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On the status, management and rights of the national broadcaster

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’S LAW ON THE LITHUANIAN NATIONAL RADIO AND TELEVISION AND PARAGRAPH 4 OF ARTICLE 31 (WORDING OF 29 AUGUST 2000) OF THE REPUBLIC OF LITHUANIA’S 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

The court reporter—Daiva Pitrėnaitė

Advocate Vygantas Barkauskas, acting as the representative of a group of members of the Seimas of the Republic of Lithuania, the petitioner

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, acting as the representatives of the Seimas of the Republic of Lithuania, the party concerned

The Constitutional Court of the Republic of Lithuania, pursuant to Articles 102 and 105 of the Constitution of the Republic of Lithuania and Article 1 of the Law on the Constitutional Court of the Republic of Lithuania, in its public hearing, on 5 and 6 December 2006, considered 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 an investigation into whether

Paragraphs 1, 3, and 4 of Article 6, Paragraph 1 of Article 15 of the Republic of Lithuania’s 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’s 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’s 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 the petition requesting an investigation into 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 an investigation into 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 prescribed: “Advertising in LRT programmes shall be broadcast in accordance with the procedure established by law”; Paragraph 3 (wording of 29 June 2000) of the same article prescribed: “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 prescribed: “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 prescribed: “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 prescribed: “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 subject at the time when the same economic activity is carried out by other subjects 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 no 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 should 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 classed as belonging 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 legislature 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, difficulties occur for the 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) broadcasters—the 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 prescribes 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 mixed—state and commercial—financing. 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’s 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’s Law on Monitoring State Aid to Economic Subjects.

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 impugned 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 impugned 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 an investigation into 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. The 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 new commercial broadcasters to 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 before, 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 may 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 the 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’s hearing, written explanations were received from R. Šniukaitė (at the time of consideration of the constitutional justice case at issue—R. Bielskė) and A. Skaistys, the representatives of the Seimas, the party concerned, in which it is maintained that the impugned 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 for passing 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’s 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 impugned 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’s 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. This 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’s hearing, written explanations were received from I. Šiaulienė, Chairperson of the Seimas Committee of the Development of Information Society, J. Lionginas, Chairperson of the Seimas Committee on Budget and Finance, P. Auštrevičius, Deputy Chairperson 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, Chairperson 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’s 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, explained, inter alia, that the petitioner does not negate the need of the existence of the public broadcaster, however, he thinks that the conditions of the 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 should 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 impugned 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’s 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’s hearing: P. E. Kovas, President of the Lithuanian Radio and Television Association, R. Pakalnis, Chairperson 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’s 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. A group of members of the Seimas, the petitioner, request an investigation into 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 it impugns. 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 its wording of 29 August 2000 (with subsequent amendments and supplements), and its Article 31 was set forth in its 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 of broadcasting 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’s 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’s 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’s 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’s 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’s 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 before, prescribed: “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 before, prescribed: “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” should 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) should 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 legislature 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 law—he had to do this by 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 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’s 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 prescribed that “the LRT financing procedure established in this law shall come into force on 1 January 2002”; the Republic of Lithuania’s 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 prescribed that “the LRT financing procedure established in this law shall come into force on 1 January 2003”; the Republic of Lithuania’s 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 prescribed that “the LRT financing procedure established in this law shall come into force on 1 January 2004”; the Republic of Lithuania’s 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 prescribed that “the LRT financing procedure established in this law shall come into force on 1 January 2005”; the Republic of Lithuania’s 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 prescribed 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’s 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 implies, inter alia, 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 (the Constitutional Court’s rulings of 13 December 2004 and 29 September 2005). Otherwise, opportunities to subjects of law to learn what law demands would be worsened (the Constitutional Court’s 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, should be regarded as deficient as well.

