Lietuviškai
THE CONSTITUTIONAL COURT OF
THE REPUBLIC OF LITHUANIA
R U L I N G
On the compliance of the Government of the
Republic of Lithuania Decision "On the request of
the company 'Danisco Sugar' A/S to acquire certain
shares of sugar sector enterprises" entered into
the minutes of the sitting of 22 July 1998 of the
Government of the Republic of Lithuania with the
Constitution of the Republic of Lithuania and on
the compliance of the provisions of Articles 3 and
8 of the Republic of Lithuania Law "On Procedure
of Publication and Coming Into Force of Republic
of Lithuania Laws and Other Legal Acts" with the
Constitution of the Republic of Lithuania
Vilnius, 29 November 2001
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 representatives of the petitioner-a group of members
of the Seimas of the Republic of Lithuania-the Seimas members
Vytautas Einoris, Petras Gražulis, Juozas Olekas, and the
advocate Jonas Masiokas,
the representatives of the party concerned-the Government
of the Republic of Lithuania-Rimvydas Pilibaitis, an advisor to
the Department of Law and Law Enforcement of the Office of the
Government, Rimantas Krasuckas, Director of the Department of
Agricultural Development and Food of the Ministry of
Agriculture of the Republic of Lithuania, and Giedrė Aleknaitė,
a senior lawyer at the Legal Division of the state enterprise
State Property Fund,
pursuant to Paragraph 1 of Article 102 of the Constitution
of the Republic of Lithuania and Paragraph 1 of Article 1 of
the Republic of Lithuania Law on the Constitutional Court, on 7
November 2001 in its public hearing conducted the investigation
of Case No. 12/2000 subsequent to the petition of the
petitioner-a group of members of the Seimas of the Republic of
Lithuania-requesting the investigation into the compliance of
the Government Decision "On the request of the company 'Danisco
Sugar' A/S to acquire certain shares of sugar sector
enterprises" entered into the minutes of the sitting of 22 July
1998 of the Government of the Republic of Lithuania with
Paragraphs 1, 4 and 5 of Article 46 and Paragraph 1 of Article
95 of the Constitution of the Republic of Lithuania, Articles 6
and 11 of the Republic of Lithuania Law on Competition (enacted
on 15 September 1992), Article 2 of the Law on the Government
of the Republic of Lithuania, and Articles 2 and 8 of the
Republic of Lithuania Law "On Procedure of Publication and
Coming Into Force of Republic of Lithuania Laws and Other Legal
Acts".
The Constitutional Court
has established:
I
The minutes of the Government sitting of 22 July 1998
contain the Decision "On the request of the company 'Danisco
Sugar' A/S to acquire certain shares of sugar sector
enterprises" whereby the Government approved of the request of
the Danish company "Danisco Sugar" A/S to acquire 75 percent of
the authorised capital of the joint-stock company "Kėdainių
cukrus", 69.31 percent of the authorised capital of the
joint-stock company "Panevėžio cukrus", 25.25 percent of the
authorised capital of the joint-stock company "Marijampolės
cukrus" and 29. 64 percent of the authorised capital of the
joint-stock company "Pavenčių cukrus" (the decision has not
been published in the official gazette Valstybės žinios, the
extract from the minutes of the Government sitting of 22 July
1998 was received together with the petition of the group of
Seimas members).
The petitioner-a group of Seimas members-requests that the
Constitutional Court consider the compliance of the Government
Decision "On the request of the company 'Danisco Sugar' A/S to
acquire certain shares of sugar sector enterprises" entered
into the minutes of the Government sitting of 22 July 1998 with
Paragraphs 1, 4 and 5 of Article 46 and Paragraph 1 of Article
95 of the Constitution, Articles 6 and 11 of the 15 September
1992 Law on Competition (hereinafter referred to as the Law on
Competition), Article 2 of the Law on the Government, and
Articles 2 and 8 of Law "On Procedure of Publication and Coming
Into Force of Republic of Lithuania Laws and Other Legal Acts".
II
The request of the petitioner is based on the following
arguments.
1. By the disputed governmental decision an opportunity
was created for one economic entity to attain a dominant
position in the sugar market. According to the petitioner, this
Government decision may be in conflict with Paragraph 1 of
Article 46 of the Constitution wherein it is established that
Lithuania's economy shall be based on the right to private
ownership, freedom of individual economic activity, and
initiative.
2. The Government, by its decision approving of the
request of the company "Danisco Sugar" A/S to acquire shares of
four sugar factories operating in Lithuania, permitted this
company to monopolise the sugar production in Lithuania. This
conflicts with the prohibition to monopolise production and the
market, which is set down in Paragraph 4 of Article 46 of the
Constitution. The prohibition of monopolisation of production
and of the market along with fair competition are a necessary
condition of functioning of the market economy. It permits to
distribute economic resources in an optimal manner, promotes
economic development and satisfaction of consumers' interests.
The legalisation of the monopoly excludes fair competition in
the sugar sector market and creates conditions for the
monopolist to exert one-sided decisive influence in the sugar
market.
The petitioner maintains that one is not permitted to
introduce a monopoly, i.e. one is not permitted to grant
exclusive rights by law to an economic entity to operate in a
certain economic sector due to which this sector would become
monopolised, however, under certain circumstances one is
permitted to state in a law the existence of monopoly in a
particular area of economic activity. At the time of the
adoption of the disputed legal act by the Government, four
independent sugar factories operated in the Lithuanian sugar
sector, while not a single one dominated in the sugar market.
The disputed governmental decision permitted to create a new
monopoly.
3. After the Government had adopted the disputed decision,
the interests of consumers became restricted. Alongside, the
real, legal mechanisms of protection of consumers' rights have
not been established. Therefore, in the opinion of the
petitioner, the disputed decision conflicts with Paragraph 5 of
Article 46 of the Constitution wherein it is established that
the state shall defend the interests of the consumers.
4. The petitioner points out that the powers of the
Government shall be defined by the Constitution and laws
(Article 2 of the Law on the Government). The petitioner is of
the opinion that the Government, while adopting the disputed
decision, exceeded the powers granted to it.
4.1. Article 11 of the Law on Competition stipulated that
permission to concentrate market structures which had not been
approved by the institution of price and competition might be
granted by a decision of the Government if the parties involved
in the concentration provided substantiation proving that the
action in question would result in the increase of economic
efficiency of production or competitiveness of goods, which
could not be achieved in any other ways other than by the
suggested concentration of market structures.
