Lietuviškai
CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA
RULING
ON THE COMPLIANCE OF ITEM 4.2 OF RESOLUTION NO.
608 OF THE GOVERNMENT OF THE REPUBLIC OF LITHUANIA
"ON THE MANAGEMENT OF KLAIPĖDA STATE SEAPORT" OF 6
AUGUST 1993 WITH PARAGRAPH 1 OF ARTICLE 11 OF THE
REPUBLIC OF LITHUANIA LAW ON THE LEASING OF LAND
(WORDING OF 23 DECEMBER 1993)
19 February 2002
Vilnius
The Constitutional Court of the Republic of Lithuania,
composed of the Judges of the Constitutional Court Egidijus
Jarašiūnas, Zigmas Levickis, Augustinas Normantas, Vladas
Pavilonis, Jonas Prapiestis, Vytautas Sinkevičius, Stasys
Sačiokas, and Teodora Staugaitienė,
with the secretary of the hearing-Daiva Pitrėnaitė,
in the presence of:
the representatives of the party concerned, the Government
of the Republic of Lithuania, who are the following: Jelena
Antonevič, chief specialist of the Water Transport Department
of the Ministry of Transport of the Republic of Lithuania;
Modestas Girdzevičius, senior specialist of the Legal Division
of the Law Department of the Ministry of Transport of the
Republic of Lithuania; and Irena Bujavičienė, Deputy Head of
the Land Reform Division of the National Land Service under the
Ministry of Agriculture of the Republic of Lithuania,
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 6
February 2002 in its public hearing heard Case No. 26/2000
which originated in a petition of the Higher Administrative
Court, the petitioner, requesting to determine whether Item 4.2
of Resolution No. 608 of the Government of the Republic of
Lithuania "On the Management of Klaipėda Seaport" of 6 August
1993 was in conformity with Paragraph 1 of Article 11 of the
Republic of Lithuania Law on the Leasing of Land (wording of 23
December 1993) and Paragraph 2 of Article 8 thereof (wording of
24 March 1998).
The Constitutional Court
has established:
I
The petitioner, the Higher Administrative Court, was
considering a petition of the Klaipėda Regional Court
requesting to investigate whether Order No. 176 of 22 May 1996,
Order 369 of 29 September 1997, Order No. 90 of 15 March 1999
of the Minister of Transport of the Republic of Lithuania and
appendices thereof, which establish rent coefficients for the
territory of Klaipėda State Seaport, were in conformity with
Paragraph 1 of Article 11 of the Republic of Lithuania Law on
the Leasing of Land (wording of 23 December 1993; Official
Gazette Valstybės žinios, 1994, No. 3-41) and Paragraph 2 of
Article 8 thereof (wording of 24 March 1998; Official Gazette
"Valstybės žinios", 1998, No. 35-855).
The Higher Administrative Court suspended the case by its
order of 1 May 2000 and addressed the Constitutional Court with
a petition requesting to determine whether Item 4.2 of
Resolution No. 608 of the Government of the Republic of
Lithuania "On the Management of Klaipėda State Seaport" of 6
August 1993 (hereinafter also referred to as the Resolution;
Official Gazette Valstybės žinios, 1993, No. 36-813) was in
conformity with Paragraph 1 of Article 11 of the Republic of
Lithuania Law on the Leasing of Land (wording of 23 December
1993) (hereinafter also referred to as the Law) and Paragraph 2
of Article 8 thereof (wording of 24 March 1998).
II
The petitioner grounds his petition on the following
arguments.
1. Following Item 4.2 of Government Resolution No. 608 "On
the Management of Klaipėda State Seaport" of 6 August 1993, the
Ministry of Transport had to prepare and approve, by 1
September 1993, the rules for the lease of the territories of
Klaipėda State Seaport, payment for the use of the port
territory, water area and engineering facilities.
Paragraph 1 of Article 11 of the Law on the Leasing of
Land prescribed that the payment of rent for leased state-owned
land shall be established according to the procedure prescribed
by the laws and the Government of the Republic of Lithuania
(wording of 23 December 1993). Paragraph 2 of Article 8 of the
Law on the Leasing of Land prescribed that the payment of rent
for leased state-owned land shall be established according to
the procedure prescribed by the laws and the Government
(wording of 24 March 1998).
2. In the opinion of the petitioner, the Republic of
Lithuania Law on Klaipėda State Seaport of 16 May 1996 and the
Law on the Leasing of Land do not establish either port land
rent coefficients or land categories, or who and how assigns a
land plot to a certain category of the port land, or who
establishes the coefficients. Temporary land rent coefficients
applicable to the price calculated following the procedure
established by the Government are established by orders of the
Minister of Transport.
