Lietuviškai
THE CONSTITUTIONAL COURT OF
THE REPUBLIC OF LITHUANIA
R U L I N G
On the compliance of 14 January 1998 Government of
the Republic of Lithuania Resolution No. 36 "On
the Introduction of Labels of the 1998 Standard
for Marking Tobacco Products and Alcoholic Drinks"
with the Constitution of the Republic of Lithuania
and Part 1 of Article 8 and Part 1 of Article 12
of the Republic of Lithuania Law on Enterprises
Vilnius, 23 February 2000
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 hearing-Daiva Pitrėnaitė,
in the presence of:
the representative of the petitioner-a group of Seimas
members-Vytenis Povilas Andriukaitis, a Seimas member,
the representative of the party concerned-the Seimas of
the Republic of Lithuania-Dr. Pranas Petkevičius, a senior
consultant to the Law Department of the Office of the Seimas,
pursuant to Part 1 of Article 102 of the Constitution of
the Republic of Lithuania and Part 1 of Article 1 of the
Republic of Lithuania Law on the Constitutional Court, on 10
February 2000 in its public hearing conducted the investigation
of Case No. 21/98-6/99 subsequent to the petition submitted to
the Court by the petitioner-the Rokiškis District Local
Court-requesting to investigate if Item 5 of the Procedure for
Marking Alcoholic Drinks Manufactured and Sold in the Republic
of Lithuania with Labels of the 1998 Standard approved by 14
January 1998 Government of the Republic of Lithuania Resolution
No. 36 "On the Introduction of Labels of the 1998 Standard for
Marking Tobacco Products and Alcoholic Drinks" was in
compliance with Article 23 of the Constitution of the Republic
of Lithuania and Articles 8 and 12 of the Republic of Lithuania
Law on Enterprises, and subsequent to the petition submitted to
the Court by the petitioner-a group of Seimas
members-requesting to investigate if Item 5 of the Procedure
for Marking Alcoholic Drinks Manufactured and Sold in the
Republic of Lithuania with Labels of the 1998 Standard approved
by Sub-Item 6.4 of 14 January 1998 Government of the Republic
of Lithuania Resolution No. 36 "On the Introduction of Labels
of the 1998 Standard for Marking Tobacco Products and Alcoholic
Drinks", as well as if 24 September 1998 Government of the
Republic of Lithuania Resolution No. 1149 "On Partial Amendment
of 14 January 1998 Government of the Republic of Lithuania
Resolution No. 36 'On the Introduction of Labels of the 1998
Standard for Marking Tobacco Products and Alcoholic Drinks'",
30 November 1998 Government of the Republic of Lithuania
Resolution No. 1383 "On the Supplementation of 14 January 1998
Government of the Republic of Lithuania Resolution No. 36 'On
the Introduction of Labels of the 1998 Standard for Marking
Tobacco Products and Alcoholic Drinks'" were in compliance with
Article 1, Parts 1 and 3 of Article 23, Article 46, Part 1 of
Article 29 of the Constitution and the principle of the state
under the rule of law enshrined in the Constitution.
The Constitutional Court
has established:
I
The petitioner-the Rokiškis District Local Court-was
investigating a case concerning the administrative law
violation provided for in Article 1632 ("Storage,
Transportation and Sale of the Goods Subject to Excise Taxation
in Violation of the Established Procedure") of the Republic of
Lithuania Code of Administrative Law Violations.
By its ruling, the aforementioned court suspended the
investigation of the case and appealed to the Constitutional
Court with the petition requesting to investigate whether Item
5 of the Procedure for Marking Alcoholic Drinks Manufactured
and Sold in the Republic of Lithuania with Labels of the 1998
Standard (Official Gazette Valstybės žinios, 1998, No. 7-138;
hereinafter referred to as the Procedure) approved by 14
January 1998 Government Resolution No. 36 "On the Introduction
of Labels of the 1998 Standard for Marking Tobacco Products and
Alcoholic Drinks" was in conformity with Article 23 of the
Constitution and Articles 8 and 12 of the Law on Enterprises.
It is pointed out in the ruling of the court that under
Article 8 of the Law on Enterprises the general partnership is
an unlimited liability enterprise, and that under Article 12 of
the Law on Enterprises, the enterprise shall have the right to
engage in any commercial-economic or other activities, which
are not restricted by this or other laws, or the enterprise
foundation documents, or are not otherwise prohibited in the
manner prescribed by laws.
Meanwhile, by Item 5 of the Procedure approved by 14
January 1998 Government Resolution No. 36 "On the Introduction
of Labels of the 1998 Standard for Marking Tobacco Products and
Alcoholic Drinks" it is prohibited to trade in alcoholic drinks
manufactured in Lithuania which are marked by labels of the old
standard, as well as to transport, store them in store-rooms or
keep them in commercial premises of trade or public catering
enterprises or keep them in any other places. As the
Government, having established the said prohibitions, did not
provide for an opportunity for the wholesale and retail trade
enterprises which have the right to trade in alcoholic drinks
that have been acquired without violating the established
procedure prior to the coming into force of the aforesaid
procedure to change labels of the old standard with those of
the new standard, the court had doubts concerning the
lawfulness of the procedure established by Item 5 of the
resolution.
2. The request of the petitioner-a group of Seimas
members-is based on the following arguments.
It is established in 14 January 1998 Government Resolution
No. 36 "On the Introduction of Labels of the 1998 Standard for
Marking Tobacco Products and Alcoholic Drinks" that labels of
the 1998 standard for marking imported tobacco products and
alcoholic drinks and tobacco products and alcoholic drinks
manufactured in Lithuania shall be introduced. It is provided
for in the resolution that it is prohibited to trade in the
said articles marked by labels of the old standard, as well as
to transport, store them in store-rooms or keep them in
commercial, administrative and subsidiary premises of trade or
public catering enterprises or keep them in any other places.
This provision is applicable to alcoholic drinks manufactured
in Lithuania as of 1 August 1998, while it is applicable to
tobacco products manufactured and subject for sale in
Lithuania, and to imported alcoholic drinks and tobacco
products as of 1 October 1998.
The Government resolution established the prohibition,
while it was not pointed out therein what is to be done with
the existing remainder of the goods.
The petitioner maintains that when the right of ownership
is understood as the right of the owner to possess, use and
dispose of his property (Article 96 of the Civil Code), then
the principle of the inviolability of property as established
in the Constitution (Article 23) encompasses all these
elements. Item 5 of the Procedure approved by the Government
resolution of 14 January 1998 prohibits to trade in alcoholic
drinks with labels of the olds standard, as well as to
transport, store them in store-rooms or keep them in
commercial, administrative and other trade premises of trade or
public catering enterprises, however it does not provide for
the procedure, conditions, ways and term of legalisation of the
goods acquired prior to the adoption of the resolution,
therefore it violates the right of the owner to dispose of the
lawfully acquired property (prohibition to trade in it) and to
possess it (prohibition regarding its storing and
transporting).
By 24 September 1998 Government Resolution No. 1149, Item
4 of the Procedure for Marking Alcoholic Drinks Manufactured
and Sold in the Republic of Lithuania with Labels of the 1998
Standard approved by said 14 January 1998 Government Resolution
No. 36 was supplemented with a provision whereby the trade and
public catering enterprises which possess valid licences
granting the right to retail trade of alcoholic drinks shall
inventory the remainder of the imported alcoholic drinks marked
with labels of the 1995 standard according to their situation
of 1 October 1998. The importers of alcoholic drinks must
accept the said inventoried alcoholic drinks to their
storage-rooms pointed out in their licences granting them the
right to import alcoholic drinks. The importers must mark the
accepted alcoholic drinks with labels of the 1998 standard
which shall be issued gratis under the procedure established by
the State Tax Inspectorate under the Ministry of Finance. The
petitioner maintains that the Government resolution considers
only the procedure of inventory of alcoholic drinks but it does
not point out Lithuanian drinks nor does it mention tobacco
products.
