of Paragraph 1 of Article 10 (wording of
29 June 2000) of the Law on the Lithuanian National Radio and
Television, which is disputed by the group of Members of the
Seimas, the petitioner, consolidated the powers of the LRT
Council to establish the number of LRT channels and their use in
broadcasting programmes. After the LRT Council adopts a decision
on the necessity to assign a new electronic communication channel
(radio frequency), there appear grounds to implement (without a
tender) the priority right to the corresponding electronic
communication channel (radio frequency), which is consolidated in
Paragraph 5 of Article 5 (wording of 29 June 2000) of the Law on
the Lithuanian National Radio and Television and Paragraph 4 of
Article 31 (wording of 29 August 2000) of the Law on Provision of
Information to the Public.
4. It has been held in this Constitutional Court ruling
that at present the functioning of radio and television (the
audiovisual sector of mass media) was and to a certain extent is
linked with the use of limited resources, such as electronic
communication channels (radio frequencies), which belong to the
state by right of ownership, also that until electronic
communication channels (radio frequencies) lose their character
as a limited resource, it must be ensured that the national
public broadcaster will, if need may be, receive to use a newly
coordinated electronic communication channel (radio frequency).
It was also held that the legal regulation of the competition for
limited resources belonging to the state by right of ownership,
if compared with other relations of competition, cannot be devoid
of peculiarities, and, it needs to be noted that the legal
regulation consolidating that the national public broadcaster
must, if need may be, receive to use a newly coordinated
electronic communication channel (radio frequency), must be
established by means of a law.
5. Having held this, one is to hold that there are not any
constitutional arguments would permit to assert that the
consolidation of the implementation, without a tender, the
priority right of the LRT to the corresponding electronic
communication channel (radio frequency) in Paragraph 5 of Article
5 (wording of 29 June 2000) of the Law on the Lithuanian National
Radio and Television and Paragraph 4 of Article 31 (wording of 29
August 2000) of the Law on Provision of Information to the Public
violated the Constitution, inter alia the principle of equal
rights of persons which is established in it, or the imperatives
of fair competition.
6. Taking account of the arguments set forth, one is to
draw a conclusion that Paragraph 5 of Article 5 (wording of 29
June 2000) of the Law on the Lithuanian National Radio and
Television to the extent that it provided that the Lithuanian
National Radio and Television shall have a priority right to
newly co-ordinated electronic communication channels (radio
frequencies) and Paragraph 4 of Article 31 (wording of 29 August
2000) of the Law on Provision of Information to the Public to the
extent that it provided that channels (radio frequencies) for
broadcasting programmes of the Lithuanian National Radio and
Television are assigned without a tender were not in conflict
with Paragraph 1 of Article 29 and Paragraphs 2, 3, and 4 of
Article 46 of the Constitution.
7. As mentioned, under Paragraph 1 (Item 3 thereof) of
Article 10 (wording of 29 June 2000) of the Law on the Lithuanian
National Radio and Television, the LRT Council had the powers to
establish a number of LRT channels and their use in broadcasting
programmes, also that after the LRT Council adopts a decision on
the necessity to assign a new electronic communication channel
(radio frequency), there appear grounds to implement (without a
tender) the priority right to the corresponding electronic
communication channel (radio frequency), which is consolidated in
Paragraph 5 of Article 5 (wording of 29 June 2000) of the Law on
the Lithuanian National Radio and Television and Paragraph 4 of
Article 31 (wording of 29 August 2000) of the Law on Provision of
Information to the Public.
8. The arguments which substantiated the compliance of
Paragraph 5 of Article 5 (wording of 29 June 2000) of the Law on
the Lithuanian National Radio and Television to the extent that
it provided that the Lithuanian National Radio and Television
shall have a priority right to newly co-ordinated electronic
communication channels (radio frequencies) and Paragraph 4 of
Article 31 (wording of 29 August 2000) of the Law on Provision of
Information to the Public to the extent that it provided that
channels (radio frequencies) for broadcasting programmes of the
Lithuanian National Radio and Television are assigned without a
tender with the Constitution are applicable mutatis mutandis also
when one decides whether the provision "The Council shall: <
>
(3) establish the number of channels and their use in programme
transmission" of Paragraph 1 of Article 10 (wording of 29 June
2000) of the Law on the Lithuanian National Radio and Television
was not in conflict with the Constitution.
9. Taking account of the arguments set forth, one is to
draw a conclusion that the provision "The Council shall: <
> (3)
establish the number of channels and their use in programme
transmission" of Paragraph 1 of Article 10 (wording of 29 June
2000) of the Law on the Lithuanian National Radio and Television
was not in conflict with Paragraph 1 of Article 29 and Paragraphs
2, 3, 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:
To recognise that Paragraph 5 of Article 5 (wording of 29
June 2000; Official Gazette Valstybės žinios, 2000, No. 58-1712)
of the Republic of Lithuania Law on the Lithuanian National Radio
and Television to the extent that it provided that the Lithuanian
National Radio and Television shall have a priority right to
newly co-ordinated electronic communication channels (radio
frequencies), Paragraphs 1, 3, and 4 (wording of 29 June 2000;
Official Gazette Valstybės žinios, 2000, No. 58-1712) of Article
6 the same law to the extent that they consolidated a possibility
to broadcast commercial advertising in programmes of the
Lithuanian National Radio and Television, the provision "The
Council shall: <
> (3) establish the number of channels and their
use in programme transmission" of Paragraph 1 of Article 10
(wording of 29 June 2000; Official Gazette Valstybės žinios,
2000, No. 58-1712) of the same law, Paragraph 1 of Article 15
(wording of 29 June 2000; Official Gazette Valstybės žinios, No.
58-1712) of the same law to the extent that it provided that the
Lithuanian National Radio and Television is funded from the
receipts obtained from commercial advertising activity, Paragraph
2 of Article 15 (wording of 29 June 2000; Official Gazette
Valstybės žinios, 2000, No. 58-1712) of the same law to the
extent that it provided that the National Radio and Television of
Lithuania shall implement commercial activity independently when
it broadcasts commercial advertising, and Paragraph 4 of Article
31 (wording of 29 August 2000; Official Gazette Valstybės žinios,
2000, No. 75-2272) of the Republic of Lithuania Law on Provision
of Information to the Public to the extent that it provided that
channels (radio frequencies) for broadcasting programmes of the
Lithuanian National Radio and Television are assigned without a
tender, were not in conflict with the Constitution of the
Republic of Lithuania.
This ruling of the Constitutional Court 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
Toma Birmontienė
Egidijus Kūris
Kęstutis Lapinskas
Zenonas Namavičius
Ramutė Ruškytė
Vytautas Sinkevičius
Stasys Stačiokas
Romualdas Kęstutis Urbaitis