The petitioner points out that the Minister of Transport
and the Directorate of Klaipėda State Seaport consider the land
rent coefficient to be one of the elements of the procedure for
land lease. The Ministry of Transport, in applying the
coefficient, does not establish the amount of rent for land,
but rather changes it in a corresponding manner. However,
increasing coefficients mean higher rent for land. The
coefficient (also a preferential one) is included in the total
rent and it is one of the regulators of the land rent rates.
Thus, in the opinion of the petitioner, the Ministry of
Transport establishes the amount of rent for the port land
independently.
The petition specifies that the right to establish
coefficients applicable to land rent was granted by Item 4.2 of
the Resolution. The petitioner is of the opinion that if the
concept of the rules for the lease of and payment for the use
of port territory, water area and engineering facilities
encompasses the establishment of the amount of land rent (which
includes the coefficient), then Item 4.2 of the Resolution
contradicted Paragraph 1 of Article 11 of the Law (wording of
23 December 1993) and Paragraph 2 of Article 8 thereof (wording
of 24 March 1998), which established an explicit provision that
the amount of rent to be paid for leased state-owned land shall
be established according to the procedure prescribed by the
laws and the Government. The petitioner asserts that the
Government was not given the right to delegate the
establishment of the amount of land rent to another
institution. While adopting the said Resolution, the Government
exceeded its powers. Therefore, the petitioner doubts whether
Item 4.2 of the Resolution was in conformity with Paragraph 1
of Article 11 of the Law (wording of 23 December 1993) and
Paragraph 2 of Article 8 thereof (wording of 24 March 1998).
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, J. Antonevič, the chief specialist of the Water
Transport Department of the Ministry of Transport, M.
Girdzevičius, a senior specialist of the Legal Division of the
Law Department of the same ministry, as well as I. Bujavičienė,
Deputy Head of the Land Reform Division of the National Land
Service under the Ministry of Agriculture.
2. The representatives of the party concerned J. Antonevič
and M. Girdzevičius maintain in their explanations that the
Seimas, while deciding the affairs of leasing of state-owned
land, had confirmed the procedure valid until then by Paragraph
1 of Article 11 of the Law (23 December 1993) whereby the
Government shall dispose of state-owned land and, implementing
this right, it shall adopt relevant resolutions. In the opinion
of J. Antonevič and M. Girdzevičius, after the Law had gone
into effect, neither the Seimas nor the Government needed to
adopt substatutory acts in order to implement the provisions of
the Law on the procedure on establishment of land rent.
The representatives of the party concerned maintain that
the Seimas delegated the right to the Government by the Law to
establish the procedure on establishment of land rent. The
Government, while adopting the Resolution, delegated the right
to the Ministry of Transport to establish the procedure on
establishment of land rent of Klaipėda State Seaport.
J. Antonevič and M. Girdzevičius note that Item 4.2 of the
Resolution is in compliance with Paragraph 1 of Article 11 of
the Law since Paragraph 1 of Article 5 of this Law provides:
"The lessor of land shall be <...> the possessor of the
state-owned land appointed according to the procedure
established by law <...>." The Government provided in Item 3 of
its Resolution No. 676 "On the Legal Status of Klaipėda
Seaport" of 16 September 1992 that the possessor of the port
shall be the Ministry of Transport, while in other Government
resolutions it is established that the procedure of leasing of
Klaipėda State Seaport land and the calculation of rent shall
be approved by the Ministry of Transport.
3. In her explanations, the representative of the party
concerned I. Bujavičienė points out that Item 4.2 of the
Resolution had been adopted and implemented before the date of
the Law going into effect (12 January 1994), therefore, at the
moment of its adoption the former could not be in conflict with
Paragraph 1 of Article 11 of the initial wording of the Law.
After the Law had gone into effect, no new rules were approved.
The representative of the party concerned also points out
that the Ministry of Transport, while approving the method of
the rules for the lease of the territories of Klaipėda State
Seaport and the method of calculation of the rent price of the
port territory, was obligated to determine peculiarities of the
rates and payment procedure of the rent of Klaipėda State
Seaport land. The procedure itself was established in
Government Resolution No. 602 "On the Rent Payment for State
Land and State-owned Water Bodies Leased for the Purposes of
Commercial or Sport Fishing" of 3 August 1993.