In the opinion of the petitioner, this conflicts with Part
1 of Article 46 of the Constitution providing that Lithuania's
economy shall be based on the right to private ownership,
freedom of individual economic activity, and initiative, the
provision of Part 2 of Article 46 of the Constitution whereby
the State shall support economic efforts and initiative which
are useful to the community, the provision of Part 3 of Article
46 of the Constitution whereby the State shall regulate
economic activity so that it serves the general welfare of the
people, the provision of Part 4 of Article 46 of the
Constitution as in this case the principle of the equality of
entities of economy is violated, the provision of Part 5 of
Article 46 of the Constitution whereby the State shall defend
the interests of the consumers, the provision of Part 1 of
Article 29 of the Constitution whereby all persons shall be
equal before the law, the court, and other State institutions
and officers.
By its 30 November 1998 resolution No. 1383, the
Government supplemented Item 5 of the Procedure approved by its
14 January 1998 resolution with Paragraphs 4 and 5 wherein it
established that the trade and public catering enterprises
which possess valid licences granting the right to retail trade
of alcoholic drinks shall inventory the existing remainder of
alcoholic drinks marked with labels of the 1995 standard which
were manufactured in the Republic of Lithuania and which belong
to the enterprises by the right of ownership. The Government
resolution did not mention tobacco products. In the opinion of
the petitioner, it would have been understandable, if such a
resolution had been adopted prior to the prohibition to trade
in the said articles, meanwhile such inventory was to be
performed after the businessmen had had to destroy the
remainder of the said articles, and after the officials of tax
inspectorates, the tax police and the economic police had
confiscated the said remainder.
The petitioner maintains that the aforesaid Government
resolutions also violate the principles of the state under the
rule of law.
3. By its decision of 13 January 2000, the Constitutional
Court joined the petitions of the Rokiškis District Local Court
and the group of Seimas members into one case.
II
In the course of the preparation the case for the
Constitutional Court hearing, a written explanation of the
representatives of the party concerned-the Government-J.
Aleksaitė, Director of the Law Department of the Ministry of
Justice and V. Latvienė, Vice-Minister of Finance, and a
written explanation of the representative of the party
concerned-the Seimas-Dr. P. Petkevičius, a senior consultant to
the Law Department of the Office of the Seimas, were received.
In the explanation of J. Aleksaitė and V. Latvienė it is
pointed out that in Article 23 of the Constitution the
constitutional protection of ownership is entrenched, however
restrictions on the right of ownership are possible, as,
otherwise, pre-conditions may appear to violate the rights of
other persons. Under Article 4 of the Law on Alcohol Control,
alcohol products are attributed to special products, the
manufacture, import, trade and use of which shall be applied a
special state regulatory regime. Item 3 of Part 1 of Article 20
of this law provides that in the Republic of Lithuania it shall
be prohibited to sell alcoholic drinks without the prescribed
special marking; Part 6 of Article 19 of this law points out
that the procedure for trade in alcohol products shall be
established by the Government.
By its 14 January 1998 Resolution No. 36 "On the
Introduction of Labels of the 1998 Standard for Marking Tobacco
Products and Alcoholic Drinks", the Government regulated the
introduction of labels of the 1998 standard for tobacco
products and alcoholic drinks. The Government had the right to
establish requirements of the special marking, i.e. to
introduce labels. New labels of the 1998 standard were
introduced in attempt to take precautions against forgery of
labels, evasion of excise taxes and contraband.
Item 5 of the Procedure approved by the Government
resolution provides that it shall be prohibited to deal in
alcoholic drinks manufactured in the Republic of Lithuania
which are marked by labels of the old standard, as well as to
transport, store them in store-rooms or keep them in
commercial, administrative and subsidiary premises of trade or
public catering enterprises or keep them in any other places.
In this case the Government was attempting not to restrict the
rights of ownership of enterprises but to regulate the
requirements of trade in alcoholic drinks, their storage and
transportation. By the Government resolution, conditions were
created for the enterprises to sell alcoholic drinks marked
with labels of the old standard from 22 January 1998 till 1
June 1998.
By 25 February 1998 Government Resolution No. 235 "On
Partial Amendment of 14 January 1998 Government of the Republic
of Lithuania Resolution No. 36 'On the Introduction of Labels
of the 1998 Standard for Marking Tobacco Products and Alcoholic
Drinks'" Item 5 of the Procedure was supplemented with a
provision that to the alcoholic drinks manufactured in
Lithuania labelled with the labels of the old standard and the
unlabelled national drinks manufactured prior to 15 August 1997
by the company Lietuviškas midus which were bottled either into
special bottles or packed in imported souvenir package the
aforesaid provision shall be applied as of 1 August 1998, while
to wholesale trade enterprises-as of 1 June 1998. The
Government considered that this term would be sufficient and
that the enterprises would manage to sell their articles marked
with labels of the old standard.
Article 8 of the Law on Enterprises regulates the status
of the general partnership as an independent entity of economy,
its establishment and organisation, however it does not
regulate its commercial-economic activity nor its
peculiarities.
Part 1 of Article 12 of the Law on Enterprises provides
that the enterprise shall have the right to engage in any
commercial-economic or other activities which are not
restricted by this or other laws, the statute of the
enterprise, the enterprise foundation agreement or other
enterprise foundation documents, or are not otherwise
prohibited in the manner prescribed by laws. Thus, it is to be
concluded that activities of enterprises may be restricted not
only by the Law on Enterprises but also other laws.
In the opinion of J. Aleksaitė and V. Latvienė, Item 5 of
the Procedure approved by 14 January 1998 Government Resolution
No. 36 "On the Introduction of Labels of the 1998 Standard for
Marking Tobacco Products and Alcoholic Drinks" is in compliance
with Article 23 of the Constitution and is also in conformity
with Articles 8 and 12 of the Law on Enterprises.
In the explanation of P. Petkevičius it is maintained that
the Government resolution of 14 January 1998 was adopted in
attempt to bar the way to the contraband of tobacco products
and alcoholic drinks and manufacturing and trade in adulterated
alcoholic drinks. By the said resolution it was prohibited to
trade in the said products which were not marked with labels of
the new standard, to store them in store-rooms of trade and
public catering enterprises, or to keep them in trade or other
premises. To alcoholic drinks manufactured in Lithuania this
provision is applied as of 1 August 1998, while to tobacco
products manufactured and sold in Lithuania, as well as
imported alcoholic drinks and tobacco products-as of 1 October
1998.
In the opinion of P. Petkevičius, there exists no reason
to assert that by the said Government resolution exclusive
conditions violating the interests of other traders were
created for trade and public catering enterprises.
It is maintained in the explanation of P. Petkevičius that
14 January 1998 Government Resolution No. 36 "On the
Introduction of Labels of the 1998 Standard for Marking Tobacco
Products and Alcoholic Drinks" with subsequent supplements is
in compliance with Article 23 of the Constitution.
In the course of the preparation of the case for the
Constitutional Court hearing, a written explanation of Assoc.
Prof. Dr. B. Sudavičius who works at the Department of Public
Law at the Faculty of Law of Vilnius University was received.
III
In the Constitutional Court hearing the representative of
the petitioner-a group of Seimas members-virtually reiterated
the arguments set forth in the petition.