The State Service for Competition and Protection of
Consumer Interests recognised that the intention to monopolise
the sugar production market conflicted with the Law on
Competition, and, on 14 July 1998, adopted a decision not to
allow the company "Danisco Sugar" A/S to acquire some shares of
the Lithuanian sugar factories. In the case of the existence of
such a decision of the State Service for Competition and
Protection of Consumer Interests, the Government was entitled
to give its permission to concentrate market structures without
exceeding the powers granted to it by Article 11 of the Law on
Competition. This permission ought to have been substantiated
realistically.
It is pointed out in the minutes of the Government sitting
of 22 July 1998 that the permission to implement the
concentration of market structures is based on the aim "to
attract a big company operating in the European Union market,
which might make more investments and repay the debts for the
farmers, and which might ensure buying up sugar beets and their
processing in Lithuania".
It is pointed out in the request of the petitioner that
during the period after the adoption of the disputed
governmental decision, the debts for the farmers of the sugar
factories under control of the company "Danisco Sugar" A/S have
not been repaid, there have been no investments into the sugar
factories, and fair competition has practically been eliminated
from the sugar production market. This shows that the disputed
governmental decision was adopted without a proper prior
analysis, and the motives of the decision were not in line with
the requirements of Article 11 of the Law on Competition.
4.2. The Government, while adopting the decision on
permission to implement sugar production concentration under
Article 11 of the Law on Competition, ought to have taken
account of Article 6 of the Law on Competition, which
prohibited the Government from adopting normative acts or carry
out activities which granted privileges to or discriminated
against individual economic entities, or which otherwise
restricted competition.
4.3. The Government, while considering the request of the
company "Danisco Sugar" A/S on permission to acquire some
shares of the sugar factories, should also have taken account
of the fact that that the relations between sugar market
participants and state institutions are regulated by the Law on
Sugar. The petitioner points out that the monopolisation of the
sugar production and market is a prerogative of the legislator
but not of the Government. Therefore, the Government, under the
commissioning set down in Item 5 of Article 94 of the
Constitution, was entitled to draft a supplement to the Law on
Sugar and submit it for the Seimas for consideration, so that
the monopolisation of sugar production would be legalised in
the said law. In the opinion of the petitioner, it is only the
Seimas, which, striving to regulate economic activity so that
it would serve the general welfare of the people and the
interests of consumers, may introduce the monopoly by law. By
its decision permitting to monopolise the sugar market, the
Government exceeded the powers granted to it.
In the opinion of the petitioner, as the disputed
governmental decision was adopted in violation of Articles 6
and 11 of the Law on Competition and this Government decision
permitted to monopolise the sugar market, while the Seimas had
not made respective amendments to the Law on Sugar before, thus
this Government decision conflicts with Article 2 of the Law on
the Government.
5. The petitioner points out that the Government, while
adopting the disputed decision on the request of the company
"Danisco Sugar" A/S, violated the procedure of adoption,
publication and going into effect of governmental acts, which
is established in the Constitution and laws.
Under Article 95 of the Constitution, the Government of
the Republic of Lithuania shall resolve the affairs of state
administration at its sittings by adopting resolutions which
must be passed by a majority vote of all members of the
Government. The Government decision on permission to create the
sugar production monopoly, in the case of the disapproving
decision of the institution of competition and protection of
consumer interests, is to be held an affair of state
administration. The petitioner maintains that such a decision
ought to have been registered officially by a Government
resolution signed by the Prime Minister and the appropriate
minister. The disputed governmental decision does not conform
to these requirements established in the Constitution.
In the opinion of the petitioner, the disputed legal act,
according to its legal meaning, may not be considered a legal
act addressed only to one entity-the company "Danisco Sugar"
A/S. The permission to create the sugar production monopoly
concerns the interests of many more entities, therefore, under
Article 2 of the Law "On Procedure of Publication and Coming
Into Force of Republic of Lithuania Laws and Other Legal Acts",
such a Government resolution ought to have been published in
the official gazette Valstybės žinios, while under Article 8 of
the same law, it ought to have come into force following the
day, when, having been signed by the Prime Minister or the
appropriate minister, it was published in the official gazette
Valstybės žinios. The disputed governmental decision conflicts
with Article 2 and Paragraph 1 of Article 8 of the Law "On
Procedure of Publication and Coming Into Force of Republic of
Lithuania Laws and Other Legal Acts".
III
1. In the course of the preparation of the case for the
Constitutional Court hearing, written explanations were
received from the representatives of the party concerned-the
Government-A. Maziliauskas, R. Pilibaitis and A. Šukys. The
following arguments were presented by the representatives of
the party concerned.
1.1. By its Resolution No. 228 "On the Approval of the
List of Objects Subject to Privatisation" of 23 February 1998,
the Government approved the 1998 list of objects subject to
privatisation, into which four Lithuanian sugar factories were
entered as well. It was decided to sell at that time
state-owned 0.72 percent of shares of the joint-stock company
"Panevėžio cukrus", 0.01 percent of shares of the joint-stock
company "Kėdainių cukrus", 20.36 percent of shares of the
joint-stock company "Pavenčių cukrus" and 24.89 percent of
shares of the joint-stock company "Marijampolės cukrus" by way
of public auction. The Government approved the privatisation
programme of the state-owned blocks of shares of sugar
factories and the privatisation programmes of the joint-stock
companies "Pavenčių cukrus" and "Marijampolės cukrus", which
had been prepared by the Ministry of Agriculture and Forestry
by taking account of suggestions made by the Rural Affairs
Committee of the Seimas.
The Government established that a potential purchaser of
the enterprise had to be someone who dealt with processing of
sugar beets, i.e. a sugar producer with the yearly European
Union sugar production quota of not less than 800 thousand
tons; the purchaser had to commit himself to make investments
into modernisation of the enterprise as well as into sugar beet
growing technologies, to prepare the 1998 programme of debt
repayment for sugar beet growers for the sugar beets supplied
in 1997, to produce sugar while giving preference to sugar
beets grown in Lithuania, and to preserve the traditional sugar
beet growing zones. The Government also established that the
sugar buying up and production quotas as well as the minimal
margin prices of buying up shall be established by the
Government or an institution commissioned by the Government.
1.2. The representatives of the party concerned point out
that the Government attempted to attract a big company
operating in the European Union which might be interested and
would be able to invest into the increase of production, to
repay the debts for sugar beet growers, which would guarantee
buying up of sugar beets and their processing in Lithuania, and
which would protect not only the interests of consumers but
also those of sugar beet growers. Thereby it was attempted to
realise the principle of freedom of individual economic
activity and initiative entrenched in Article 46 of the
Constitution, as well as the constitutional provisions that the
"State shall support economic efforts and initiative which are
useful to the community", and that the "State shall regulate
economic activity so that it serves the general welfare of the
people".
