U-I-26/17, U-I-87/16, U-I-105/16

Reference no.:
U-I-26/17, U-I-87/16, U-I-105/16
ECLI:
ECLI:SI:USRS:2019:U.I.26.17
Abstract:
The principle of the clarity and precision of regulations is one of the principles of a state governed by the rule of law referred to in Article 2 of the Constitution. If laws and other regulations are unclear, there exists a possibility of different application of the laws and other regulations and of arbitrary conduct by state authorities or other bodies vested with public authority that decide on the rights of individuals. A clear law with a precise meaning ensures that the addressees of legal rules are not exposed to a level of unpredictability and uncertainty as to the legal consequences of their actions or the omission thereof that is constitutionally untenable and unacceptable. It is not constitutionally admissible to eliminate the incomprehensibility and lack of clarity of laws by clear and comprehensive implementing regulations. A statutory provision that, following the application of all relevant methods of interpretation, is found to be impossible to implement in concrete cases can also be deemed unconstitutional and indefinite. The Constitutional Court abrogated the first paragraph of Article 86 and the first to fifth paragraphs of Article 86a of the Mass Media Act in the part that applies to private radio stations due to their inconsistency with the principle of the clarity and precision of regulations determined by Article 2 of the Constitution.
 
[The text published below is a summary prepared for the annual report.]
 
Mandatory Slovene Music Quotas
 

Upon a request of the National Council and petitions of listeners of private radio stations, a music editor at a private radio station, a private radio station, and a partner in a private radio station, by Decision No. U-I-26/17, U-I-87/16, U-I-105/16, dated 24 October 2019 (Official Gazette RS, No. 67/19), the Constitutional Court decided on the constitutionality of the provisions of the Media Act that determined the mandatory shares of Slovene music on the playlists of radio stations. In light of the petitioners’ allegations, the Constitutional Court deemed that they in fact challenged the statutory provisions insofar as they apply to private radio stations. The challenged statutory provisions determined that at least 20% of all the music played daily during any radio or television programme had to be Slovene music, i.e. music produced by Slovene artists and performers. This quota had to be ensured during the broadcast period between midnight and 6 a.m., the broadcast period between 6 a.m. and 6 p.m., and the broadcast period between 6 p.m. and midnight. At least 70% of this quota had to consist of music that is performed exclusively or to a predominant extent in the Slovene language, with the exception of radio or television programmes that predominantly broadcast instrumental music. At least one quarter of the Slovene music quota had to consist of Slovene music first broadcast no more than two years ago, i.e. new music.

 

In light of the allegations of the applicant and the petitioners, the Constitutional Court reviewed the regulation from the perspective of the principle of the clarity and substantive precision of regulations as one of the principles of a state governed by the rule of law (Article 2 of the Constitution). The applicant and the petitioners highlighted alleged ambiguities, inconsistencies, and internal contradictions as to the following terms: (a) “Slovene music”, (b) “music produced by Slovene artists or performers”, and (c) “music performed exclusively or to a predominant extent in the Slovene language”. They further drew attention to the fact that the challenged provisions were practically impossible to apply. If laws are unclear, there exists a possibility of different application of the laws and of arbitrary conduct by state authorities or other bodies vested with public authority that decide on the rights of individuals. A regulation is unconstitutionally unclear if its content cannot be construed through established methods of interpretation, and not simply because it does not answer all questions that may arise in the course of its application in practice. A law thus fulfils the requirements of clarity and substantive precision if on its basis the conduct of authorities entrusted with its implementation (or with supervising how it is applied by its addressees) can be predicted with sufficient precision. Such ensures that the addressees of legal rules are not exposed to a level of unpredictability and uncertainty as regards the legal consequences of their actions or the omission thereof that is constitutionally untenable and unacceptable. If, even after having applied all relevant methods of interpretation, the application of a statutory provision would prove practically impossible (meaning that its addressees could not comply with it, not even hypothetically speaking), such provision can be reproached for being unconstitutionally unclear and substantively imprecise.

 

The Constitutional Court first considered the terms “Slovene music”, “music of Slovene origin”, and “music produced by Slovene artists or performers”. The Constitutional Court deemed that it is evident that in order to be classified as a “Slovene” piece of music it is decisive that such piece of music is the product of Slovene artists or performers. However, what does “Slovene” mean? In general linguistic use, the word “Slovene” designates a member of the Slovene nation. In the opinion of the Constitutional Court, however, the criterion of nationality cannot serve as an argument in support of the clarity and substantive precision of the law, as such a criterion would namely be unconstitutional. A system of mandatory Slovene music quotas based exclusively on ethnic affiliation would require (a) the mass collection of data on the national affiliation of a high number of artists, frequently on the basis of unreliable conclusions drawn from personal names or other (unclear) circumstances, and, following the acquisition of such, (b) the classification of musical works for the purpose of including them in the mandatory quota according to the artists’ nationality, which would indirectly affect artists’ freedom of artistic expression (Article 59 of the Constitution) as well as their exercise of economic initiative (the first paragraph of Article 74 of the Constitution). Furthermore, such a system would be unacceptable from the perspective of the prohibition of discrimination (the first paragraph of Article 14 of the Constitution). The law could also be interpreted in the sense that “Slovene” artists and performers are natural persons who are substantively rooted in the Slovene material and spiritual environment or who can demonstrate a certain (relatively) permanent and strong connection with the Slovene cultural space. However, this method evidently was not chosen in administrative practice, and the statutory text does not provide points of reference to make reliable conclusions to this end.

 

The Constitutional Court then considered the question of how the term “music performed exclusively or to a predominant extent in the Slovene language” should be interpreted. Private radio stations namely had to fill 70% of the prescribed mandatory quota (i.e. a total of 14% of all the music they played) with music performed (at least) to a predominant extent in the Slovene language. This obligation did not apply to private radio stations that predominantly broadcast instrumental music. The Constitutional Court held that it is not clear how the statutory term radio programmes (of private radio stations) “that predominantly broadcast instrumental music” should be interpreted. It is thus not clear how the circle of entities to whom the exemption from broadcasting music in the Slovene language applies should be determined. The text of the law namely does not provide a sufficient basis for choosing between two equally likely interpretations. As regards the term “music performed exclusively or to a predominant extent in the Slovene language”, the Constitutional Court held that it can be interpreted. The purpose of the statutory regulation is to ensure that the predominant part of the lyrics of a musical work is in the Slovene language, with two potential criteria, i.e. (a) the ratio between the number of words or phrases in Slovene and the number of words or phrases in another language, or (b) the time during which lyrics are recited or sung in Slovene compared to the entire length of the piece.

 

The Constitutional Court established that linguistic interpretation does not enable the meaning of the challenged provisions to be construed in their entirety. Furthermore, the meaning cannot be established by other potentially available methods of interpretation of legal rules, such as historical or teleological interpretation. The legislative materials did not address the considered open issues, and the ambiguities could further not be remedied in light of the purpose of the law (i.e. the preservation of Slovene national and cultural identity, the protection and promotion of Slovene music, and the protection of the Slovene language). Therefore, the Constitutional Court abrogated the challenged provisions of the Media Act insofar as they applied to private radio stations.

 

 
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Document in PDF:
Type of procedure:
review of constitutionality and legality of regulations and other general acts review of constitutionality and legality of regulations and other general acts
Type of act:
statute statute
Applicant:
National Council
Date of application:
10.02.2017
Date of decision:
24.10.2019
Type of decision adopted:
decision
Outcome of proceedings:
establishment – it is not inconsistent with the Constitution/statute annulment or annulment ab initio rejection
Document:
AN03977