In the Constitutional Court hearing the representative of
the party concerned-the Seimas-virtually reiterated the
arguments set forth in the written explanation.
The Constitutional Court
holds that:
1. On the compliance of Item 5 of the Procedure for
Marking Alcoholic Drinks Manufactured and Sold in the Republic
of Lithuania with Labels of the 1998 Standard approved by
Sub-Item 6.4 of 14 January 1998 Government of the Republic of
Lithuania Resolution No. 36 "On the Introduction of Labels of
the 1998 Standard for Marking Tobacco Products and Alcoholic
Drinks" with Article 23 of the Constitution.
1.1. Article 23 of the Constitution provides:
"Property shall be inviolable.
The rights of ownership shall be protected by law.
Property may only be seized for the needs of society
according to the procedure established by law and must be
adequately compensated for."
Construing the content of Article 23 of the Constitution,
the Constitutional Court has held that Part 1 of Article 23 of
the Constitution establishes the constitutional principle of
protection of private ownership which means that the owner, who
enjoys subjective rights to property, is guaranteed the right
to demand that his rights should not be violated by other
persons. This principle also pre-supposes the duty of the state
to protect the rights of the owner from any unlawful
encroachment upon them. Part 2 of Article 23 of the
Constitution consolidates the fundamental rule of ownership
institute whereby the rights of ownership must be defended by
legal acts of supreme juridical power, i.e. by laws. All the
remaining legal acts in the area of regulation of ownership
rights must be in conformity with laws. Under Part 3 of Article
23 of the Constitution, no one may seize property in an
arbitrary manner but property may only be seized for the needs
of society according to the procedure established by law and
must be adequately compensated for (Constitutional Court
rulings of 13 December 1993, 15 July 1994, 18 April 1996).
The Constitutional Court has also held that that the
subjective rights of the owner to possess, use and dispose of
his property may be restricted by the law in the interest
necessary to society, due to the nature of the property (arms,
narcotic substances, etc.) or other reasons (Constitutional
Court ruling of 9 July 1998).
1.2. Under Article 4 of the 18 April 1995 Law on Alcohol
Control, alcohol products are attributed to special products,
the manufacture, import, trade and use of which, in accordance
with this and other laws and other legal acts, shall be applied
a special state regulatory regime. Item 3 of Part 1 of Article
20 of the same law provides that in the Republic of Lithuania
it shall be prohibited to sell imported alcoholic drinks (with
the exception of beer) without the prescribed special marking.
Part 2 of the same article provides that the requirements set
down in Item 3 of Part 1 of the law shall also be applicable to
alcohol products kept (stored) in enterprises and alcohol
products being transported by enterprises. Part 6 of Article 19
of the said law provides that the procedure of trade in alcohol
products shall be established by the Government.
1.3. It needs to be noted that as far back as 16 June
1993, by its Resolution No. 443 "On the Procedure of Regulation
of Export and Import of Goods in the Republic of Lithuania", as
one of the measures of protection of the Lithuanian market from
contraband of alcoholic drinks from abroad, the Government
established that from 15 November 1993 labels which are sold to
the importers by the Customs Department under the Ministry of
Finance must be glued to packages of tobacco products and those
of alcoholic drinks which are imported to Lithuania.
By 11 September 1995 Government Resolution No. 1208 "On
the Introduction of Labels of the 1995 Standard for Tobacco
Products and Alcoholic Drinks and Approval of the Procedure for
Import of Tobacco Products and Alcoholic Drinks", labels of the
new standard were approved for imported alcoholic drinks, while
conforming to 7 December 1995 Resolution No. 1535 "On Marking
Alcoholic Drinks Manufactured in the Republic of Lithuania with
Labels" alcoholic drinks manufactured in Lithuania were begun
to be marked.
1.4. It is established in Sub-Item 1.1 of 14 January 1998
Government Resolution No. 36 "On the Introduction of Labels of
the 1998 Standard for Marking Tobacco Products and Alcoholic
Drinks" that as of 1 March 1998 labels of the 1998 standard
shall be introduced to mark alcoholic drinks manufactured in
the Republic of Lithuania.
Item 4 of the Procedure for Marking Alcoholic Drinks
Manufactured and Sold in the Republic of Lithuania with Labels
of the 1998 Standard approved by Sub-Item 6.2 of the said
resolution provides that "it shall be prohibited to trade in
imported alcoholic drinks which are not marked with labels
(with the exception of the cases pointed out in Item 2 of this
Procedure) or marked with labels of the old standard, as well
as to transport, store them in store-rooms or keep them in
commercial, administrative and subsidiary premises of trade or
public catering enterprises or keep them in any other places.
This provision shall be applicable to the imported alcoholic
drinks and canned mild alcoholic cocktails with labels of the
1995 standard as of 1 October 1998."
Item 5 of the Procedure approved by Sub-Item 6.4 of the
said resolution provides: "It shall be prohibited to trade in
the alcoholic drinks manufactured in the Republic of Lithuania
which are not marked with labels (with the exception of the
cases pointed out in Item 2 of this Procedure) or marked with
labels of the old standard, as well as to transport, store them
in store-rooms or keep them in commercial, administrative and
subsidiary premises of trade or public catering enterprises or
keep them in any other places.
The aforesaid provision shall be applied to the alcoholic
drinks manufactured in Lithuania labelled with labels of the
old standard and the unlabelled national drinks manufactured
prior to 15 August 1997 by the company Lietuviškas midus which
were bottled either into special bottles or packed in imported
souvenir package as of 1 August 1998."
1.5. On 25 February 1998 the Government adopted Resolution
No. 235 "On Partial Amendment of 14 January 1998 Government of
the Republic of Lithuania Resolution No. 36 'On the
Introduction of Labels of the 1998 Standard for Marking Tobacco
Products and Alcoholic Drinks'". By the said resolution Item 5
of the Procedure was set forth as follows:
"5. It shall be prohibited to trade in alcoholic drinks
manufactured in the Republic of Lithuania which are not marked
with labels (with the exception of the cases pointed out in
Item 2 of this Procedure) or marked with labels of the old
standard, as well as to transport, store them in store-rooms or
keep them in commercial, administrative and subsidiary premises
of trade or public catering enterprises or keep them in any
other places. The aforesaid provision shall be applied to the
alcoholic drinks manufactured in Lithuania labelled with the
labels of the old standard and the unlabelled national drinks
manufactured prior to 15 August 1997 by the company Lietuviškas
midus which were bottled either into special bottles or packed
in imported souvenir package as of 1 August 1998, while to
wholesale trade enterprises-as of 1 June 1998."
1.6. By 24 September 1998 Resolution No. 1149 "On Partial
Amendment of 14 January 1998 Government of the Republic of
Lithuania Resolution No. 36 'On the Introduction of Labels of
the 1998 Standard for Marking Tobacco Products and Alcoholic
Drinks'" the Government amended Item 4 of the Procedure for
Marking Alcoholic Drinks Manufactured and Sold in the Republic
of Lithuania with Labels of the 1998 Standard and set it down
as follows:
"4. It shall be prohibited to trade in the imported
alcoholic drinks which are not marked with labels (with the
exception of the cases pointed out in Item 2 of this Procedure)
or marked with labels of the old standard (with the exception
of labels of the 1995 standard), as well as to transport, store
them in store-rooms or keep them in commercial, administrative
and subsidiary premises of trade or public catering enterprises
or keep them in any other places. To canned mild alcoholic
cocktails with labels of the 1995 standard this provision shall
be applicable as of 1 October 1998.