The representatives of the party concerned are of the
opinion that due to the aforementioned arguments the disputed
governmental decision is in compliance with Paragraph 1 of
Article 46 of the Constitution.
1.3. The representatives of the party concerned emphasise
that the Government did not grant any exceptional market
advantages to the foreign investor, and a new monopoly was not
created. Conforming to Article 11 of the Law on Competition and
attempting to protect consumers' interests, the Government
permitted the company "Danisco Sugar" A/S, upon the
accomplishment by the said company of most of the conditions
pointed out in the decision, to concentrate part of the market
only. This Government decision did not violate the requirements
of the Law on Competition as the said law prohibited such
activities of economic entities having a dominant position in
the market which restricted or might restrict competition by
infringing interests of the overall economy. In the question at
issue the aforesaid company merely gained the right to dispose
of part of the capital of other economic entities.
According to the representatives of the party concerned,
in case one regarded the Government decision as monopolisation
of the market, it could not be in conflict with Paragraph 4 of
Article 46 of the Constitution, as the Government, conforming
to the Law on Sugar and other legal acts, makes great demands
of sugar producers so that the interests of both sugar beet
growers and sugar consumers may be protected. Even if an
opportunity was created to attain a dominant position in the
market by this Government decision, it would be impossible to
regard it as monopolisation of the production and the market,
as the Government had warned the foreign investors in advance
that the state would not grant any exclusive rights in the
buying up and processing of sugar beets, and that it would
control this market by way of adopting legal acts guaranteeing
the economic protection of sugar beet growing, buying up, and
processing quotas.
1.4. The representatives of the party concerned point out
that the Government, in attempt to protect the interests of
sugar beet growers and consumers, established strict conditions
of sugar and those of privatisation of sugar factories,
therefore the disputed governmental decision is in conformity
with Paragraph 5 of Article 46 of the Constitution.
1.5. The representatives of the party concerned point out
that the Government, conforming to Paragraph 2 of Article 11 of
the Law on Competition, adopted the decision in attempt to
attract a big and strong company, which might invest into the
modernisation of production, acquisition of new facilities, and
which might eliminate the critical situation which had arisen
in the Lithuanian sugar market. By the decision of the
Government, an opportunity was created to increase the economic
efficiency of production, therefore the decision is in
compliance with Paragraph 2 of Article 11 of the Law on
Competition.
The representatives of the party concerned maintain that
the Government did not violate Article 6 of the Law on
Competition either, wherein bodies of state authority and
government are prohibited from adopting normative acts or
carrying out activities which grant privileges to or
discriminate against individual economic entities, or which
otherwise restrict competition. According to the
representatives of the party concerned, the said provision of
the law is not applicable in cases when concentration
permissions are issued in attempt to increase economic
efficiency of production and competitiveness of goods. Article
6 of the Law on Competition is applicable in cases when
competition is restricted by other ways.
The representatives of the party concerned note that the
disputed governmental decision attempted to neutralise the
influence of the excess and subsidised sugar export from the
European Union and world markets on the Lithuanian sugar
sector, and it was virtually attempted to attract a credible
foreign capital strategic investor useful to the Lithuanian
economy without resorting to the means of market
monopolisation. The Government did not have to propose
amendments to the Law on Competition before the adoption of the
said decision, as this decision permitted the company "Danisco
Sugar" A/S to concentrate the sugar market but not to
monopolise it.
According to the representatives of the party concerned,
the Government, while adopting the disputed decision, did not
exceed the powers granted to it, therefore this Government
decision is in conformity with Article 2 of the Law on the
Government.
1.6. The representatives of the party concerned point out
that the provision of Paragraph 1 of Article 95 of the
Constitution that "the Government of the Republic of Lithuania
shall resolve the affairs of State administration at its
sittings by adopting resolutions which must be passed by a
majority vote of all members of the Government" is
particularised in laws. Article 41 of the Law on the Government
provides that resolutions and decisions of the Government of
the Republic of Lithuania shall be passed at the Government
sittings by a majority vote of all Government members. Under
Paragraph 2 of Article 11 of the Law on Competition, a written
decision was necessary for concentration of the market, while
the said law did not point out in a commanding manner that
Government decisions of such nature had to be made official in
the form of a resolution.
Item 5 of the Government Work Regulation approved by
Government Resolution No. 728 "On the Approval of the
Government Work Regulation" of 11 August 1994 provides that
joint decisions of the Government for which it is not necessary
to adopt resolutions shall be made official by corresponding
records in the minutes. Implementing the powers granted to it
by Items 1, 2 and 7 of Article 94 of the Constitution and
exercising the right granted to it by the Law on Competition to
permit by the written decision to concentrate market
structures, the Government made its decision official by the
form of a protocol decision under the then procedure
established by the Government Work Regulation. In the opinion
of the representatives of the party concerned, this is in
compliance with Paragraph 1 of Article 95 of the Constitution.
1.7. According to the representatives of the party
concerned, the disputed governmental decision created the
rights and obligations for one company only, i.e. "Danisco
Sugar" A/S, but not for all participants in the sugar market.
This is a legal act of individual character, it is of
extraordinary applicability, and it is devoid of the signs of a
normative legal act. Under Article 2 of the Law "On Procedure
of Publication and Coming Into Force of Republic of Lithuania
Laws and Other Legal Acts", only normative legal acts are to be
published. As the disputed decision of the Government is not a
normative legal act, it was not necessary to publish it in the
official gazette Valstybės žinios, while the date of its coming
into force is not to be linked with the date of its official
publication in the official gazette Valstybės žinios.
2. In the course of the preparation of the case for the
Constitutional Court hearing, a written note was also received
from the representatives of the party concerned-the
Government-R. Krasuckis and G. Aleknaitė, wherein they pointed
out that they agree with the arguments set down in the written
explanations by the representatives of the party concerned-the
Government-A. Maziliauskas, R. Pilibaitis and A. Šukys.
IV
In the course of the preparation of the case for the
Constitutional Court hearing, written explanations were
received from R. Stanikūnas, Chairman of the Competition
Council of the Republic of Lithuania, as well as from the
European Law Department under the Government of the Republic of
Lithuania, the Ministry of Justice of the Republic of
Lithuania, and from the specialists Prof. Habil. Dr. A.
