Lietuviškai
THE CONSTITUTIONAL COURT OF
THE REPUBLIC OF LITHUANIA
R U L I N G
On the compliance of 18 July 1997 Government of
the Republic of Lithuania Resolution No. 777 "On
Partial Amendment of 3 February 1994 Government of
the Republic of Lithuania Resolution No. 77 'On
the Regulation of Pricing', as well as Partial
Amendment or Recognition as Null and Void of the
Resolutions of the Government of the Republic of
Lithuania Connected with Price Establishment for
Heat Energy, Electric Energy and Natural Gas" with
the Republic of Lithuania Law "On the Procedure of
Promulgation and Enforcement of the Laws and Other
Legal Acts of the Republic of Lithuania"
Vilnius, 25 March 1998
The Constitutional Court of the Republic of Lithuania,
composed of the Justices of the Constitutional Court Egidijus
Jarašiūnas, Kęstutis Lapinskas, Zigmas Levickis, Augustinas
Normantas, Vladas Pavilonis, Jonas Prapiestis, Pranas Vytautas
Rasimavičius, Teodora Staugaitienė, and Juozas Žilys,
the secretary of the hearing-Daiva Pitrėnaitė,
the petitioner-Česlovas Juršėnas, a Seimas member, the
representative of a group of Seimas members,
the party concerned-Anicetas Ignotas, an adviser to the
minister of economy, the representative of the Government,
pursuant to Part 1 of Article 102 of the Constitution of
the Republic of Lithuania and Part 1 of Article 1 of the Law on
the Constitutional Court of the Republic of Lithuania, on 12
March 1998 in its public hearing conducted the investigation of
Case No. 12/97 subsequent to the petition submitted to the
Court by the petitioner-a group of Seimas members-requesting to
investigate if 18 July 1997 Government of the Republic of
Lithuania Resolution No. 777 "On Partial Amendment of 3
February 1994 Government of the Republic of Lithuania
Resolution No. 77 'On the Regulation of Pricing', as well as
Partial Amendment or Recognition as Null and Void of the
Resolutions of the Government of the Republic of Lithuania
Connected with Price Establishment for Heat Energy, Electric
Energy and Natural Gas" was in compliance with the Republic of
Lithuania Law "On the Procedure of Promulgation and Enforcement
of the Laws and Other Legal Acts of the Republic of Lithuania".
The Constitutional Court
has established:
I
The petitioner-a group of Seimas members-appealed to the
Constitutional Court with a petition requesting to investigate
whether 18 July 1997 Government of the Republic of Lithuania
Resolution No. 777 "On Partial Amendment of 3 February 1994
Government of the Republic of Lithuania Resolution No. 77 'On
the Regulation of Pricing', as well as Partial Amendment or
Recognition as Null and Void of the Resolutions of the
Government of the Republic of Lithuania Connected with Price
Establishment for Heat Energy, Electric Energy and Natural Gas"
(Official Gazette Valstybės žinios, No. 69-1760, 1997) was in
compliance with the Republic of Lithuania Law "On the Procedure
of Promulgation and Enforcement of the Laws and Other Legal
Acts of the Republic of Lithuania".
The petitioner grounds his request on these arguments.
Item 2.3 of 18 July 1997 Government Resolution No. 777
provides that "after the new pricing procedure for energy
resources goes into effect, the suppliers of electric energy,
central heating, hot water and natural gas must establish new
prices for energy resources from 1 July 1997". This disputed
resolution was published in the official gazette Valstybės
žinios on 23 July 1997, while it went into effect on 24 July
1997 under Article 8 of the Law "On the Procedure of
Promulgation and Enforcement of the Laws and Other Legal Acts
of the Republic of Lithuania". Thus retroactive, i.e., backward
validity of 23 days of the disputed resolution is to be pointed
out.
The petitioner indicates that by Item 3 eight Government
resolutions whereby prices had been regulated and which were
adopted in 1995-1997 were recognised either entirely or partly
null and void. The petitioner is of opinion that the abrogated
resolutions became null and void after the disputed resolution
had come into force, i.e. on 24 July 1997. Thus, on 1-23 July
1997 in Lithuania there existed both the old and new prices at
the same time.
The petitioner points out that the departmental acts
regarding the implementation of the disputed resolution
appeared later. Decree No. 235 of the Ministry of Economy of
the Republic of Lithuania "On the Prices for Energy Resources"
whereby the old prices were abolished was adopted on 22 July
1997 (by implementing the disputed Government resolution which
still was not valid), while it was published in Valstybės
žinios on 25 July 1997. The said decree prescribed that the new
prices "became valid from 1 July 1997 under the procedure
established by the Government". Decisions No. 13-21 of the
State Commission for Control over Prices of Energy Resources
and Energy Activities concerning the new prices for various
regions of Lithuania were published in Valstybės žinios on 1
August 1997. Therein it was indicated every time that the new
prices "shall become valid under the procedure established by
the Government", i.e. from 1 July 1997.