The trade and public catering enterprises which possess
valid licences granting the right to retail trade of alcoholic
drinks shall inventory the remainder of the imported alcoholic
drinks marked with labels of the 1995 standard according to
their situation of 1 October 1998. The inventory must be
started and ended on 1 October 1998. In the inventory documents
one must point out names of the alcoholic drinks, volume and
quantity of the bottles or other packages into which the
alcoholic drinks are either bottled or packed, the series and
the number of the acquisition document and the series and the
numbers of the labels. One copy of the inventory document must
be presented to the territorial state tax inspectorate on the
territory of which there is the respective place of trade in
alcoholic drinks not later than 10 October 1998.
From 1 October 1998, trade and public catering enterprises
shall be prohibited to trade in the imported alcoholic drinks
marked with labels of the 1995 standard, while from 15 October
1998 it shall be prohibited to transport the said articles,
store them in storage-rooms (with the exception of trade
storage-rooms pointed out in the licences issued to alcohol
drinks importers granting them the right to import alcoholic
drinks) or keep them in commercial, administrative and
subsidiary premises of trade or public catering enterprises or
keep them in any other places. Until 15 October 1998, the said
enterprises must deliver alcoholic drinks of good quality to
the importer from whom they have been acquired. The procedure
for marking of the alcoholic drinks with labels of the 1998
standard which were acquired from the importers that lost the
right to import alcoholic drinks shall be established by the
Ministry of Finance.
Until 15 October 1998, the importers of alcoholic drinks
must accept the said inventoried alcoholic drinks to their
storage-rooms pointed out in their licences granting them the
right to import alcoholic drinks. The importers, in the
presence of employees of territorial state tax inspectorates
must, not later than 15 November 1998, mark the accepted
alcoholic drinks with labels of the 1998 standard which shall
be issued gratis under the procedure established by the State
Tax Inspectorate under the Ministry of Finance. The importers
of alcoholic drinks are permitted to store the inventoried
alcoholic drinks marked with labels of the 1995 standard only
till 15 November 1998".
1.7. On 30 November 1998, the Government adopted
Resolution No. 1383 "On the Supplementation of 14 January 1998
Government of the Republic of Lithuania Resolution No. 36 'On
the Introduction of Labels of the 1998 Standard for Marking
Tobacco Products and Alcoholic Drinks'". By this resolution,
Item 5 of the Procedure was supplemented by Paragraphs 3 and 4:
"The trade and public catering enterprises which possess
valid licences granting the right to retail trade of alcoholic
drinks shall inventory the existing remainder of the alcoholic
drinks manufactured in the Republic of Lithuania which belong
to them by the right of ownership and which are marked with
labels of the 1995 standard. In the inventory documents one
must point out names of the alcoholic drinks, volume and
quantity of the bottles or other packages into which the
alcoholic drinks are either bottled or packed, the series and
the number of the acquisition document and the series and the
numbers of labels. One copy of the inventory document must be
presented to the territorial state tax inspectorate on the
territory of which there is the respective place of trade in
alcoholic drinks not later than 7 December 1998.
The State Tax Inspectorate under the Ministry of Finance
must check up the inventoried remainder, to investigate if the
alcoholic drinks had been acquired lawfully, in case of need to
establish the validity of the remainder by means of indirect
methods, while the Ministry of Finance must, until 14 December
1998, present the summary of the information concerning the
remainder of these alcoholic drinks to the Government of the
Republic of Lithuania."
1.8. The petitioner-the Rokiškis District Local
Court-requests to investigate if Item 5 of the Procedure
approved by 14 January 1998 Government Resolution No. 36 "On
the Introduction of Labels of the 1998 Standard for Marking
Tobacco Products and Alcoholic Drinks" is in conformity with
the Constitution and Articles 8 and 12 of the Law on
Enterprises. The petitioner-a group of Seimas members-requests
to investigate whether Item 5 of the said Procedure is in
conformity with the Constitution. Even though both petitioners
point out in the resolution part of their petitions that they
request to investigate whether Item 5 of the Procedure approved
by the said Government resolution is in compliance with the
Constitution, while the Rokiškis District Local Court also
requests to investigate whether Item 5 of the Procedure is also
in conformity with Articles 8 and 12 of the Law on Enterprises,
it is evident from the argumentative part of the petitions that
they request to investigate not whole Item 5 of the Procedure
with the Constitution and the Law on Enterprises but only
whether the legal norms set forth in Item 5 of the Procedure
which prohibit trade and public catering enterprises having the
right to trade in alcoholic drinks from trading in alcoholic
drinks manufactured in the Republic of Lithuania marked with
labels of the old standard and from transporting the said
articles, storing them in storage-rooms or keeping them in
commercial, administrative and subsidiary premises of trade or
public catering enterprises or keeping them in any other places
from the date set in the Government resolution.
Taking account of the arguments pointed out in the
petitions of the petitioners, the Constitutional Court will
investigate the compliance of not whole Item 5 of the Procedure
but only the compliance of the norms of Item 5 prohibiting the
enterprises having the right to trade in alcoholic drinks from
trading in alcoholic drinks manufactured in the Republic of
Lithuania marked with labels of the old standard and from
transporting the said articles, storing them in storage-rooms
or keeping them in commercial, administrative and subsidiary
premises of trade or public catering enterprises or keeping
them in any other places from the date set in the Government
resolution with the Constitution and the Law on Enterprises.
By 30 November 1998 Government Resolution No. 1383 "On the
Supplementation of 14 January 1998 Government of the Republic
of Lithuania Resolution No. 36 'On the Introduction of Labels
of the 1998 Standard for Marking Tobacco Products and Alcoholic
Drinks'" Item 5 of the said Procedure was supplemented by
Paragraphs 3 and 4 which regulate not prohibitions to trade in,
transport or keep alcoholic drinks, but which establish that
the remainder of alcoholic drinks manufactured in the Republic
of Lithuania marked with labels of the old standard must be
inventoried.
Taking account of this, the Constitutional Court will also
investigate whether Paragraphs 3 and 4 added to Item 5 of the
Procedure by the said Government resolution of 30 November 1998
are in conformity with the Constitution.
By 24 September 1998 Resolution No. 1149 "On Partial
Amendment of 14 January 1998 Government of the Republic of
Lithuania Resolution No. 36 'On the Introduction of Labels of
the 1998 Standard for Marking Tobacco Products and Alcoholic
Drinks'" the Government amended Item 4 of the Procedure for
Marking Alcoholic Drinks Manufactured and Sold in the Republic
of Lithuania with Labels of the 1998 Standard. It was
established in Item 4 that the enterprises having the right to
trade in imported alcoholic drinks may mark the alcoholic
drinks marked with labels of the old standard with those of the
new standard. In the said Government resolution also the
procedure for inventory of such drinks and their marking with
labels of the new standard is regulated. Although in the
resolution part of the petition of the group of Seimas members
it is pointed out that one requests to investigate the
compliance of the whole Government resolution of 24 September
1998 with the Constitution, however, it is clear from the
argumentative part of the petition that the petitioner has
doubts that the said Government resolution may conflict with
the Constitution as it is not provided for therein that it
shall also be permitted to mark alcoholic drinks manufactured
in Lithuania with labels of the new standard.
Taking account of the argumentative part of the petition
of the petitioner, the Constitutional Court will investigate
the compliance of not whole Item 4 of the Procedure for Marking
Alcoholic Drinks Manufactured and Sold in the Republic of
Lithuania with Labels of the 1998 Standard amended by the said
Government resolution of 24 September 1998 with the
Constitution but only that of the norms of Item 4 permitting to
mark the imported alcoholic drinks marked with labels of the
old standard with those of the new standard, and the compliance
of Item 4 concerning the fact that it does not provide that it
is permitted to mark the alcoholic drinks manufactured in
Lithuania marked with labels of the old standard with those of
the new standard with the Constitution.