It should also be mentioned that, as has been held in this ruling of the Constitutional Court, 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 prescribed 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 prescribed 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 programmes—to 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 holidays—16 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 Programme—18 hours per 24-hour period and Third Programme—12 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 the elections for the candidates to the post of the President of the Republic, for political parties and candidates thereof to the Seimas or municipal council membership in accordance with the conditions and procedure established by means of the laws on elections of the President of the Republic, elections to the Seimas and elections to 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 law (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 against inserting 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 for other radio and television stations against operating through the channels used by LRT without a 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 on applying 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 its wording of 28 March 2000) of the Law on Provision of Information to the Public for a six-year term from 12 persons—public, 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 members—by 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 Chairperson 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 release his assistants (Item 18 of Paragraph 1 of Article 10). It was also prescribed 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 prescribed 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) prescribed 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 account of its activity to the public in the press annually, while the LRT Council chairperson 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 prescribed 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 before, 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’s 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, prescribed 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 before, 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’s 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’s 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’s 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 impugned 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 impugned 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 on 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 impugned by the group of members of the Seimas, the petitioner, in the constitutional justice case at issue), and prescribed 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 established—the 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 impugned 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). It should also be noted 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, the 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 impugned 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 means of 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’s 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 before, 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 law (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 on broadcasting 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 prescribed 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 prescribed 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 should be linked with the abandoning of the intention (which is discussed in this ruling of the Constitutional Court) 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 legislature to increase allocations from the State Budget to the LRT.

7.7. As mentioned before, 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 regulation—the 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 for other radio and television stations against operating through the channels used by LRT without a 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 impugned 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 prescribes 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 of funding 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 before, 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 prescribed 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 prescribed 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 impugned 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’s 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’s 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 Programmes—the 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’s 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 prescribed 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’s 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’s 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’s 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’s 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’s 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’s 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’s 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’s 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’s 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’s 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 impugned by the group of members of the Seimas, the petitioner, inter alia, prescribed:

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 law and other legal act, 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 the 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’s 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’s 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’s 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’s 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’s 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’s 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’s 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’s 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’s 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’s 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 impugned by the group of member of the Seimas, the petitioner.

It was, inter alia, prescribed 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 above-mentioned 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 the 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 the 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 means of 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’s 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 impugned 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 impugned 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, it should be noted 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’s 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’s 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 above-mentioned 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 means of 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’s 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, it should be noted 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 prescribed 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 prescribed 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 impugn 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 before, the petitioner impugns 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. In addition, the relations that are 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), should not be regarded as a matter of 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), the financing of television programmes’ broadcasting, the 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 force is), save the Constitution itself (the Constitutional Court’s 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 should 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 ECtHR) 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’s 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 regulates, inter alia, 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 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 subjects-providers of transmission services, which use radio frequencies, to broadcast programmes important to society, i.e. to allow making 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 judgment in Case No. C-280/00 Altmark Trans GmbH and Regierungspräsidium Magdeburg v. Nahverkehrsgesellschaft Altmark GmbH and Oberbundesanwalt beim Bundesverwaltungsgericht (arrêt 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 should not be regarded 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 judgment in Case No. T-46/97 SIC-Sociedade Independente de Comunicação SA v. Commission of the European Communities (arrêt du Tribunal de première instance (première chambre élargie) SIC-Sociedade Independente de Comunicação 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 ECtHR adopted a judgment in the case Radio ABC v. Austria (Cour eur. D. H., arrêt Radio ABC c. Autriche du 20 octobre 1997, Recueil des arrêts 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 judgment which was adopted by the ECtHR on 21 September 2000 in the case Tele 1 Privatfernsehgesellschaft mbH v. Austria (Cour eur. D. H., arrêt 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 that would have allowed granting a licence for other persons to establish and use a certain other broadcasting station and to receive frequencies, and not only for 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 ECtHR adopted a judgment in the case VgT Verein gegen Tierfabriken v. Switzerland (Cour eur. D. H., arrêt VgT Verein gegen Tierfabriken c. Suisse du 28 juin 2001, N˚ 24699/94). It was held therein that the prohibition against 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 ECtHR adopted a judgment in the case Demuth v. Switzerland (Cour eur. D. H., arrêt 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 the broadcasting of advertising.