The petitioner also notes that the disputed resolution was
passed conforming to the 17 June 1997 Law "On the Amendment of
Article 5 of the Law 'On the Reorganisation of the Special
Purpose Joint-stock Company Lietuvos Energija and the Transfer
of the Heating Complex and Its Keeping to the Local
Governments'" which went into effect on 4 July 1997. Therefore
it became impossible to the Government to accomplish the
provision of this law stipulating that "the new prices for heat
energy and hot water must be established until 1 July 1997".
However, in the opinion of the petitioner, this does not mean
that the Government was entitled to establish the retroactive
validity of the disputed resolution due to which the life of
the people of Lithuania has become more difficult as from 1
July 1997 the prices for heat energy, hot water and other
energy resources were much increased.
II
The representative of the party concerned, in the course
of preparation of the case for the Constitutional Court
hearing, explained in writing that the disputed resolution was
adopted by implementing the Law "On the Amendment of Article 5
of the Law 'On the Reorganisation of the Special Purpose
Joint-stock Company Lietuvos Energija and the Transfer of the
Heating Complex and Its Keeping to the Local Governments'".
Under this law, the new prices for heat energy and hot water
had to be established until 1 July 1997. Thus to accomplish
this job an unrealistic term of 13 days was provided for, as
the law itself was adopted on 17 June 1997. In the opinion of
the representative of the party concerned, it is practically
impossible to prepare a legal act directly concerning the
material interests and living standard of all the people of
Lithuania. Besides, the Regulations for the Government Work
establish the procedure of co-ordination and adoption of legal
acts prepared by the Government, while this procedure continues
for a certain period of time.
The representative of the party concerned is of opinion
that even though the aforementioned law came into force
retroactively, the Government adopted the disputed resolution
conforming to Item 2 of Article 94 of the Constitution, and
Item 2 of Article 21 of the Law on the Government of the
Republic of Lithuania, which obligate the Government to
implement laws.
III
In the course of preparation of the case for the
Constitutional Court hearing, an explanation of V. Jankauskas,
Chairman of the State Commission for Control over Prices of
Energy Resources and Energy Activities, was received wherein it
was pointed out that the adoption of the disputed resolution
had been determined by the Law "On the Amendment of Article 5
of the Law 'On the Reorganisation of the Special Purpose
Joint-stock Company Lietuvos Energija and the Transfer of the
Heating Complex and Its Keeping to the Local Governments'"
which went into effect on 4 July 1997. Meanwhile the said law
indicated that the new prices for heat energy and hot water had
to be established until 1 July 1997. The Chairman of the
Commission noted that during the deliberation upon the draft
law on the new prices the Commission was proposing that the new
energy resource prices be established from the beginning of the
new heating season, however, this was not done, therefore, when
adopting its decisions, the Commission was following the laws
and Government resolutions.
IV
In the court hearing the representative of the petitioner
reiterated the arguments set out in the petition and explicated
that one has doubts whether Item 2.3 of the disputed resolution
was in compliance with Article 8 of the Law "On the Procedure
of Promulgation and Enforcement of the Laws and Other Legal
Acts of the Republic of Lithuania".
The representative of the party concerned reiterated the
arguments set out in the explanation which had been presented
in writing and virtually recognised the validity of the request
of the petitioner.
The Constitutional Court
holds that:
1. Part 2 of Article 7 of the Constitution provides: "Only
laws which are promulgated shall be valid", while Articles 70
and 72 of the Constitution establish the procedure of
promulgation and enforcement of laws. Therefore, pursuant to
these constitutional provisions the Law "On the Procedure of
Promulgation and Enforcement of the Laws and Other Legal Acts
of the Republic of Lithuania" was passed. Article 4 of this law
stipulates: "The laws of the Republic of Lithuania shall come
into force after they have been signed and officially
promulgated in the official gazette Valstybės žinios by the
President of the Republic unless a later day of their
enforcement is established in the laws", while Article 8
whereof prescribes that "resolutions of the Government of the
Republic of Lithuania whereby legal norms are being
established, amended or recognised as null and void shall go
into effect on the next day after they have been signed by the
Prime Minister and promulgated by a respective minister in the
official gazette Valstybės žinios.