1.9. Summarising the legal regulation established in 14
January 1998 Government Resolution No. 36 "On the Introduction
of Labels of the 1998 Standard for Marking Tobacco Products and
Alcoholic Drinks" (with the amendments made and supplements
added by the Government resolutions of 25 February 1998, 24
September 1998 and 30 November 1998), it is possible to
maintain that the following provisions are established in this
Government resolution:
1) from 1 March 1998 imported alcoholic drinks and
alcoholic drinks manufactured in Lithuania must be marked with
labels of the 1998 standard;
2) it is prohibited, from 1 August 1998, to trade in the
alcoholic drinks manufactured in Lithuania which are marked by
labels of the old standard, as well as to transport, store them
in store-rooms or keep them in commercial, administrative and
subsidiary premises of trade or public catering enterprises or
keep them in any other places, while the wholesale enterprises
are prohibited from doing so as of 1 June 1998;
3) trade and public catering enterprises shall be
prohibited from trading in the imported alcoholic drinks marked
with labels of the 1995 standard as of 1 October 1998, while
from 15 October 1998 they are prohibited from transporting,
storing them in store-rooms or keeping them in commercial,
administrative and subsidiary premises of trade or public
catering enterprises or keeping them in any other places.
4) trade and public catering enterprises which have the
right to retail trade of alcoholic drinks, shall inventory the
remainder of the imported alcoholic drinks marked with labels
of the 1995 standard according to their situation of 1 October
1998 and shall deliver the alcoholic drinks to the importer
until 15 October 1998 from whom they have been acquired. The
importers must, until not later than 15 November 1998, mark the
accepted alcoholic drinks with labels of the 1998 standard;
5) after the prohibition to trade in, transport and store
the alcoholic drinks manufactured in Lithuania marked with
labels of the 1995 standard had gone into effect, it was
provided that trade and public catering enterprises which have
the right to retail trade of alcoholic drinks must inventory
the remainder of the imported alcoholic drinks marked with
labels of the 1995 standard and which belong to them by the
right of ownership, while they had to present one copy of the
inventory document to the territorial state tax inspectorate
not later than 7 December 1998.
1.10. As mentioned, under the Law on Alcohol Control,
alcohol products are attributed to special products, the
manufacture, import, trade and use of which shall be applied a
special state regulatory regime. It needs to be noted that in
themselves the norms of Item 5 of the Procedure approved by the
disputed Government resolution and providing for that alcoholic
drinks must be marked by labels of the new 1998 standard, that
it shall be prohibited to trade in alcoholic drinks without
labels or with those of the old standard, that it shall be
prohibited to transport, store such drinks in store-rooms or
keep them in commercial, administrative and subsidiary premises
of trade or public catering enterprises or keep them in any
other places are not legally deficient.
Assessing whether Item 5 of the Procedure approved by 14
January 1998 Government Resolution No. 36 "On the Introduction
of Labels of the 1998 Standard for Marking Tobacco Products and
Alcoholic Drinks" is in conformity with the Constitution, the
fact is of essential importance that after the enterprises had
been prohibited to trade in, transport and store alcoholic
drinks manufactured in Lithuania marked with labels of the old
standard, it was not decided as to what the enterprises should
do with the alcoholic drinks manufactured in Lithuania marked
with labels of the old standard and which had been acquired
lawfully before the said prohibitions had been adopted and
which belonged to them by the right of ownership. In addition,
it was not provided for under what procedure and on what
conditions the enterprises may have sold these drinks after the
date set by the resolution. It needs to be noted that the
disputed Government resolution did not regulate these issues at
all. The resolution only prohibited to trade in, transport and
store the alcoholic drinks manufactured in Lithuania marked
with labels of the old standard in store-rooms or keep them in
commercial, administrative and subsidiary premises of trade or
public catering enterprises or keep them in any other places.
In the context of the case at issue, the fact is also of
importance that prior to the establishment of the said
prohibitions the Code of Administrative Violations of Law
provided for administrative responsibility for storing,
transportation or sale of goods taxable by excises in violation
of the established procedure. After the said prohibitions had
been established by the disputed Government resolution, persons
who traded in, transported or stored the alcoholic drinks
manufactured in Lithuania marked with labels of the old
standard which had been acquired prior to the introduction of
the prohibitions and which belonged to them by the right of
ownership were administratively liable under the Code of
Administrative Violations of Law.
1.11. The Constitutional Court has held that the
Constitution recognises certain possibilities to restrict the
rights of ownership, as well as certain other fundamental human
rights. However, in these cases, too, one must conform to the
fundamental position that it is not permitted to violate by
restrictions the essence of a fundamental human right. If such
a right is limited so that its implementation becomes
impossible or restricted so that reasonable limits are
overstepped, or its legal protection is no longer ensured, in
that case there are grounds to assert that the essence of such
a right is violated, which is equivalent to the denial of this
right (Constitutional Court ruling of 18 April 1996).
The content of the right of ownership consists of the
right to possess, use and dispose of property. As mentioned,
under Item 5 of the Procedure, the enterprises which had the
right to trade in alcoholic drinks manufactured in Lithuania
were prohibited from trading in, transporting and keeping the
alcoholic drinks manufactured in Lithuania marked with labels
of the old standard of 1 August 1998, while wholesale
enterprises were prohibited from doing so as of 1 June 1998,
meanwhile it was not provided for under what procedure and on
what conditions the enterprises were permitted to sell the
alcoholic drinks manufactured in Lithuania marked with labels
of the old standard which had been lawfully acquired prior to
the introduction of the said prohibitions and which belonged to
them by the right of ownership.
The legal regulation established by the said Government
resolution of 14 January 1998 when an entity of economy is
prohibited not only from trading in lawfully acquired alcoholic
drinks belonging to it by the right of ownership but also from
keeping and transporting them, and when nothing is said under
what procedure and on what conditions the entity of economy is
permitted to sell alcoholic drinks manufactured in Lithuania
marked with labels of the old standard which were lawfully
acquired prior to the introduction of the said prohibitions and
which belonged to it by the right of ownership is to be
assessed as prohibiting the entity of economy to possess, use
and dispose of the property belonging to it, and, therefore, as
denying the right of ownership in essence.
Taking account of the aforesaid motives, one is to draw a
conclusion that Item 5 of the Procedure for Marking Alcoholic
Drinks Manufactured and Sold in the Republic of Lithuania with
Labels of the 1998 Standard approved by the Government
resolution of 14 January 1998 to the extent that wholesale
enterprises are prohibited from trading in alcoholic drinks
manufactured in Lithuania marked with labels of the old
standard, as well as from transporting and storing them in
commercial, administrative and subsidiary premises of trade or
public catering enterprises or keeping them in any other places
as of 1 June 1998, while other enterprises are prohibited from
doing so as of 1 August 1998 in the absence of a provision
under what procedure and on what conditions the enterprises are
permitted to sell alcoholic drinks manufactured in Lithuania
marked with labels of the old standard which were lawfully
acquired prior to the introduction of the said prohibitions and
which belonged to them by the right of ownership conflicts with
Article 23 of the Constitution.
2. On the compliance of Item 5 of the Procedure for
Marking Alcoholic Drinks Manufactured and Sold in the Republic
of Lithuania with Labels of the 1998 Standard approved by
Sub-Item 6.4 of 14 January 1998 Government of the Republic of
Lithuania Resolution No. 36 "On the Introduction of Labels of
the 1998 Standard for Marking Tobacco Products and Alcoholic
Drinks" with Article 46, Part 1 of Article 29, Article 1 of the
Constitution, and the principle of the state under the rule of
law enshrined in the Constitution.