V

1. In the constitutional justice case at issue the petitioner impugns 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 impugned 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 later—in 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 the 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 prescribed 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 prescribed 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 the 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 Soviet Socialist Republic (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 institutions—its 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 later—in France, Germany and other states; in Italy, the legal provisions establishing the monopoly of local broadcasters had not been amended until they were ruled to be 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 broadcasting—they 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 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, it should be mentioned that an analogous establishment of radio communications supervision—the Federal Radio Commission—had 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 the 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 the 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 prescribed in Item 4 of the said resolution of the Soviet of Ministers of the Lithuanian SSR, inter alia, 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’s 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 the Resolution (No. I-60) “On the Board of the Lithuanian Radio and Television” in which it was prescribed 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 the Resolution of the Supreme Council (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 the 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, prescribed, inter alia, 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 the restoration of the independent State of Lithuania and the 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 (the Constitutional Court’s 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 the 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, not only political and legal, but also economic preconditions occurred for operating private (commercial) radio and television broadcasters. In this context, one should mention the 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 the 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 broadcaster—such used to be the Lithuanian Radio and Television—to 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’être of the public broadcaster is to ensure the public interest—the interest of society to be informed—which 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 (the Constitutional Court’s rulings of 19 September 2005 and 29 September 2005). It is an innate freedom of the human being (the Constitutional Court’s 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 (the Constitutional Court’s 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 an actual possibility of formulating 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 (the Constitutional Court’s 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 (the Constitutional Court’s rulings of 19 September 2005 and 29 September 2005). A duty for the legislature stems from the Constitution to legislatively establish the legal regulation which would enable one to prevent the dissemination of disinformation (the Constitutional Court’s 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 that disseminates information has to observe the restrictions established by law, and must not 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 of limiting 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 on 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 limiting 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 law (the Constitutional Court’s 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 an 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 (the Constitutional Court’s 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 against publicising received or acquired confidential information etc. (the Constitutional Court’s 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 and unlawful manner, then, alongside, his honour and dignity are encroached upon (the Constitutional Court’s 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, it should be emphasised 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 (the Constitutional Court’s 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 (the Constitutional Court’s 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 (the Constitutional Court’s ruling of 13 February 1997). It needs to be emphasised that the state as the common good of the entire society (the Constitutional Court’s 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 things 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 legislature has a duty to establish the guarantees of mass media freedom by means of a law, stems from the Constitution (the Constitutional Court’s 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 before, 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 should be construed in the context of the prohibition on monopolising the market, which is consolidated in Paragraph 4 of Article 46 of the Constitution) must be applied not only to the state (its institutions), but also to all other persons. Thus, the legislature 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 legislature 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, it should be mentioned that, as the Constitutional Court has held, freedom of mass media also implies freedom of electronic mass media (the Constitutional Court’s ruling of 19 September 2005). When relations linked with the 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 should 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 (the Constitutional Court’s 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 against monopolisation of the production of radio and television programmes, as well as dissemination of information”. This prohibition, as mentioned before, should also be applied to the state (its institutions) and all other persons.

Thus, under the Constitution, the 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 for violating 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 legislature has the 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 legislature 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 should be related with special obligations and responsibility. The specific character of radio and television as a means of mass media increases this responsibility even more. As mentioned before, 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 importance—the material and spiritual creative activity and its results that should 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 the 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 the 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, it should be mentioned 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 (the Constitutional Court’s 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 the equality of 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 the 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 the 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 broadcaster—it 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 of controlling 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 subject—the 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 for the public broadcaster from the Constitution, which are determined by the peculiarities of the public broadcaster in comparison with other—private (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 ruling of the Constitutional Court that the raison d’être of the public broadcaster is to ensure the public interest—the 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 it 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 the 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 implies, inter alia, 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 declared 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, and civil society” (the Constitutional Court’s 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, therefore, his or an editor’s demands and directions concerning the content of information, as well as decisions in regard with the possibility of its dissemination etc., 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 (the Constitutional Court’s 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 the persons who do so to participate in its programmes or broadcasts. The legislature has a duty to consolidate the right to react which could be used effectively by the human being about whom disinformation was disseminated (which could violate his dignity as well) in the programmes or broadcasts of the public broadcaster (or other broadcasters), in denying untrue information (facts).

19. As mentioned before, 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, it should be mentioned 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 state—the civil Nation” (the Constitutional Court’s ruling of 8 July 2005).

20. It should also be emphasised that 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 language—a constitutional value—is 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 for 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—the 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 a 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 particular—private or group—interests (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 the objective that the dissemination of the information broadcast by it 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 community—the civil Nation—to 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 its 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 its 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 state 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. The 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) broadcasters—the 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 a 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 a 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 different—it 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’être 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 a 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 before, 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 ruling of the Constitutional Court 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 before, 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 (the Constitutional Court’s ruling of 8 July 2005).