The resolutions of the Government of the Republic of
Lithuania whereby legal norms are not being established,
amended or recognised as null and void shall come into force on
the same day after they have been signed by the Prime Minister
provided a later day of their enforcement is not established in
the resolutions or decrees".
It is to be noted that an official promulgation of laws
and other legal acts is considered their publication in the
official gazette Valstybės žinios, while the day of the
promulgation is the day of issue of Valstybės žinios which is
indicated on the first page of every issue.
Corresponding provisions regarding the procedure of
promulgation and enforcement of legal acts of the Government,
ministries and other Government institutions are established in
Articles 33 and 38 of the Law on the Government of the Republic
of Lithuania.
2. The disputed resolution was adopted on 18 July 1997
pursuant to the Republic of Lithuania Law "On the Amendment of
Article 15 of the Law on Energy" of 17 June 1997, as well as
the Law "On the Amendment of Article 5 of the Law 'On the
Reorganisation of the Special Purpose Joint-stock Company
Lietuvos Energija and the Transfer of the Heating Complex and
Its Keeping to the Local Governments'" which was adopted on the
same day. This was indicated in the preamble of the said
resolution.
Until the adoption of the Law "On the Amendment of Article
15 of the Law on Energy", the Government used to confirm the
prices and rates for electric and heat energy, as well as those
for natural gas, on the proposal of the State Commission for
Control over Prices of Energy Resources and Energy Activities
(hereinafter in the ruling referred to as the Commission).
After the said law has been adopted, the prices for electric
energy, centralised heating and hot water, and those for
natural gas are being established by the suppliers upon
co-ordinating these prices with the Commission.
The Law "On the Amendment of Article 5 of the Law 'On the
Reorganisation of the Special Purpose Joint-stock Company
Lietuvos Energija and the Transfer of the Heating Complex and
Its Keeping to the Local Governments'" (which, by the way, went
into effect on 4 July 1997) points out that the new prices for
heat energy and hot water must be established until 1 July
1997.
3. Item 2.3 of the disputed Government resolution which
went into effect on 24 July 1997 provides that after the new
pricing procedure for energy resources goes into effect, the
suppliers of electric energy, central heating, hot water and
natural gas must establish the new prices for energy resources
from 1 July 1997. Thus the provision of the Law "On the
Amendment of Article 5 of the Law 'On the Reorganisation of the
Special Purpose Joint-stock Company Lietuvos Energija and the
Transfer of the Heating Complex and Its Keeping to the Local
Governments'" was thereby reiterated. Taking account of this,
the Government resolutions whereby the prices and rates for
electric energy, centralised heating and hot water, and those
for natural gas had been established and which had been
established under the former procedure of establishment of
prices for energy resources, i.e. that which had existed before
the adoption of the Law "On the Amendment of Article 15 of the
Law on Energy", were recognised as null and void by Item 3 of
the disputed resolution.
4. The legal theory states clearly that in the sphere of
legal regulation the rule lex retro non agit is in operation,
i.e. the one stating that a legal act shall not be
retroactively valid. Thus, as a rule, legal acts are not
applied to those occurred legal facts and legal effects which
had appeared before a newly adopted legal act went into effect.
The Constitutional Court has emphasised this for many a time in
its rulings (e.g., the rulings of the Constitutional Court of
16 March 1994, 21 April 1994, 15 July 1994, 1 December 1994).
The rule lex retro non agit is an important and necessary
factor to ensure the stability and firmness of law, the laws
and legal order, as well as the rights of the subjects of legal
relations, along with the trust in the legal acts adopted in
the state. The legal subject must be sure that his conduct
which is in conformity with the legal acts which are valid
then, will also be held lawful and not causing any legal
effects to him later.
It is to be noted that an exception is made in cases when,
in either criminal or administrative law, the liability is
abolished or responsibility is mitigated for a deed. Such laws
have the power of retroactive validity. This is in line with
the rule of the legal doctrine lex benignior retro agit.
It is to be presumed that an adoption of a legal act
having retroactive validity would be possible if this were
indicated by the law itself and if such a legal act did not
deteriorate the legal position of legal subjects. However, in
all cases one has to take account of the fact that after in
private law the legal position of one party of legal relations
has been improved, the position of another party, as a rule,
might deteriorate.
The Constitutional Court, analysing the problems of
retroactive validity of legal acts, has noted in respect to
Government resolutions that "the Government resolution which
has been adopted applying the norms of law and establishing
their retroactive power, in all cases is not consistent with
the law, since it interferes into the scope of law validity,
and its supremacy over executive acts is violated" (the ruling
of the Constitutional Court of 16 March 1994).