2.1. Article 46 of the Constitution provides:
"Lithuania's economy shall be based on the right to
private ownership, freedom of individual economic activity, and
initiative.
The State shall support economic efforts and initiative
which are useful to the community.
The State shall regulate economic activity so that it
serves the general welfare of the people.
The law shall prohibit monopolisation of production and
the market, and shall protect freedom of fair competition.
The State shall defend the interests of the consumers."
In its ruling of 6 October 1999, the Constitutional Court
held that the constitutional grounds of the national economy
are established in Article 46 of the Constitution, that the
notion of freedom of individual economic activity and
initiative includes the right to choose business freely, the
right to free conclusion of contracts, freedom of fair
competition, equality of entities of economic activity.
It needs to be noted that the legal norms set down in
Article 46 of the Constitution are interrelated, therefore when
a legal norm which is in a certain part of Article 46 of the
Constitution is violated, the legal norms laid down in the
other parts of this article are violated or pre-conditions are
created for their violation.
As mentioned, Under Item 5 of the Procedure, the
enterprises which had the right to trade only in alcoholic
drinks manufactured in Lithuania were prohibited from trading
in, transporting and keeping the alcoholic drinks manufactured
in Lithuania marked with labels of the old standard from the
date pointed out in the disputed Government resolution and it
was not provided for under what procedure and on what
conditions the enterprises were permitted to sell the alcoholic
drinks manufactured in Lithuania marked with labels of the old
standard which had been lawfully acquired prior to the
introduction of the said prohibitions and which belonged to
them by the right of ownership. In this Constitutional Court
ruling it has already been held that by such legal regulation
the owners of property are not permitted to possess, use and
dispose of the property belonging to them by the right of
ownership, and that by such legal regulation the right of
ownership is denied in essence and that such legal regulation
contradicts Article 23 of the Constitution.
It needs to be noted that after the enterprises have been
prohibited from trading in, transporting and keeping the
alcoholic drinks manufactured in Lithuania marked with labels
of the old standard in the absence of a provision in what way
the enterprises are permitted to sell the alcoholic drinks
manufactured in Lithuania marked with labels of the old
standard which had been lawfully acquired prior to the
introduction of the said prohibitions and which belonged to
them by the right of ownership after the date set in the
resolution, not only the right of ownership is denied but also
freedom of individual economic activity and initiative as well
as freedom of fair competition established in Article 46 of the
Constitution are restricted in essence. Alongside, the other
legal norms set down in Article 46 of the Constitution
establishing the constitutional grounds of the national economy
are violated.
2.2. Part 1 of Article 29 of the Constitution provides
that "all persons shall be equal before the law, the court, and
other State institutions and officers".
In its ruling of 28 February 1996, the Constitutional
Court held that the constitutional principle of equality of all
persons shall be applicable not only to natural but legal
persons as well.
In the Procedure for Marking Alcoholic Drinks Manufactured
and Sold in the Republic of Lithuania with Labels of the 1998
Standard and the Procedure for Marking Alcoholic Drinks
Imported to the Republic of Lithuania with Labels of the 1998
Standard approved by the Government resolution of 14 January
1998 such legal regulation is established when the enterprises
which have the right to trade in imported alcoholic drinks and
the enterprises which have the right to trade only in alcoholic
drinks manufactured in Lithuania appeared in evidently
different legal situation: the enterprises which have the right
to trade in imported alcoholic drinks had the right to mark the
imported drinks, which were marked with labels of the old
standard, with labels of the 1998 standard and continue trading
in, transporting and keeping them after the established date,
while the enterprises which have the right to trade only in
alcoholic drinks manufactured in Lithuania did not have the
right to mark the alcoholic drinks, which were marked by labels
of the old standard, with labels of the 1998 standard: the said
enterprises were simply prohibited from trading in,
transporting and keeping the lawfully acquired prior to the
prohibitions alcoholic drinks manufactured in Lithuania marked
with labels of the old standard and which belonged to them by
the right of ownership.
Such legal regulation is to be assessed as placing
entities of economy in different and unequal situation, as
discriminating those entities of economy which have the right
to trade only in alcoholic drinks manufactured in Lithuania,
and, therefore, as violating the principle of equality of all
persons before the law entrenched in Part 1 of Article 29 of
the Constitution.
2.3. The petitioner-a group of Seimas members-also
requests to investigate whether Item 5 of the Procedure
approved by the Government resolution of 14 January 1998 is in
compliance with Article 1 of the Constitution.
Article 1 of the Constitution provides: "The State of
Lithuania shall be an independent and democratic republic."
It needs to be noted that in this article of the
Constitution the fundamental principles of the Lithuanian State
are established: the Lithuanian State is free and independent;
the republic is the form of governance of the Lithuanian State;
the state power must be organised in a democratic way, and
there must be a democratic political regime in this country.
Taking account of the fact that Item 5 of the Procedure
regulates relations of different nature, there exist no grounds
to assert that Item 5 of the Procedure is in conflict with
Article 1 of the Constitution.
2.4. Taking account of the above-mentioned motives, a
conclusion is to be drawn that Item 5 of the Procedure for
Marking Alcoholic Drinks Manufactured and Sold in the Republic
of Lithuania with Labels of the 1998 Standard approved by the
Government resolution of 14 January 1998 to the extent that
wholesale enterprises are prohibited from trading in alcoholic
drinks manufactured in Lithuania marked with labels of the old
standard, as well as from transporting and storing them in
commercial, administrative and subsidiary premises of trade or
public catering enterprises or keeping them in any other places
as of 1 June 1998, while other enterprises are prohibited from
doing so as of 1 August 1998 in the absence of a provision
under what procedure and on what conditions the enterprises are
permitted to sell alcoholic drinks manufactured in Lithuania
marked with labels of the old standard which were lawfully
acquired prior to the introduction of the said prohibitions and
which belonged to them by the right of ownership conflicts with
Article 46 and Part 1 of Article 29 of the Constitution.
2.5. The petitioner also requests to investigate whether
Item 5 of the Procedure approved by the Government resolution
of 14 January 1998 is in conformity with the principle of the
state under the rule of law enshrined in the Preamble of the
Constitution.
In the Preamble of the Constitution a strife for an open,
just, and harmonious civil society and law-governed state is
established. It needs to be noted that the constitutional
principle of the state under the rule of law is a universal one
upon which the whole Lithuanian legal system as well as the
Constitution of the Republic of Lithuania itself are based and
that the content of the principle of the state under the rule
of law reveals itself in various provisions of the Constitution
and is to be construed inseparably from the strife for an open,
just, and harmonious civil society and law-governed state
promulgated in the Preamble of the Constitution. Along with the
other requirements, the principle of the state under the rule
of law enshrined in the Constitution also pre-supposes the fact
that human rights and freedoms must be ensured, that all state
institutions exercising state power, as well as other state
institutions, must act on the grounds of law and in compliance
with law, that the Constitution has the supreme juridical power
and that the laws, Government resolutions and other legal acts
must be in conformity with the Constitution. As mentioned, the
Constitution guarantees inviolability of property and
protection of the rights of ownership (Article 23), establishes
freedom of economic activity and initiative, protects freedom
of fair competition (Article 46), provides that all persons
shall be equal before the law (Article 29).