IV
In the course of the preparation of the case for the
Constitutional Court hearing, a conclusion was received from
the specialist R. Vainienė, Vice-president of the Lithuanian
Free Market Institute, wherein it is stated that the tax1 of
the lease of state-owned land is not a typical one as the Law
which has established it does not define all the elements
necessary for taxation (base, tariff etc.). This tax was
established in the Law whose entire content and essence
indicate not an intention to introduce a tax as a source of
state budget revenue or as means to restrict leasing and using
state-owned land, which is, as a rule, done in special taxation
laws, but an intention to establish the same requirements for
leasing of state-owned land and payment for it. According to
the content and essence of the Law, one established not a
source of tax revenue but payment for rent based on agreements
which should not be considered a tax under the provisions of
Articles 67 and 127 of the Constitution.
In the opinion of R. Vainienė, due to the imprecision of
the provisions and notions used in the legal acts, there
appeared confusion in state institutions which knew neither how
to apply the tax of leasing state-owned land established by the
Law and the Resolution, nor who would be responsible, in line
of a logical sequence, for the administration of this tax and
the revenues, nor whether it was permitted to take additional
payment for rent.
On the basis of the provision that the "rent for land
lease" mentioned in the Law must be considered to be not a
state tax but payment for the leased land, the requirements of
the Law on the procedure on the establishment on the rent for
land lease (either by a law or a substatutory act) obligate to
provide for rules and procedures on the basis whereof
agreements on leasing state-owned land might be concluded. In
particular, the latter might determine the procedure for
establishment of the minimal price of state-owned land rent,
the terms of payment, maturity etc.
V
In the course of the preparation of the case for the
Constitutional Court hearing, written explanations were
received from D. Barakauskas, Minister of Transport of the
Republic of Lithuania, K. Kristinaitis, Minister of Agriculture
of the Republic of Lithuania, E. Gentvilas, Minister of Economy
of the Republic of Lithuania, P. Koverovas, Vice-minister of
Justice, G. Rimša, the secretary of the Ministry of Finance, U.
Labutis, Deputy Director of the Water Transport Department of
the Ministry of Transport, V. Lukošienė, Chief of the Klaipėda
County, Assoc. Prof. Dr. A. Katkus, Head of Law Department of
the Faculty of Social Sciences, Klaipėda University, and H.
Butkus, a member of the International Maritime Law Association.
VI
At the Constitutional Court hearing, the representatives
of the party concerned J. Antonevič, M. Girdzevičius and I.
Bujavičienė virtually reiterated the statements set down in
their written explanations for the Constitutional Court. The
specialist K. Lukšėnienė also spoke at the Constitutional Court
hearing.
The Constitutional Court
holds that:
I
1. The petitioner, the Higher Administrative Court,
requests the Constitutional Court to determine whether Item 4.2
of Government Resolution No. 608 "On the Management of Klaipėda
Seaport" of 6 August 1993 was in conformity with Paragraph 1 of
Article 11 of the Law on the Leasing of Land (wording of 23
December 1993) and Paragraph 2 of Article 8 thereof (wording of
24 March 1998).
At the time of the appeal to the Constitutional Court the
Resolution was no longer valid. By its decision of 30 June
2000, the Constitutional Court accepted the petition of the
petitioner, the Higher Administrative Court, for consideration
at the Constitutional Court since in case of not consideration
of the compliance of Item 4.2 of the Resolution with the Law by
the Constitutional Court, the doubts of the petitioner whether
the Ruling had been in conformity to the Law would not have
been removed.
2. The matter of consideration by the Constitutional Court
in this case is to be defined in view of the time and scope.
2.1. The petitioner requests the Constitutional Court to
determine whether Item 4.2 of Resolution was in conformity with
Paragraph 1 of Article 11 of the Law (wording of 23 December
1993) and Paragraph 2 of Article 8 thereof (i.e. the new 24
March 1998 wording of former Paragraph 1 of Article 11).
Disputed Item 4.2 of the Resolution (together with the entire
Resolution) became voided as of 22 May 1999; during the time of
its validity, Item 4.2 of the Resolution had not been amended
or supplemented.
As it has been mentioned, the Resolution was adopted on 6
August 1993, it went into effect on 11 August 1993. The Law was
adopted on 23 December 1993 and it came into force on 12
January 1994. Thus the problem of the compliance of Item 4.2 of
the Resolution with the Law might arise from 12 January 1994,
i.e. from the date after the Law had come into force.
It is also noteworthy that on 16 May 1996 the Law on
Klaipėda State Seaport was enacted. On 16 May 1996, by Article
1 of the Republic of Lithuania Law on the Supplement of Article
1 of the Law on the Leasing of Land, Article 1 of the Law on
the Leasing of Land was supplemented with Paragraph 5 wherein
it was established that peculiarities of leasing of land in the
territory of the state seaport shall be established by the Law
on Klaipėda State Seaport. Thus, as of 16 May 1996, the legal
regulation of land lease of Klaipėda State Seaport and the rent
for lease of this land was established by a special Law on
Klaipėda State Seaport. Therefore, in the context of the case
at issue at the Constitutional Court, the question of the
lawfulness, i.e. compliance of Item 4.2 of the Resolution with
the Law on Leasing of Land, is grounded and is meaningful only
as regards the period from 12 January 1994 till 16 May 1996.