Pajuodis, Prof. Habil. Dr. A. Poviliūnas, Prof. Habil. Dr. V.
Vengrauskas, Assoc. Prof. Dr. N. Balčiūnas and Assoc. Prof. Dr.
V. Kinduris, all they work at the Faculty of Economics, Vilnius
University, and from the specialists R. Šimašius and R.
Vilpišauskas, experts from the Lithuanian Free Market
Institute.
V
At the Constitutional Court hearing, the representatives
of the petitioner-a group of Seimas members-V. Einoris, P.
Gražulis, J. Olekas and the advocate J. Masiokas virtually
reiterated the arguments set down in the petition.
At the Constitutional Court hearing, the representatives
of the party concerned-the Government-R. Pilibaitis, R.
Krasuckis and G. Aleknaitė virtually reiterated the arguments
set down in the written explanations presented to the
Constitutional Court.
At the Constitutional Court hearing, explanations were
also presented by R. Stanikūnas, Chairman of the Competition
Council, and R. Šimašius, a specialist.
The Constitutional Court
holds that:
I
1. The Decision "On the request of the company 'Danisco
Sugar' A/S to acquire certain shares of sugar sector
enterprises" was entered into the minutes of the Government
sitting of 22 July 1998:
"Conforming to Article 11 of the 15 September 1992
Republic of Lithuania Law on Competition and in attempt to
attract a big company operating in the European Union market,
which might make more investments and repay the debts for the
farmers, and which would ensure buying up sugar beets and their
processing in Lithuania, to approve of the request of the
Danish company 'Danisco Sugar' A/S to acquire 75 percent of the
authorised capital of the joint-stock company 'Kėdainių
cukrus', 69.31 percent of the authorised capital of the
joint-stock company 'Panevėžio cukrus', 25.25 percent of the
authorised capital of the joint-stock company 'Marijampolės
cukrus', and 29.64 percent of the authorised capital of the
joint-stock company 'Pavenčių cukrus', if the said company
fulfils the following conditions:
The said company presents, under the procedure established
by the Government of the Republic of Lithuania, the documents
conforming to the requirements for the privatisation programme
in order to take part in the public auction on the acquisition
of the shares owned by the state by right of ownership of the
joint-stock company 'Pavenčių cukrus' and those of the
joint-stock company 'Marijampolės cukrus' and subsequently
takes part in the said auction held by the state enterprise
State Property Fund;
In case the said company wins the auction on the
acquisition of the shares owned by the state by right of
ownership of the joint-stock company 'Pavenčių cukrus' and
those of the joint-stock company 'Marijampolės cukrus', it
signs, under established procedure, an agreement of purchase
and sale of the aforesaid shares and pays the shares'
acquisition price fixed at the auction."
It was also entered into the minutes of the Government
sitting that all the members participating in the sitting
approved of this decision.
2. In the opinion of the petitioner, the Decision "On the
request of the company 'Danisco Sugar' A/S to acquire certain
shares of sugar sector enterprises" entered into the minutes of
the Government sitting of 22 July 1998 conflicts with Paragraph
1 of Article 95 of the Constitution according to its form, the
procedure of its adoption and signing, while according to the
procedure of its publication and coming into force, the said
decision conflicts with Articles 2 and 8 of the Law "On
Procedure of Publication and Coming Into Force of Republic of
Lithuania Laws and Other Legal Acts".
In the opinion of the petitioner, the aforementioned
Government decision also conflicts with Paragraphs 1, 4 and 5
of Article 46 of the Constitution, Articles 6 and 11 of the Law
on Competition which were in force then, as well as with
Article 2 of the Law on the Government.
II
1. The Government is an institution of the executive power
of the state. The Government is jointly responsible to the
Seimas for the general activities of the Government. The
Government exercises the function of state administration
according to the powers granted to it.
2. Article 94 of the Constitution provides:
"The Government of the Republic of Lithuania shall:
1) administer the affairs of the country, protect the
inviolability of the territory of the Republic of Lithuania,
and ensure State security and public order;
2) implement laws and resolutions of the Seimas concerning
the implementation of laws, as well as the decrees of the
President of the Republic;
3) coordinate the activities of the ministries and other
governmental establishments;
4) prepare a draft budget of the State and submit it to
the Seimas; execute the State Budget and report on the
fulfilment of the budget to the Seimas;
5) draft bills and submit them to the Seimas for
consideration;
6) establish diplomatic relations and maintain relations
with foreign countries and international organisations; and
7) discharge other duties prescribed to the Government by
the Constitution and other laws."
The powers of the Government are also established in Item
3 of Article 84, Paragraph 1 of Article 123, Paragraph 1 of
Article 128 of the Constitution as well as in its other
articles.
3. The powers of the Government arise from the
Constitution and laws. Everything that the Government performs,
while implementing the powers established for it in the
Constitution and laws, is resolving of the affairs of state
administration.
4. Article 95 of the Constitution provides:
"The Government of the Republic of Lithuania shall resolve
the affairs of State administration at its sittings by adopting
resolutions which must be passed by a majority vote of all
members of the Government. The State Controller may also
participate in the sittings of the Government.
Governmental resolutions shall be signed by the Prime
Minister and the appropriate Minister."
4.1. While construing the norm "the Government of the
Republic of Lithuania shall resolve the affairs of State
administration at its sittings by adopting resolutions which
must be passed by a majority vote of all members of the
Government" of Paragraph 1 of Article 95 of the Constitution,
in its ruling of 23 November 1999 the Constitutional Court held
that the aforesaid norm establishes the organisational form of
the activity of the Government (i.e. questions are decided in
Government sittings), it is indicated therein as to what kind
of majority vote is necessary in order to adopt a resolution
(i.e. it must be passed by a majority vote of all members of
the Government), and the type of the legal act to be adopted by
the Government is established therein (i.e. state
administration affairs are decided by adopting a resolution of
the Government).
Thus, under Paragraph 1 of Article 95 of the Constitution,
all questions of state administration which are attributed to
the powers of the Government by the Constitution and laws, are
decided by adoption of resolutions. A Government resolution is
a legal act whereby the Government resolves the affairs of
state administration. The affairs of state administration may
not be decided by the Government adopting an act of a different
type.
4.2. The Constitution employs not only the notion
"governmental resolutions" but also the notions "legal acts of
the Government" (e.g. Articles 105 and 106 of the
Constitution), "decisions of the Government" (e.g. Article 123
of the Constitution). The notion employed in the Constitution
"decisions of the Government", as well as the notion "legal
acts of the Government", is a common one: it does not define
the type of governmental legal acts but means a statement of
the will of the Government in its exercise of the powers
entrusted to it. Only one type of legal acts of the Government
that it is entitled to adopt, while resolving the affairs of
sate administration, is established in the Constitution, which
is a resolution.