After it has been held that Item 5 of the Procedure for
Marking Alcoholic Drinks Manufactured and Sold in the Republic
of Lithuania with Labels of the 1998 Standard approved by the
Government resolution of 14 January 1998 to the above-mentioned
extent conflicts with Article 23, Article 46 and Part 1 of
Article 29 of the Constitution, alongside it should be held
that said Item 5 to the said extent conflicts with the
principle of the state under the rule of law enshrined in the
Constitution.
3. On the compliance of 24 September 1998 Government
Resolution No. 1149 "On Partial Amendment of 14 January 1998
Government of the Republic of Lithuania Resolution No. 36 'On
the Introduction of Labels of the 1998 Standard for Marking
Tobacco Products and Alcoholic Drinks'" with Article 1, Parts 1
and 3 of Article 23, Part 1 of Article 29, Article 46 of the
Constitution and the principle of the state under the rule of
law enshrined in the Constitution.
3.1. In 24 September 1998 Government Resolution No. 1149
"On Partial Amendment of 14 January 1998 Government of the
Republic of Lithuania Resolution No. 36 'On the Introduction of
Labels of the 1998 Standard for Marking Tobacco Products and
Alcoholic Drinks'" Item 4 of the Procedure for Marking
Alcoholic Drinks Manufactured and Sold in the Republic of
Lithuania with Labels of the 1998 Standard approved by Sub-Item
6.2 of the said resolution was partially amended and it was
provided for therein that the imported alcoholic drinks marked
with labels of the 1995 standard must be inventoried until 1
October 1998 (according to their situation of 1 October 1998);
inventory acts must be submitted to the state tax inspectorate
until 10 October 1998; the inventoried drinks must be delivered
to the importers until 15 October 1998, who must mark them with
labels of the 1998 standard by not later than 15 November 1998.
The petitioner maintains that in the said Government
resolution only the procedure of the inventory of imported
drinks is set, while this resolution does not mention
Lithuanian drinks, therefore, in his opinion, this resolution
is in conflict with Article 46 and Part 1 of Article 29 of the
Constitution.
3.2. Deciding whether the disputed Government resolution
of 24 September 1998 is in compliance with the Constitution,
the fact is of essential importance that under the said
resolution the enterprises which have the right to deal in
retail trade of alcoholic drinks may mark the imported drinks
marked with labels of the 1995 standard with labels of the
1998. Such legal regulation does not violate the right of
ownership established in Article 23 of the Constitution, as the
owners of the imported alcoholic drinks, after they have
carried out the requirements set in the resolution, have the
right to continue possessing, using and disposing of their
property.
Although the disputed Government resolution actually does
not establish that it could be permitted to mark the alcoholic
drinks manufactured in Lithuania, which are marked with labels
of the old standard, with labels of the 1998 standard, however
this does not constitute grounds to recognise the norms of the
Government resolution regulating marking of imported alcoholic
drinks with labels of the new standard as conflicting with
Article 46 and Part 1 of Article 29 of the Constitution pointed
out by the petitioner. As held in this Constitutional Court
ruling, Article 46 and Part 1 of Article 29 of the Constitution
are violated by the Government resolution of 14 January 1998
not because the said resolution provides for the right of
enterprises trading in alcoholic drinks with labels of the 1995
standard to mark these drinks with labels of the 1998 standard
after the established date but because the enterprises trading
in the alcoholic drinks manufactured in Lithuania marked with
labels of the 1995 standard were prohibited from trading,
transporting or keeping them after the established date and
that it was not provided under what procedure and on what
conditions the enterprises could, after the established date,
sell the lawfully acquired prior to the prohibitions alcoholic
drinks manufactured in Lithuania marked with labels of the old
standard which belonged to them by the right of ownership.
3.3. As mentioned in this Constitutional Court ruling, in
Article 1 of the Constitution pointed out by the petitioner
wherein it is provided that "the State of Lithuania shall be an
independent and democratic republic" the fundamental principles
of the State of Lithuania are enshrined. The disputed
Government resolution of 24 September 1998 regulates relations
of different nature, therefore this does not constitute any
grounds to assert that the said Government resolution of 24
September 1998 conflicts with Article 1 of the Constitution.
The said Government resolution does not violate the principle
of the state under the rule of law enshrined in the
Constitution, either.
Taking account of the aforesaid motives, one is to
conclude that 24 September 1998 Government Resolution No. 1149
"On Partial Amendment of 14 January 1998 Government of the
Republic of Lithuania Resolution No. 36 'On the Introduction of
Labels of the 1998 Standard for Marking Tobacco Products and
Alcoholic Drinks'" is in compliance with Article 1, Parts 1 and
3 of Article 23, Part 1 of Article 29, Article 46 of the
Constitution and the principle of the state under the rule of
law enshrined in the Constitution.
4. On the compliance of 30 November 1998 Government
Resolution No. 1383 "On the Supplementation of 14 January 1998
Government of the Republic of Lithuania Resolution No. 36 'On
the Introduction of Labels of the 1998 Standard for Marking
Tobacco Products and Alcoholic Drinks'" with Article 1, Parts 1
and 3 of Article 23, Part 1 of Article 29, Article 46 of the
Constitution and the principle of the state under the rule of
law enshrined in the Constitution.
By 30 November 1998 Government Resolution No. 1383 "On the
Supplementation of 14 January 1998 Government of the Republic
of Lithuania Resolution No. 36 'On the Introduction of Labels
of the 1998 Standard for Marking Tobacco Products and Alcoholic
Drinks'" Item 5 of the Procedure was supplemented by Paragraphs
3 and 4:
"The trade and public catering enterprises which possess
valid licences granting the right to retail trade of alcoholic
drinks shall inventory the existing remainder of the alcoholic
drinks manufactured in the Republic of Lithuania which belong
to them by the right of ownership and which are marked with
labels of the 1995 standard. In the inventory documents one
must point out the names of the alcoholic drinks, the volume
and quantity of the bottles or other packages into which the
alcoholic drinks are either bottled or packed, the series and
the number of the acquisition document and the series and the
numbers of the labels. One copy of the inventory document must
be presented to the territorial state tax inspectorate on the
territory of which there is the respective place of trade in
alcoholic drinks not later than 7 December 1998.
The State Tax Inspectorate under the Ministry of Finance
must check up the inventoried remainder, to investigate if the
alcoholic drinks had been acquired lawfully, in case of need to
establish the validity of the remainder by means of indirect
methods, while the Ministry of Finance must, until 14 December
1998, present the summary of the information concerning the
remainder of these alcoholic drinks to the Government of the
Republic of Lithuania."
In the preamble to the said Government resolution it is
noted that this resolution has been adopted in attempt to
ascertain "whether certain retail trade enterprises file
reasoned complaints that they had too little time to sell the
remainder of the alcoholic drinks manufactured in Lithuania
marked with labels of the 1995 standard".
The petitioner-a group of Seimas members-maintains that
the said Government resolution does not mention tobacco
products and that the resolution was adopted after it had been
prohibited to trade in the alcohol and tobacco products. In the
opinion of the petitioner, such legal regulation conflicts with
the principle of the state under the rule of law enshrined in
the Preamble of the Constitution, as well as Article 1, Parts 1
and 3 of Article 23, Article 46 and Part 1 of Article 29 of the
Constitution.
4.2. As mentioned, it is established by the Government
resolution of 30 November 1998 that the trade and public
catering enterprises which possess the right to retail trade of
alcoholic drinks must inventory the existing remainder of the
alcoholic drinks manufactured in the Republic of Lithuania
which belong to them by the right of ownership and which are
marked with labels of the 1995 standard, while the Ministry of
Finance must present the summary of the information concerning
the remainder of these alcoholic drinks to the Government.
