Court Procedure Act, first assesses whether a rule is relevant, i.e. whether the court actually had to apply
rules that were declared unconstitutional.
17. The Minister of Justice asserts that § 51 of the REA is not relevant because the court could not switch
over from an annulment action to a declaratory action (see para. 10.1). The Chamber does not agree with this
position. The action lodged by A. Talvik with Tallinn Administrative Court shows that he sought annulment
of the precept and a check of the constitutionality of the underlying legal provision. Even if concluding that
the administrative court should have formally amended the subject-matter of the proceedings and explained
to the applicant the avenues of complaint available to him, in the course of adjudicating the subsequent
declaratory action the court should also have adjudicated the applicant’s application to assess the
constitutionality of § 51 of the REA. Thus, the opinion by the Minister of Justice does not bar the
admissibility of constitutional review.
18. In line with § 14(2) of the Constitutional Review Court Procedure Act, in certain cases a decision on the
relevance of a provision also requires assessment of whether the court that initiated specific constitutional
review had correctly interpreted the legal provision that was declared unconstitutional, as well as provisions
prescribing the conditions for and extent of applying the provision that was declared unconstitutional (see,
e.g., Supreme Court Constitutional Review Chamber judgment of 18 May 2015 in case No 3-4-1-14-15,
para. 34). In the instant case, in order to decide on the relevance of § 51 of the REA, it is necessary to assess
whether the name of A. Talvik and the domain name constitute political outdoor advertising within the
meaning of the Riigikogu Election Act. For this, it is necessary to interpret the concept of political outdoor
advertising in the Riigikogu Election Act in combination with the Advertising Act (AdA).
19. Under § 1(3) of the Advertising Act, the AdA also applies in respect of advertising regulated in other
Acts insofar as no specifications are contained in the other Acts. A specific provision of this kind within the
meaning of the Advertising Act is also § 51 of the AdA dealing with political outdoor advertising. The
Riigikogu Election Act does not define what constitutes advertising or political advertising within the
meaning of that Act, nor does it contain any other distinctions with regard to that type of advertising. The
REA only gives rise to a prohibition on political outdoor advertising during active campaigning. Thus, when
giving substance to the concept of political outdoor advertising contained in § 51 of the REA, the definition
of advertising laid down in the AdA should serve as guidance. In the opinion of the Chamber, in order to
assess the conformity of information with the identifying characteristics of political outdoor advertising, it
should first be decided whether the case involves advertising within the meaning of the Advertising Act at
all. Information which does not constitute advertising cannot be seen as political outdoor advertising either.
20. Under § 2(1) cl. 3) of the AdA, advertising means information which is made public in any generally
perceived form for a charge or without charge for the purpose of increasing the provision of services or the
sale of goods, promoting an event or directing the conduct of a person in public interests. The concept of
“outdoor advertising” is defined in § 2(1) cl. 8) of the AdA as advertising located in a public place or
advertising which can be observed from a public place.
21. Section 2(2) of the AdA excludes certain information from the definition of advertising. The purpose of
that provision is to exclude from the scope of the Advertising Act information which may at first sight seem
to be advertising but which is nevertheless not deemed to be advertising. For example, under § 2(2) cl. 4) of
the AdA, marking a vehicle used in the business or professional activities of a person with their name,
contact details, trade mark, domain name and area of activity is not deemed to be advertising. It is important
to keep in mind that the PBGB issued a precept to A. Talvik with an instruction to remove only the domain
name “talvik.ee” and the photograph/image of A. Talvik from the car in his possession, as these specifically
enabled association of the domain name and the family name contained in it with the person of A. Talvik.
However, under § 2(2) cl. 4) of the AdA the information displayed on the vehicle used by A. Talvik and
indicated in the precept of the PBGB does not constitute advertising if the vehicle was used in the person’s
business or professional activity. Therefore, next it is necessary to answer the question whether standing as a
candidate in an election could also be interpreted as the candidate’s business and professional activity within
the meaning of § 2(2) cl. 4) of the AdA.