4.3. A Government resolution is a substatutory legal act.
Under Paragraph 2 of Article 95 of the Constitution,
governmental resolutions shall be signed by the Prime Minister
and the appropriate Minister.
4.4. The principle of a law-governed state is entrenched
in the Constitution. One of the elements of the principle of a
law-governed state is that the power of legal acts is
prospective. In its ruling of 16 March 1994, the Constitutional
Court held: "The power of a law or other legal act is
prospective. It is not possible to require from the person to
keep to the rules that did not exist in the time of his
activities and, therefore, he was not likely to know future
requirements." Also, an essential element of the principle of a
law-governed state is that only published legal acts are
effective. Law may not be non-public. The constitutional
requirements that only published legal acts be effective and
that they be published are an important precondition of legal
certainty. Under the Constitution, the Government, while
resolving affairs of state administration, must always adopt
resolutions, and they must be published regardless of whether
the legal acts adopted by the Government are normative or
individual, as well as regardless of the fact as to what
entities or circles of entities they are meant.
The procedure of publication of Government resolutions and
their coming into force is established by the law.
III
1. The petitioner points out that by the Decision "On the
request of the company 'Danisco Sugar' A/S to acquire certain
shares of sugar sector enterprises" entered into the minutes of
the 22 July 1998 Government sitting the affairs of state
administration were being resolved, therefore, under Article 95
of the Constitution, a Government resolution ought to have been
adopted, which should have been signed by the Prime Minister
and the appropriate Minister.
The representatives of the party concerned point out that
the provision of Paragraph 1 of Article 95 of the Constitution
that the Government shall resolve the affairs of state
administration at its sittings by adopting resolutions which
must be passed by a majority vote of all members of the
Government is particularised in laws. Article 41 of the Law on
the Government provides that resolutions and decisions of the
Government shall be passed at the Government sittings by a
majority vote of all Government members. Under Paragraph 2 of
Article 11 of the Law on Competition, the Government was
entitled to give its permission for concentration of the market
by its written decision, while the said law did not point out
in a commanding manner that Government decisions of such nature
had to be made official in the form of a resolution.
2. While considering whether the disputed Decision "On the
request of the company 'Danisco Sugar' A/S to acquire certain
shares of sugar sector enterprises" adopted by the Government
is in conformity with Article 95 of the Constitution, one has
to assess whether by the said decision an affair of state
administration was being resolved.
3. It was entered into the minutes of the Government
sitting of 22 July 1998, that the Government Decision "On the
request of the company 'Danisco Sugar' A/S to acquire certain
shares of sugar sector enterprises" was adopted on the grounds
of Article 11 of the Law on Competition.
By Paragraph 2 of Article 11 of the Law on Competition
which was in force at the time of the adoption of the disputed
governmental decision, the Government, if there existed the
conditions pointed out in the law, was entitled to give its
permission to concentrate market structures by its written
decision.
Article 2 of the Law on Competition defined the notion
"market concentration" as a merger of two or more economic
entities or the acquisition by one economic entity of the right
to have either all or part of the total capital of another
economic entity at its disposal, as well as the conclusion of
contracts which have influence over the managing decisions made
by one of the economic entities, due to which a dominant
position in the market is attained and competition is
restricted.
4. Paragraph 1 of Article 10 of the Law on Competition
provided that, if by virtue of agreement or acquisition of a
controlling interest the maximum concentration of market
structures, which was established by the Competition Council,
was exceeded, the party or parties involved in the
concentration had to notify the institution of price and
competition before undertaking any steps which might alter the
permanent market structure and the degree of its concentration.
At the time of the adoption of the disputed governmental
decision, the State Service for Competition and Protection of
Consumer Interests was such an institution.
5. Paragraph 2 of Article 11 of the Law on Competition
provided: "Permission to concentrate market structures which
has not been approved by the Institution of Price and
Competition may be granted by the written decision of the
Government of the Republic of Lithuania. Such permission may be
granted if the parties involved in the concentration provide
substantiation proving that this action will result in the
increase of economic efficiency of production or
competitiveness of goods, which cannot be attained in any ways
other than by the suggested concentration of market
structures."
6. On 3 July 1998, the company "Danisco Sugar" A/S applied
to the State Service for Competition and Protection of Consumer
Interests and informed it about prospective concentration of
the sugar market structures by way of acquisition of certain
shares of four sugar factories operating in Lithuania.
On 14 July 1998, the State Service for Competition and
Protection of Consumer Interests decided not to give its
permission for the aforementioned company to acquire up to 75
percent of shares of the joint-stock company "Kėdainių cukrus",
up to 69.31 percent of shares of the joint-stock company
"Panevėžio cukrus", up to 25.25 percent of shares of the
joint-stock company "Marijampolės cukrus", and up to 29.64
percent of shares of the joint-stock company "Panevėžio
cukrus". The State Service for Competition and Protection of
Consumer Interests pointed out: "The aforesaid enterprises
occupy rather significant sectors of the sugar market, however,
there is not a distinct dominant economic entity. Upon
assessment of all the presented data, the prospective
concentration would cover 90 percent of the sugar market. <...>
The prospective concentration is held to be horizontal in the
sugar market. The degree of the sugar market concentration may
be changed significantly, i.e. a dominant position may be
attained in the sugar market."
Article 2 of the Law on Competition contained the
following definition of the notion "dominant position":
"dominant position"-the position of an economic entity in the
market which allows for the possibility to unilaterally and
decisively influence that market. The economic entity cannot be
considered to have a dominant position if its market share of
certain goods is not more than 40 percent.
7. After the State Service for Competition and Protection
of Consumer Interests had not approved of the concentration of
the sugar market structures, the company "Danisco Sugar" A/S
appealed to the Government for the permission to concentrate
the sugar market structures and presented a substantiation of
the concentration expediency.
In its sitting of 22 July 1998, the Government approved of
the request of the company "Danisco Sugar" A/S for permission
to acquire certain shares of the four sugar factories operating
in Lithuania. It was entered into the minutes of the Government
sitting that such a decision was adopted in order to attract a
big company operating in the EU market, which might make more
investments and repay the debts to the farmers, as well as
guarantee the buying up and processing of sugar beets in
Lithuania.
