The burden of proof regarding compliance with the conditions for granting an exemption from the quota for Slovak musical works in the broadcast of a radio programming service rested with the broadcaster

The Supreme Administrative Court of the Slovak Republic, by its judgment Case No. 4Svk/2/2026 of March 19, 2026, quashed the judgment of the Administrative Court in Bratislava (hereinafter referred to as the “Administrative Court”) regarding the refusal to grant an exemption from the quota for Slovak musical works in the radio program service and remanded the case for further proceedings. The Supreme Administrative Court stated that if the broadcaster intended to broadcast a smaller share of Slovak musical works within the program service than prescribed by law, it was obliged to sufficiently demonstrate the justification for granting the exemption, particularly with reference to the distinct orientation of the program service, which precludes the fulfilment of the mandatory quota. 

The broadcaster of the radio program service requested an exemption pursuant to Act No. 308/2000 Coll. and requested the Council for Media Services to decide that the obligation to reserve a minimum share of Slovak musical works in the broadcasting of the radio program service and the obligation to reserve a minimum share of new Slovak musical works in its broadcasting do not apply to the given program service for the radio station, given that the determination of the relevant share of Slovak musical works is completely precluded with reference to the orientation of the program service. The Council for Media Services rejected the request. 

The broadcaster filed an administrative action against the Council for Media Services’ decision, and the administrative court ruled to overturn the Council’s decision on the grounds that it lacked sufficient justification. The Administrative Court pointed out that, following the submission of an application for an exemption, it is the administrative authority’s duty to assess the focus of the broadcaster’s programming service and determine whether this focus precludes the inclusion of Slovak musical works in the radio programming structure. According to the Administrative Court, the fact that the burden of proof in the application in question rests with the applicant for the exemption (the broadcaster of the radio programming service) does not relieve the Council for Media Services of its obligation to reliably ascertain the facts of the case; however, the Council for Media Services failed to do so and did not determine whether the determination of the proportion of Slovak musical works is entirely precluded by the focus of the radio programming service. 

The Council for Media Services filed a cassation complaint against the administrative court’s ruling. The Cassation Court did not agree with the administrative court’s conclusions. According to the Cassation Court, the Council for Media Services’ decision was clear, comprehensible, and properly reasoned. The Council for Media Services established the facts of the case and addressed all relevant circumstances. Under Act No. 308/2000 Coll., which was in effect at the time, a licensed broadcaster was required to allocate at least 25% of its music broadcast time per calendar month to Slovak musical works; by law, the broadcaster was also required to allocate at least 35% of its music broadcast time per calendar month to Slovak musical works and to allocate at least 20% of that time to the broadcast of new Slovak musical works. These obligations did not apply to the broadcasting of a radio programming service if the Council for Media Services determined that the designation of a share of Slovak musical works was entirely excluded from the focus of the programming service. 

In the opinion of the Court of Cassation, the Council for Media Services sufficiently explained that Act No. 308/2000 Z. z. permitted the granting of an exemption from the obligation under Section 28b(1) and Section 28b(4) of Act No. 308/2000 Z. z. only if compliance is completely impossible given the nature of the broadcaster’s programming service. The very term “completely impossible” suggests that these are situations where the nature of the programming service objectively prevents the fulfilment of the obligations established by law. Such cases typically concern, in particular (though not exclusively), programming services with a specific thematic or linguistic focus, such as broadcasts intended for national minorities or broadcasts focused on a specific musical genre or production. It was the broadcaster’s responsibility to present clear evidence and demonstrate the existence of circumstances that objectively prevent it from fulfilling the statutory obligation. However, the broadcaster did not cite any such facts that would demonstrate that including Slovak productions in the programming to the extent required by law was not objectively possible and therefore entirely out of the question. The broadcaster’s argument that it primarily broadcasts “hits”, or popular music, does not hold up, according to the Cassation Court, and this statement cannot serve as a basis for granting an exemption. If such a justification were sufficient, according to the Cassation Court, it would mean that the broadcaster’s programming preferences alone could automatically lead to the granting of an exemption from the statutory obligation, which would be contrary to the very purpose of the legal regulation aimed at supporting Slovak musical works as part of the cultural heritage in accordance with Article 44(2) of the Constitution of the Slovak Republic. 

The Cassation Court assessed the scope and grounds of the cassation complaint in relation to the contested judgment of the administrative court, set aside the administrative court’s judgment, and remanded the case to it for further proceedings. 

This judgment was adopted unanimously by the Supreme Administrative Court; no further appeal is admissible against it. 

This decision was rendered by Panel No. 4 of the Supreme Administrative Court, composed of: President of the Panel JUDr. Monika Valašiková, PhD., LL.M. (Judge-rapporteur) and Judges Prof. JUDr. PhDr. Peter Potásch, PhD., and JUDr. Vlastimil Pavlikovský.