Lietuviškai
THE CONSTITUTIONAL COURT OF
THE REPUBLIC OF LITHUANIA
D E C I S I O N
On the request of the Vilnius City Court of
District No. 2 to investigate whether Item 2 of
Government of the Republic of Lithuania Resolution
No. 271 "On the Prices for Telecommunications
Services" of 6 March 1998 is in compliance with
the Constitution of the Republic of Lithuania,
Part 1 of Article 7 of the 30 November 1995
Republic of Lithuania Law on Communications and
the provisions of Item 3 of Part 2 of Article 3 of
the 15 September 1992 Republic of Lithuania Law on
Competition
Vilnius, 9 November 1999
The Constitutional Court of the Republic of Lithuania,
composed of the Judges of the Constitutional Court Egidijus
Jarašiūnas, Egidijus Kūris, Zigmas Levickis, Augustinas
Normantas, Vladas Pavilonis, Jonas Prapiestis, Vytautas
Sinkevičius, Stasys Stačiokas, and Teodora Staugaitienė,
with the secretary of the sitting-Daiva Pitrėnaitė,
in the organisational sitting of the Constitutional Court
has discussed the request of the petitioner-the Vilnius City
Court of District No. 2-to investigate whether Item 2 of
Government of the Republic of Lithuania Resolution No. 271 "On
the Prices for Telecommunications Services" of 6 March 1998 was
in compliance with Parts 4 and 5 of Article 46 of the
Constitution of the Republic of Lithuania, Part 1 of Article 7
of the 30 November 1995 Republic of Lithuania Law on
Communications and the provisions of Item 3 of Part 2 of
Article 3 of the 15 September 1992 Republic of Lithuania Law on
Competition.
The Constitutional Court
has established:
I
On 27 March 1998, the petitioner-the Vilnius City Court of
District No. 2-was investigating a civil case pursuant to a
claim requesting to abolish Decree No. 2-t "On Changing the
Tariffs for Telecommunications Services" adopted on 29 January
1998 by the Ministry of Communications and Informatics of the
Republic of Lithuania. By its ruling the Vilnius City Court of
District No. 2 suspended the investigation of the case and
appealed to he Constitutional Court with the petition
requesting to investigate whether Item 2 of Government of the
Republic of Lithuania Resolution No. 271 "On the Prices for
Telecommunications Services" of 6 March 1998 (Official Gazette
Valstybės žinios, 1998, No. 24-617) was in compliance with
Parts 4 and 5 of Article 46 of the Constitution of the Republic
of Lithuania, Part 1 of Article 7 of the 30 November 1995 Law
on Communications (Official Gazette Valstybės žinios, 1995, No.
102-2280) and the provisions of Item 3 of Part 2 of Article 3
of the 15 September 1992 Law on Competition (Official Gazette
Valstybės žinios, 1992, No. 29-841).
II
In the course of the preparation of the case an
explanation of the representative of the party concerned J.
Ūsas, Director of the Communications Department of the Ministry
of Communication, was received wherein an opinion was set forth
that Item 2 of the disputed governmental resolution was in
compliance with Part 4 and 5 of Article 46 of the Constitution,
Part 1 of Article 7 of the 30 November 1995 Law on
Communications, and the provisions of Item 3 of Part 2 of
Article 3 of the 15 September 1992 Law on Competition.
The Constitutional Court
holds that:
1. On 30 November 1995, the Seimas adopted the Republic of
Lithuania Law on Communications. Part 1 of Article 7 of the
said law provides: "The prices and tariffs of obligatory postal
and telecommunications services provided by the enterprises
under the jurisdiction of the Ministry of Communications and
Informatics as well as of postal and telecommunications
services in the market whereof the enterprise holds a dominant
position, and the price ceiling of the principal
telecommunications services provided by other enterprises shall
be fixed by the Government". Thus the Government was obligated
by the provisions of this article to establish the state
regulation of prices for telecommunications services, i.e.
transmission of information by technical means of
telecommunications-telephone, telegraph, facsimile
communication, devices and lines of data transmission, radio
communication, radio and television broadcast and reception, as
well as other devices used for telecommunication-by these
means:
1) by fixing the prices and tariffs of obligatory
telecommunications services provided by the enterprises under
the jurisdiction of the Ministry of Communications and
Informatics as well as of telecommunications services in the
market whereof the enterprise holds a dominant position;
2) by fixing the price ceiling of the principal
telecommunications services provided by other enterprises.