8. By its Decision "On the request of the company 'Danisco
Sugar' A/S to acquire certain shares of sugar sector
enterprises", the Government permitted the concentration of the
sugar market. The regulation established in the said Government
decision exerts influence on the overall sugar market of this
country, while the entities of the sugar market are, along with
the company "Danisco Sugar" A/S at the request of which the
issue of the concentration of sugar market structures was
decided, the joint-stock enterprises listed in the decision,
other entities of the sugar market, the entities preparing
public auctions, the institutions supervising the processes of
concentration of market structures, as well as the consumers.
The existence of a dominant position in the market obligates
the state to ensure an opportunity of fair competition in the
concentrated market, and to provide for the measures so that
the interests of the consumers may be protected against an
imposition of unfavourable conditions in their respect by the
economic entity occupying the dominant position. The Government
decision on sugar market concentration is linked with an entire
complex of affairs of state administration. Thus, from the
constitutional aspect, by the Government decision of 22 July
1998 whereby it was permitted to concentrate the sugar market,
the affairs of state administration were being resolved.
9. It has been mentioned that, according to the
representatives of the party concerned-the Government, under
Paragraph 2 of Article 11 of the Law on Competition which was
in force at the time of the adoption of the disputed
governmental decision and under Paragraph 1 of Article 41 of
the Law on the Government, the Government was entitled to give
its permission by a written decision for the market
concentration, as the said laws did not contain a requirement
to adopt a Government resolution on this issue.
9.1. Paragraph 1 of Article 37 of the Law on the
Government (wording of 28 April 1998) provides: "The Government
of shall resolve the affairs of state administration at its
sittings by a majority vote of all Government members."
The aforementioned provision of the Law on the Government
repeats the provision of Paragraph 1 of Article 95 of the
Constitution that the Government, while resolving the affairs
of state administration, adopts only the legal acts pointed out
in this article of the Constitution, which are resolutions.
Paragraph 1 of Article 41 of the Law on the Government
(wording of 28 April 1998) provides: "Resolutions and decisions
of the Government of the Republic of Lithuania shall be passed
at the Government sittings by a majority vote of all Government
members."
If one compares the provisions of Paragraph 1 of Article
37 and Paragraph 1 of Article 41 of the Law on the Government,
one has to draw a conclusion that under the Law on the
Government, the Government, while resolving the affairs of
state administration, may adopt only resolutions but never
legal acts of different types.
9.2. As it has been mentioned, Paragraph 2 of Article 11
of the Law on Competition provided that in the cases when
permission to concentrate market structures which had not been
approved by the institution of price and competition might be
granted by the written decision of the Government.
Regulation of the market concentration is an affair of
state administration. Under Article 95 of the Constitution, the
Government, while resolving the affairs of state
administration, adopts resolutions. Therefore, the formula
"written decision" employed in the Law on Competition means
that a Government resolution on the market concentration ought
to have been adopted. Such a legal act passed by the Government
should have been signed by the Prime Minister and the
appropriate minister.
10. The Government Decision "On the request of the company
'Danisco Sugar' A/S to acquire certain shares of sugar sector
enterprises" does not conform to the form of a Government
resolution. It was entered into the minutes of the Government
sitting. The minutes of the sitting were signed by the Prime
Minister. This is not in line with Article 95 of the
Constitution, under which, the Government, while resolving the
affairs of state administration, must adopt resolutions, and
they must be signed by the Prime Minster and the appropriate
minister.
11. On the grounds of the arguments set forth, one is to
conclude that, according to its form and the procedure of its
signing, the Decision "On the request of the company 'Danisco
Sugar' A/S to acquire certain shares of sugar sector
enterprises" entered into the minutes of the Government sitting
of 22 July 1998 conflicts with Article 95 of the Constitution.
12. Under the Constitution, the procedure of publication
and coming into force of Government resolutions must be
established by law.
The procedure of publication and coming into force of
Government resolutions is established by the Law "On Procedure
of Publication and Coming Into Force of Republic of Lithuania
Laws and Other Legal Acts" (Official Gazette Valstybės žinios,
1993, No. 12-296; 1996, No. 67-1604, No. 125-2894; 1999, No.
48-1524, No. 60-1949; 2000, No. 52-1483; 2001, No. 82-2831).
13. Under Article 1 of the Law "On Procedure of
Publication and Coming Into Force of Republic of Lithuania Laws
and Other Legal Acts", the publication of the laws and other
legal acts in the official gazette Valstybės žinios shall
constitute their official publication.
13.1. The petitioner is of the opinion that, under the
procedure of its publication, the Decision "On the request of
the company 'Danisco Sugar' A/S to acquire certain shares of
sugar sector enterprises" entered into the minutes of the
Government sitting of 22 July 1998 conflicts with Article 2 of
the Law "On Procedure of Publication and Coming Into Force of
Republic of Lithuania Laws and Other Legal Acts" wherein it is
established that Government resolutions must be published in
the official gazette Valstybės žinios.
According to the representatives of the party concerned,
under the procedure of its publication, the disputed
governmental decision is in conformity with Article 2 of the
Law "On Procedure of Publication and Coming Into Force of
Republic of Lithuania Laws and Other Legal Acts". They base
their statement upon the provision of Article 3 of the said law
whereby the Government resolutions in which legal norms are not
established, amended or acknowledged as no longer valid may, in
the estimation of the persons who have signed them, remain
unpublished in the official gazette Valstybės žinios.
13.2. Article 3 of the Law "On Procedure of Publication
and Coming Into Force of Republic of Lithuania Laws and Other
Legal Acts" (wording of 4 July 1996 in force at the time of the
adoption of the disputed governmental decision) provided that
the Government resolutions in which legal norms are not
established, amended or acknowledged as no longer valid may, in
the estimation of the persons who have signed them, remain
unpublished in the official gazette Valstybės žinios.
The petitioner does not request the investigation into the
compliance of the Decision "On the request of the company
'Danisco Sugar' A/S to acquire certain shares of sugar sector
enterprises" with Article 3 of the Law "On Procedure of
Publication and Coming Into Force of Republic of Lithuania Laws
and Other Legal Acts"; he requests the investigation into the
compliance of the disputed governmental decision with Article 2
of the aforesaid law according to the procedure of the
publication of the former.
It needs to be noted that the provision of Article 2 of
the Law "On Procedure of Publication and Coming Into Force of
Republic of Lithuania Laws and Other Legal Acts" that
Government resolutions must be published in the official
gazette Valstybės žinios is inseparably linked with the
provision of Article 3 of the said law under which the
Government resolutions in which legal norms are not
established, amended or acknowledged as no longer valid may, in
the estimation of the persons who have signed them, remain
unpublished in the official gazette Valstybės žinios.