Assessing whether this Government resolution is in
compliance with the Constitution, the fact is of essential
importance that under this resolution alcoholic drinks
belonging to enterprises by the right of ownership must be
inventoried. The resolution does not contain any norms
restricting the right of ownership, freedom of
commercial-economic activity, freedom of fair competition nor
any norms establishing any other restrictions or prohibitions.
The fact alone that the resolution does not mention tobacco
products and that the resolution was adopted after the fact
when the trade in alcoholic drinks manufactured in Lithuania
marked with labels of the old standard had been prohibited by
the earlier Government resolution does not constitute grounds
to consider the disputed Government resolution of 30 November
1998 as conflicting with Article 1, Parts 1 and 3 of Article
23, Part 1 of Article 29, Article 46 of the Constitution and
the principle of the state under the rule of law enshrined in
the Constitution.
Taking account of the motives set forth, it is to be
concluded that 30 November 1998 Government Resolution No. 1383
"On the Supplementation of 14 January 1998 Government of the
Republic of Lithuania Resolution No. 36 'On the Introduction of
Labels of the 1998 Standard for Marking Tobacco Products and
Alcoholic Drinks'" is in compliance with Article 1, Parts 1 and
3 of Article 23, Part 1 of Article 29, Article 46 of the
Constitution and the principle of the state under the rule of
law enshrined in the Constitution.
5. On the compliance of Item 5 of the Procedure for
Marking Alcoholic Drinks Manufactured and Sold in the Republic
of Lithuania with Labels of the 1998 Standard approved by
Sub-Item 6.4 of 14 January 1998 Government of the Republic of
Lithuania Resolution No. 36 "On the Introduction of Labels of
the 1998 Standard for Marking Tobacco Products and Alcoholic
Drinks" with Part 1 of Article 8 and Part 1 of Article 12 of
the Law on Enterprises.
5.1. The petitioner-the Rokiškis District Local Court-in
the resolution part of his petition requests to investigate
whether Item 5 of the Procedure approved by the Government
resolution of 14 January 1998 is in compliance with Articles 8
and 12 of the Law on Enterprises. However, in the argumentative
part of the petition the request of the petitioner is based not
upon whole Articles 8 and 12 but only upon Part 1 of Article 8
and Part 1 of Article 12 of the Law on Enterprises. Taking
account of this, the Constitutional Court will investigate if
Item 5 of the Procedure approved by the Government resolution
of 14 January 1998 is in compliance with Part 1 of Article 8
and Part 1 of Article 12 of the Law on Enterprises.
5.2. Part 1 of Article 8 of the Law on Enterprises
provides:
"The general partnership is an unlimited liability
enterprise established on the basis of a partnership agreement
by several natural or legal persons by combining their property
under a plan of co-ownership with the aim of conducting joint
economic-commercial activities under the common name of the
firm. The general partnership shall not have the rights of a
legal person, and its property shall be inseparable from the
property of the individual partners. The general partners shall
be jointly liable for the obligations of its partners. The
general partnership shall not be liable for obligations of its
members which are incurred through activity not related to the
activity of the general partnership."
Thus, in Part 1 of Article 8 of the Law on Enterprises the
legal status of one type of enterprises, i.e. the general
partnership, is defined, as well as the main elements are
pointed out by means of which these enterprises are
distinguished from among others. Part 1 of Article 8 of the Law
on Enterprises does not regulate commercial-economic activity
carried out by the general partnership, therefore Item 5 of the
Procedure for Marking Alcoholic Drinks Manufactured and Sold in
the Republic of Lithuania with Labels of the 1998 Standard
approved by the Government resolution of 14 January 1998 is in
compliance with Part 1 of Article 8 of the Law on Enterprises.
5.3. Part 1 of Article 12 of the Law on Enterprises
provides:
"The enterprise shall have the right to engage in any
commercial-economic or other activities, which are not
restricted by this or other laws, or the enterprise foundation
documents, or are not otherwise prohibited in the manner
prescribed by laws. The sphere of economic-commercial
activities which requires a licence to engage in, also the
institutions which issue licences and the licence issuing
procedure shall be established by this and other laws."
Thus Part 1 of Article 12 of the Law on Enterprises
provides for common bases of economic activities of
enterprises, and establishes a provision that certain
commercial-economic activity is allowed only under licence. It
needs to be noted that particular commercial-economic activity
of enterprises is not regulated by Part 1 of Article 12 of the
Law.
Taking account of the aforesaid motives, it is to be
concluded that Item 5 of the Procedure for Marking Alcoholic
Drinks Manufactured and Sold in the Republic of Lithuania with
Labels of the 1998 Standard approved by the Government
resolution of 14 January 1998 to the extent that wholesale
enterprises are prohibited from trading in the alcoholic drinks
manufactured in Lithuania marked with labels of the old
standard, as well as from transporting and storing them in
commercial, administrative and subsidiary premises of trade or
public catering enterprises or keeping them in any other places
as of 1 June 1998, while other enterprises are prohibited from
doing so as of 1 August 1998, is in compliance with Part 1 of
Article 12 of the Law on Enterprises.
Taking account of the aforesaid arguments and conforming
to Article 102 of the Constitution of the Republic of Lithuania
and Articles 53, 54 and 56 of the Republic of Lithuania Law on
the Constitutional Court, the Constitutional Court has passed
the following
ruling:
1. To recognise that Item 5 of the Procedure for Marking
Alcoholic Drinks Manufactured and Sold in the Republic of
Lithuania with Labels of the 1998 Standard approved by Sub-Item
6.4 of 14 January 1998 Government of the Republic of Lithuania
Resolution No. 36 "On the Introduction of Labels of the 1998
Standard for Marking Tobacco Products and Alcoholic Drinks" to
the extent that wholesale enterprises are prohibited from
trading in the alcoholic drinks manufactured in Lithuania
marked with labels of the old standard, as well as from
transporting and storing them in commercial, administrative and
subsidiary premises of trade or public catering enterprises or
keeping them in any other places as of 1 June 1998, while other
enterprises are prohibited from doing so as of 1 August 1998 in
the absence of a provision under what procedure and on what
conditions the enterprises are permitted to sell the alcoholic
drinks manufactured in Lithuania marked with labels of the old
standard which were lawfully acquired prior to the introduction
of the said prohibitions and which belonged to them by the
right of ownership conflicts with Article 23, Part 1 of Article
29, Article 46 and of the Constitution of the Republic of
Lithuania and the principle of the state under the rule of law
enshrined in the Constitution of the Republic of Lithuania.
2. To recognise that Item 5 of the Procedure for Marking
Alcoholic Drinks Manufactured and Sold in the Republic of
Lithuania with Labels of the 1998 Standard approved by Sub-Item
6.4 of 14 January 1998 Government of the Republic of Lithuania
Resolution No. 36 "On the Introduction of Labels of the 1998
Standard for Marking Tobacco Products and Alcoholic Drinks" is
in compliance with Part 1 of Article 8 and Part 1 of Article 12
of the Republic of Lithuania Law on Enterprises.
3. To recognise that 24 September 1998 Government of the
Republic of Lithuania Resolution No. 1149 "On Partial Amendment
of 14 January 1998 Government of the Republic of Lithuania
Resolution No. 36 'On the Introduction of Labels of the 1998
Standard for Marking Tobacco Products and Alcoholic Drinks'" is
in compliance with Article 1, Parts 1 and 3 of Article 23, Part
1 of Article 29, Article 46 and of the Constitution of the
Republic of Lithuania and the principle of the state under the
rule of law enshrined in the Constitution 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.