5. Item 2 of Article 94 of the Constitution provides that
the Government shall "implement laws and resolutions of the
Seimas concerning the implementation of laws, as well as the
decrees of the President of the Republic". This constitutional
provision is reiterated by Item 2 of Article 21 of the Law on
the Government. Thus, adopting its resolutions, the Government
must comply with the valid laws, and, when implementing certain
laws, it must not violate other laws. Consequently, by
implementing Article 5 of the Law "On the Reorganisation of the
Special Purpose Joint-stock Company Lietuvos Energija and the
Transfer of the Heating Complex and Its Keeping to the Local
Governments" whereby it is stipulated that the new prices for
heat energy and hot water must be established until 1 July
1997, the disputed resolution was not to disregard the
requirements of Article 8 of the Law "On the Procedure of
Promulgation and Enforcement of the Laws and Other Legal Acts
of the Republic of Lithuania". In addition, one is to note that
under Article 15 of the Law on Energy, the issues of pricing in
the energy sector fall under the competence of the State
Commission for Control over Prices of Energy Resources and
Energy Activities but not that of the Government.
Item 2.3 of the disputed Government resolution is to be
assessed as one among other legal grounds on which the
Commission was basing itself when it established new, higher
prices for energy resources by its Resolutions No. 13 and 14 of
22 July 1997, Resolutions No. 15 and 16 of 23 July 1997,
Resolutions No. 17 and 18 of 28 July 1997, Resolution No. 19 of
28 July 1997, and Resolutions No. 20 and 21 of 29 July 1997.
These resolutions of the Commission were published in the
official gazette Valstybės žinios on 1 August 1997. In deciding
the question of the enforcement of the said resolutions of the
Commission, one has to conform to Article 10 of the Law "On the
Procedure of Promulgation and Enforcement of the Laws and Other
Legal Acts of the Republic of Lithuania". The said article
provides that "the legal acts issued by the Lithuanian Bank,
ministries, departments and Government offices as well as other
institutions of state administration whereby legal norms are
established, amended or recognised as null and void shall go
into effect on the next day following their promulgation in the
official gazette Valstybės žinios unless a later day of their
enforcement is established in the said legal acts". Thus, the
departmental acts adopted by the Commission in pursuance of
this law came into force on 2 August 1997. The said resolutions
of the Commission, however, followed the disputed Government
resolution, too, and it was indicated in the said resolutions
that the new prices for energy resources were to become
effective under the procedure established by the Government
which, in the opinion of the Commission, meant that that the
new prices for energy resources had to be applied from 1 July
1997. Likewise, Decree No. 235 of the Ministry of Economy of
the Republic of Lithuania "On the Prices for Energy Resources"
whereby the old prices for some energy resources were abolished
was also following the disputed Government resolution.
Thus, it is evident that in the departmental legal acts
Item 2.3 of the disputed Government resolution was being
followed and it was being assessed as one among other legal
grounds in establishment the retroactive application of the new
prices for energy resources.
On the grounds of the set forth above, it is to be
concluded that Item 2.3 of 18 July 1997 Government of the
Republic of Lithuania Resolution No. 777 "On Partial Amendment
of 3 February 1994 Government of the Republic of Lithuania
Resolution No. 77 'On the Regulation of Pricing', as well as
Partial Amendment or Recognition as Null and Void of the
Resolutions of the Government of the Republic of Lithuania
Connected with Price Establishment for Heat Energy, Electric
Energy and Natural Gas" contradicts Article 8 of the Law "On
the Procedure of Promulgation and Enforcement of the Laws and
Other Legal Acts of the Republic of Lithuania".
Conforming to Article 102 of the Constitution of the
Republic of Lithuania and Articles 53, 54, 55 and 56 of the Law
of the Republic of Lithuania on the Constitutional Court, the
Constitutional Court has passed the following
ruling:
To recognise that Item 2.3 of 18 July 1997 Government of
the Republic of Lithuania Resolution No. 777 "On Partial
Amendment of 3 February 1994 Government of the Republic of
Lithuania Resolution No. 77 'On the Regulation of Pricing', as
well as Partial Amendment or Recognition as Null and Void of
the Resolutions of the Government of the Republic of Lithuania
Connected with Price Establishment for Heat Energy, Electric
Energy and Natural Gas" contradicts Article 8 of the Law "On
the Procedure of Promulgation and Enforcement of the Laws and
Other Legal Acts of the Republic of Lithuania".
This Constitutional Court ruling is final and not subject
to appeal.
The ruling is promulgated on behalf of the Republic of
Lithuania.