It has already been held in this Constitutional Court
Ruling, that the Government, while resolving the affairs of
state administration, must always adopt resolutions, and they
must be published regardless of whether the legal acts adopted
by the Government are normative or individual, as well as
regardless of the fact as to what entities or circles of
entities they are meant. Under the aforementioned provision of
Article 3 of the Law "On Procedure of Publication and Coming
Into Force of Republic of Lithuania Laws and Other Legal Acts",
Government resolutions may remain unpublished officially.
13.3. The provision of Article 3 of the Law "On Procedure
of Publication and Coming Into Force of Republic of Lithuania
Laws and Other Legal Acts" (wording of 4 July 1996) whereby the
Government resolutions in which legal norms are not
established, amended or acknowledged as no longer valid may, in
the estimation of the persons who have signed them, remain
unpublished in the official gazette Valstybės žinios is in
conflict with the requirement of a law-governed state
entrenched in the Constitution whereby only the legal acts
which are published are valid.
13.4. By the 18 May 1999 Republic of Lithuania Law on the
Amendment of Articles 2, 3, 8, 9, 10, 15, 16, 17 of the Law "On
Procedure of Publication and Coming Into Force of Republic of
Lithuania Laws and Other Legal Acts", Supplement of Article 101
Thereto and Recognition of Article 7 Thereof as Null and Void
(Official Gazette Valstybės žinios, 1999, No. 48-1524) Article
3 of the Law "On Procedure of Publication and Coming Into Force
of Republic of Lithuania Laws and Other Legal Acts" was
amended, however, the provision that it had contained before
whereby the Government resolutions in which legal norms are not
established, amended or acknowledged as no longer valid may, in
the estimation of the persons who have signed them, remain
unpublished officially was unchanged. Thus, the now in force
provision of the same content of the Law "On Procedure of
Publication and Coming Into Force of Republic of Lithuania Laws
and Other Legal Acts" (wording of 18 May 1999) is also in
conflict with the requirement of a law-governed state
entrenched in the Constitution whereby only the legal acts
which are published are valid.
13.5. Under Article 105 of the Constitution, the
Constitutional Court shall consider and adopt decisions
concerning the conformity of legal acts with the Constitution.
Thus, the Constitutional Court administers constitutional
justice. Administration of constitutional justice pre-supposes
the fact that a legal act (part thereof) which conflicts with
the Constitution must be removed from the legal system.
Therefore, after it has established that a law, the compliance
of which with the Constitution is not challenged by the
petitioner but upon which the disputed substatutory act is
based conflicts with the Constitution, the Constitutional Court
must state so. Such a duty of the Constitutional Court arises
from the Constitution, and this way the supremacy of the
Constitution is ensured.
13.6. On the grounds of the arguments set forth, one is to
conclude that the provision of Article 3 of the Law "On
Procedure of Publication and Coming Into Force of Republic of
Lithuania Laws and Other Legal Acts" whereby the Government
resolutions in which legal norms are not established, amended
or acknowledged as no longer valid may, in the estimation of
the persons who have signed them, remain unpublished officially
conflicts with the principle of a law-governed state entrenched
in the Constitution.
14. Article 8 of the Law "On Procedure of Publication and
Coming Into Force of Republic of Lithuania Laws and Other Legal
Acts" provides for the procedure of coming into force of
Government resolutions.
14.1. In the opinion of the petitioner, the Decision "On
the request of the company 'Danisco Sugar' A/S to acquire
certain shares of sugar sector enterprises" entered into the
minutes of the Government sitting of 22 July 1998 conflicts
with Article 8 of the Law "On Procedure of Publication and
Coming Into Force of Republic of Lithuania Laws and Other Legal
Acts".
According to the representatives of the party concerned,
the disputed governmental decision is in compliance with
Article 8 of the aforesaid law as the former is an individual
legal act and it, therefore, came into force under the
procedure established in Paragraph 2 of Article 8 of the Law
"On Procedure of Publication and Coming Into Force of Republic
of Lithuania Laws and Other Legal Acts".
14.2. Article 8 of the aforesaid law (wording of 6 April
1993 which was valid at the time of the adoption of the
disputed governmental decision) provided:
"The resolutions by the Government of the Republic of
Lithuania, by which legal norms are established, amended or
acknowledged as no longer valid, shall come into force
following the day, when signed by the Prime Minister or the
appropriate minister, they shall be published in the official
gazette Valstybės žinios.
The resolutions by the Government of the Republic of
Lithuania, by which legal norms are not established, amended or
acknowledged as no longer valid, also the Prime Minister's
decrees shall come into force on the day of their signing,
provided a later date of their coming into force has not been
established in the resolutions and decrees themselves."
Paragraphs 1 and 2 of Article 8 of the Law "On Procedure
of Publication and Coming Into Force of Republic of Lithuania
Laws and Other Legal Acts" provided for a different procedure
of coming into force of Government resolutions, depending on
whether the Government resolution is a normative legal act or
an individual one. Paragraph 2 of the said article contained
the provision that the Government resolutions by which legal
norms are not established, amended or acknowledged as no longer
valid may come into force without their official publication.
14.3. While assessing this legal regulation established in
the law, one must emphasise once again that under Paragraph 1
of Article 95 of the Constitution, the Government, while
resolving the affairs of state administration, adopts
resolutions. All Government resolutions, regardless of whether
they are normative or individual legal acts must be published
officially.
As it has been mentioned, one of the elements of the
principle of a law-governed state is that the power of legal
acts is prospective. The norms established in legal acts are
applied to the facts and effects occurring after their going
into effect. The requirement that published legal acts be
prospective is an essential element of the principle of a
law-governed state and an important precondition of legal
certainty. Thus, under the principle of a law-governed state
entrenched in the Constitution, one must follow the common rule
that all Government resolutions come into force after they are
published.
14.4. The provision of Paragraph 2 of Article 8 of the Law
"On Procedure of Publication and Coming Into Force of Republic
of Lithuania Laws and Other Legal Acts" (wording of 6 April
1993) whereby the Government resolutions by which legal norms
are not established, amended or acknowledged as no longer valid
may come into force without their official publication is not
in line with the principle of a law-governed state entrenched
in the Constitution whereby all Government resolutions come
into force after they are published.