2. On 6 March 1998, the Government adopted Resolution No.
271 "On the Prices for Telecommunications Services". Item 2
thereof provides: "To hold, pursuant to Article 7 of the
Republic of Lithuania Law on Communications, the internal
prices for telecommunications services approved by 29 January
1998 Decree No. 2-t "On Changing the Tariffs for
Telecommunications Services" adopted by the Ministry of
Communications and Informatics (Official Gazette Valstybės
žinios, 1998, No. 12-287) the price ceiling of the principal
telecommunications services until deliberation on the draft law
on amendment of Article 7 of the Republic of Lithuania Law on
Communications submitted by the Government of the Republic of
Lithuania in the Seimas and its going into effect; the said
draft law provides that the concrete prices for postal and
telecommunications services shall be established by the
enterprises providing these services and that they shall be
approved by the Commission for Price Supervision in Energetics,
Communications and Transport Sectors."
On adoption of such a resolution and establishment of only
the price ceiling of the internal principal telecommunications
services, the Government only in part and defectively
accomplished the provisions of Part 1 of Article 7 of the Law
on Communications, as:
1) it did not establish the price ceiling of the
international principal telecommunications services;
2) it did not take into consideration the fact that even
though the company Lietuvos telekomas which was performing in
the telecommunications market was not within the jurisdiction
of the Ministry of Communications and Informatics, the said
company, under the valid legal normative acts regulating legal
relations of competition, had the status of the enterprise
dominating in the market of telephone communication services,
nor did it fix, along with the price ceiling of the principal
telecommunications services, the concrete prices and tariffs of
telecommunications services for the dominating enterprises. It
needs to be noted that the Government, after it had established
the provision that it is entitled to fix the prices and tariffs
of telecommunications services only for the enterprises within
the jurisdiction of the Ministry of Communications and
Informatics, incorrectly accomplished the provisions of Part 1
of Article 7 of the Law on Communications establishing that the
Government is obligated to fix concrete prices and tariffs of
telecommunications services provided by all dominating
enterprises.
At the time of the adoption of the governmental resolution
the fixed telephone communication services were provided only
by the monopolist company Lietuvos telekomas, however, other
enterprises were entitled to begin to provide analogous
services. Therefore not only the prices and tariffs, which in
the governmental resolution were not fixed for the services of
dominating enterprises, but also the price ceiling for all
principal telecommunications services provided by
non-dominating enterprises must have been fixed. Thus the
Government only in part accomplished the functions of price
regulation commissioned to it by the Law on Communications.
3. It needs to be noted that the Ministry of
Communications and Informatics, adopting 29 January 1998 Decree
No. 2-t "On Changing the Tariffs for Telecommunications
Services", overstepped its competence as under the provisions
of Article 7 of the Law on Communications, only the Government
was granted the right and obligated to accomplish state
regulation of prices of telecommunications services. Such legal
regulation is defective. On the other hand, questions of the
compliance of decrees of ministries with the Constitution are
not within the jurisdiction of the Constitutional Court.
4. Item 2 of the disputed governmental resolution provided
that "To hold, pursuant to Article 7 of the Republic of
Lithuania Law on Communications, the internal prices for
telecommunications services approved by 29 January 1998 Decree
No. 2-t "On Changing the Tariffs for Telecommunications
Services" adopted by the Ministry of Communications and
Informatics (Official Gazette Valstybės žinios, 1998, No.
12-287) the price ceiling of the principal telecommunications
services until deliberation on the draft law on amendment of
Article 7 of the Republic of Lithuania Law on Communications
submitted by the Government of the Republic of Lithuania in the
Seimas and its going into effect; the said draft law provides
that the concrete prices for postal and telecommunications
services shall be established by the enterprises providing
these services <
>". Thus the said item was in effect only
temporarily, i.e. until the Law on Amendment of Article 7 of
the Republic of Lithuania Law on Communications adopted on 2
June 1998 went into effect on 19 June 1998. On 23 June 1998,
the Government adopted Resolution No. 759 "On Partial Amendment
of Government of the Republic of Lithuania Resolution No. 271
'On the Prices for Telecommunications Services' of 6 March
1998" whereby the tariff ceiling of telecommunications
obligatory services was approved. In addition, on 29 June 1998,
the Ministry of Communication of the Republic of Lithuania
adopted Decree No. 265 "On Internal and International
Telecommunications Tariffs" whereby 29 January 1998 Decree No.
2-t "On Changing the Tariffs for Telecommunications Services"
adopted by the Ministry of Communications and Informatics of
the Republic of Lithuania was abrogated.
Taking account of the fact that Item 2 of Government
Resolution No. 271 "On the Prices for Telecommunications
Services" of 6 March 1998 is not any longer in effect and
conforming to Part 4 of Article 69 and Article 28 of the
Republic of Lithuania Law on the Constitutional Court, the
Constitutional Court has adopted the following
decision:
To dismiss the initiated legal proceedings in the case.