In this context, it should also be noted that the legislature 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 legislature enjoys broad discretion to choose the financing model of the LRT as the public broadcaster. When doing so, the legislature 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 financing—either 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 before, 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 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 legislature. Under the Constitution, the legislature has the 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, the legislature 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 (the Constitutional Court’s rulings of 14 January 2002 and 8 July 2005) and that in case the functions of the state are transferred by law 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 (the Constitutional Court’s rulings of 24 December 2002 and 8 July 2005). It was held in the Constitutional Court’s 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 the fully-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 state—establishments, enterprises and organisations; it stems from the Constitution that if the legislature has established a certain institution which is entrusted with discharging a certain state function or functions, it must provide also the sources of its financing, it 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” (the Constitutional Court’s 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 “the legislature, 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 legislature 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” (the Constitutional Court’s 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. However, it also needs to be stressed 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 the said policy”. It was also held in the same ruling of the Constitutional Court that “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 due process of law which stems from the Constitution and the principles of a state under the rule of law, of the separation of powers, of responsible governance, of the protection of legitimate expectations and the principles of legal clarity, legal certainty and legal 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 legal force, 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 subjects should 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 has been held in this ruling of the Constitutional Court, 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 should be construed as also implying that the legislature, when implementing its 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 legislature 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 legislature 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 state—establishments, 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 the 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 before, 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 impugned in this constitutional justice case is in conflict).

However, it needs to be emphasised that there are not any constitutional arguments which would permit asserting 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 for the LRT to broadcast advertising and to receive funds from it, in itself violates the constitutional clause of fair competition, the constitutional principle of the equality of 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 information—a special kind of information, and that advertising is an important means of competition (the Constitutional Court’s rulings of 13 February 1997, 26 January 2004 and 29 September 2005). By means of the advertising of goods and services, irrespective of whether or not this activity is charged, it is always sought to induce, either directly or 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 (the Constitutional Court’s 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 on 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 legislature, it is not useful to the people, although it is not harmful to them. Selective limitation on 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 (the Constitutional Court’s ruling of 29 September 2005).

30.4. In the context of the constitutional justice case at issue it needs to be noted that the legislature may also establish such legal regulation whereby it would limit the 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 on broadcasting advertising on certain days or at a certain time of the day, prohibitions on advertising certain goods or services, prohibitions on broadcasting advertising in certain programmes or broadcasts (in relation to their content or according to the audience), prohibitions on broadcasting political advertising etc.

The legislature may even prohibit broadcasting 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. In addition, in such a special situation the legislature must ensure the 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 before, 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 for 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 over this broadcaster.

Such control over 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 over 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 over the activity of the national public broadcaster cannot be understood as a mere financial or property audit. Such control must also include the control over 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 of broadcasting 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 law.” 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 prescribed: “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 of broadcasting 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, impugns 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 the broadcasting of advertising, which are established in the said paragraphs, is not impugned 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, impugns 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 prescribed 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 impugned 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, impugns 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 prescribed 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 impugned in this constitutional justice case.

5. Article 46 of the Constitution provides, inter alia, 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 impugned 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 ruling of the Constitutional Court:

the LRT, as the national public broadcaster, must carry out a special constitutional mission—to ensure a public interest—i.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 legislature has the discretion to choose a model of the 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 legislature;

the legislature may establish, by means of a law, that advertising is permitted in programmes and broadcasts of the national public broadcaster, as well as it 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 legislature may not only establish limitations on the broadcasting of advertising in programmes and broadcasts of the national public broadcaster, but also prohibit, by means of a law, the 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 legislature must ensure the 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 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 over 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 has also been held in this ruling of the Constitutional Court that there are not any constitutional arguments which would permit asserting 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 for the LRT to broadcast advertising and to receive funds for it, in itself violates the constitutional clause of fair competition, the constitutional principle of the equality of rights of persons, and other provisions of the Constitution.

The same could be said about the relation of the impugned 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’s 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, the conclusion should be drawn 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 of broadcasting 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, it should be noted that the impugned 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 ruling of the Constitutional Court 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 of broadcasting 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, the conclusion should be drawn 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 impugned 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 impugned 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 ruling of the Constitutional Court 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, it should be held that there are not any constitutional arguments would permit asserting 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 the equality of rights of persons which is established in it, or the imperatives of fair competition.

6. Taking account of the arguments set forth, the conclusion should be drawn 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 before, 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, the conclusion should be drawn 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 gives 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’s 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 of broadcasting 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’s 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 pronounced 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