14.5. Paragraph 2 of Article 8 of the Law "On Procedure of
Publication and Coming Into Force of Republic of Lithuania Laws
and Other Legal Acts" was amended by 18 May 1999 Republic of
Lithuania Law on the Amendment of Articles 2, 3, 8, 9, 10, 15,
16, 17 of the Law "On Procedure of Publication and Coming Into
Force of Republic of Lithuania Laws and Other Legal Acts",
Supplement of Article 101 Thereto and Recognition of Article 7
Thereof as Null and Void. The said paragraph provides: "The
resolutions by the Government of the Republic of Lithuania, by
which legal norms are not established, amended or acknowledged
as no longer valid, also the Prime Minister's decrees shall
come into force on the day of their signing even though they
have been published in the official gazette Valstybės žinios,
provided the later date of their coming into force has not been
established in the resolutions and decrees themselves."
Paragraph 2 of Article 8 of the Law "On Procedure of
Publication and Coming Into Force of Republic of Lithuania Laws
and Other Legal Acts" (now in force wording of 18 May 1999),
like the former wording of the same article (6 April 1993),
does not link the time of coming into force of Government
resolutions with their publication in the official gazette
Valstybės žinios. Thus, the provision of Paragraph 2 of Article
8 of the said law (wording of 18 May 1999) whereby the
Government resolutions by which legal norms are not
established, amended or acknowledged as no longer valid may
come into force without their official publication is also not
in line with the principle of a law-governed state entrenched
in the Constitution whereby legal acts come into force after
they are published.
14.6. On the grounds of the arguments set forth, one is to
conclude that the provision of Paragraph 2 of Article 8 of the
Law "On Procedure of Publication and Coming Into Force of
Republic of Lithuania Laws and Other Legal Acts" (wordings of 6
April 1993 and 18 May 1999) that the Government resolutions by
which legal norms are not established, amended or acknowledged
as no longer valid may come into force without their official
publication conflicts with the principle of a law-governed
state which is entrenched in the Constitution.
15. It has been mentioned that the Decision "On the
request of the company 'Danisco Sugar' A/S to acquire certain
shares of sugar sector enterprises" entered into the minutes of
the Government sitting of 22 July 1998 was adopted within the
frame of Government's resolving of the state affairs. Under the
requirements of the constitutional principle of a law-governed
state, such an act of state administration ought to have been
published and ought to have come into force after its
publication regardless of whether such an act was a normative
or individual legal act, as well as regardless of the fact as
to what entities or circles of entities it was meant.
15.1. Article 1 of the Law "On Procedure of Publication
and Coming Into Force of Republic of Lithuania Laws and Other
Legal Acts" provided that publication of the laws and other
legal acts in the official gazette Valstybės žinios shall
constitute their official publication. The disputed
governmental decision has not been published in the official
gazette Valstybės žinios, nor is the time of its coming into
force linked with the date of its publication.
15.2. On the grounds of the arguments set forth, one is to
conclude that, under the procedure of its publication and
coming into force, the Decision "On the request of the company
'Danisco Sugar' A/S to acquire certain shares of sugar sector
enterprises" entered into the minutes of the Government sitting
of 22 July 1998 conflicts with the principle of a law-governed
state entrenched in the Constitution.
16. After it has held that, according to its form and the
procedure of its signing, the Decision "On the request of the
company 'Danisco Sugar' A/S to acquire certain shares of sugar
sector enterprises" entered into the minutes of the Government
sitting of 22 July 1998 conflicts with Article 95 of the
Constitution, while under the procedure of publication and
coming into force it conflicts with the principle of a
law-governed state entrenched in the Constitution, as well as
that the provision of Article 3 of the Law "On Procedure of
Publication and Coming Into Force of Republic of Lithuania Laws
and Other Legal Acts" (wordings of 4 July 1996 and 18 May 1999)
whereby the Government resolutions in which legal norms are not
established, amended or acknowledged as no longer valid may, in
the estimation of the persons who have signed them, remain
unpublished officially and that the provision of Paragraph 2 of
Article 8 of the same law (wordings of 6 April 1993 and 18 May
1999) whereby the Government resolutions by which legal norms
are not established, amended or acknowledged as no longer valid
may come into force without their official publication conflict
with the principle of a law-governed state entrenched in the
Constitution, the Constitutional Court will not consider the
compliance of the Decision "On the request of the company
'Danisco Sugar' A/S to acquire certain shares of sugar sector
enterprises" entered into the minutes of the Government sitting
of 22 July 1998 with Paragraphs 1, 4 and 5 of Article 46 of the
Constitution pointed out by the petitioner, as well as with
Articles 6 and 11 of the Law on Competition (enacted on 15
September 1992), Article 2 of the Law on the Government, and
Articles 2 and 8 of the Law "On Procedure of Publication and
Coming Into Force of Republic of Lithuania Laws and Other Legal
Acts", all of which were pointed out by the petitioner.
Conforming to Article 102 of the Constitution of the
Republic of Lithuania and Articles 53, 54, 55 and 56 of the
Republic of Lithuania Law on the Constitutional Court, the
Constitutional Court of the Republic of Lithuania has passed
the following
ruling:
1. To recognise that, according to its form and the
procedure of its signing, the Government of the Republic of
Lithuania Decision "On the request of the company 'Danisco
Sugar' A/S to acquire certain shares of sugar sector
enterprises" entered into the minutes of the sitting of 22 July
1998 of the Government of the Republic of Lithuania conflicts
with Article 95 of the Constitution of the Republic of
Lithuania, while under the procedure of publication and coming
into force it conflicts with the principle of a law-governed
state entrenched in the Constitution of the Republic of
Lithuania.
2. To recognise that the provision of Article 3 of the
Republic of Lithuania Law "On Procedure of Publication and
Coming Into Force of Republic of Lithuania Laws and Other Legal
Acts" (wordings of 4 July 1996 and 18 May 1999) whereby the
resolutions of the Government of the Republic of Lithuania in
which legal norms are not established, amended or acknowledged
as no longer valid may, in the estimation of the persons who
have signed them, remain unpublished officially conflicts with
the principle of a law-governed state entrenched in the
Constitution of the Republic of Lithuania.
3. To recognise that the provision of Paragraph 2 of
Article 8 of the Republic of Lithuania Law "On Procedure of
Publication and Coming Into Force of Republic of Lithuania Laws
and Other Legal Acts" (wordings of 6 April 1993 and 18 May
1999) whereby the resolutions of the Government of the Republic
of Lithuania by which legal norms are not established, amended
or acknowledged as no longer valid may come into force without
their official publication conflicts with the principle of a
law-governed state entrenched 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.