Taking account of the fact that as of 16 May 1996 the Law
on Klaipėda State Seaport established the legal regulation of
land lease of Klaipėda State Seaport and the rent for lease of
this land, the Constitutional Court will consider the
compliance of Item 4.2 of the Resolution with Paragraph 1 of
Article 11 of the Law (wording of 23 December 1993). The
Constitutional Court will not consider the compliance of Item
4.2 of the Resolution with Paragraph 2 of Article 8 of the Law
(wording of 24 March 1998).
2.2. Item 4.2 of the Resolution established: "To
commission the Ministry of Transport to prepare and approve, by
1 September 1993, the rules for the lease of the territories of
Klaipėda State Seaport, payment for the use of the port
territory, water area and engineering facilities."
The petitioner requests the Constitutional Court to
determine the compliance of entire Item 4.2 of the Resolution
with Paragraph 1 of Article 11 of the Law (wording of 23
December 1993), meanwhile in the petition only the legal
arguments as to the compliance of the provision of Item 4.2 of
the Resolution whereby the Ministry of Transport was
commissioned to prepare and approve the rules for the lease of
the territories of Klaipėda State Seaport, which created legal
pre-conditions to establish the norms in the said rules
regulating the establishment of the amount of payment for the
lease of land in the territory of Klaipėda State Seaport, with
Paragraph 1 of Article 11 of the Law (wording of 23 December
1993).
Therefore, the Constitutional Court will consider the
compliance of Item 4.2 of the Resolution with Paragraph 1 of
Article 11 of the Law (wording of 23 December 1993) to the
extent that the provision of Item 4.2 of the Resolution, after
it had commissioned the Ministry of Transport to prepare and
approve the rules for the lease of the territories of Klaipėda
State Seaport, created legal pre-conditions to establish the
norms in the said rules regulating the establishment of the
amount of payment for the lease of land in the territory of
Klaipėda State Seaport.
II
1. Paragraph 1 of Article 11 of the Law on the Leasing of
Land (wording of 23 December 1993) provided: "The payment of
rent for leased State-owned land shall be established according
to the procedure prescribed by the laws and the Government of
the Republic of Lithuania."
The purpose of the Law was to establish the procedure for
leasing of land in the Republic of Lithuania and to regulate
the relations between the lessee and the lessor of land
(Paragraph 1 of Article 1 of the Law). The Law established the
legal regulation of the lease of state-owned land, thus,
including that of Klaipėda State Seaport.
Article 11 of the Law was entitled Land Rent (wording of
23 December 1993), therefore the notion "payment of rent"
employed in Paragraph 1 of this article is to be construed as
establishment of the amount of rent payment for state-owned
land. The Law had established the procedure for calculation of
the amount of rent payment for state-owned land. The Law did
not contain any norms providing for any special procedure for
calculation of the amount of rent payment for state-owned land
in Klaipėda State Seaport.
Paragraph 1 of Article 11 of the Law (wording of 23
December 1993) provided that the payment of rent for leased
state-owned land shall be established according to the
procedure prescribed by the laws and the Government. The norm
that the payment of rent for leased state-owned land shall be
established according to the procedure prescribed by the laws
and the Government means that the legal relations of the
leasing of state-owned land were to be regulated by the Seimas
by means of passing laws as well as the Government by means of
adopting resolutions. The Law did not establish directly as to
what issues of the payment of rent for leased state-owned land
were to be decided by the law and which issues-by Government
resolutions. The relations of the payment of rent for leased
state-owned land pointed out in Paragraph 1 of Article 11 of
the Law (wording of 23 December 1993) were to be regulated only
by laws and Government resolutions. Thus, this legal regulation
meant that the Government had to establish the procedure of
determination of the amount of payment for state-owned land
rent, including the land of Klaipėda State Seaport, by itself
and it was not permitted to transfer its powers to any other
institution, concerning the establishment of the procedure of
determination of the amount of payment for state-owned land
rent.
2. The Government, by Item 4.2 of the Resolution,
commissioned the Ministry of Transport to prepare and approve
the rules for the lease of the territories (i.e. of the land
and water area of the port) of Klaipėda State Seaport as well
as of payment for the use of the port territory, water area and
engineering facilities. Such a provision of Item 4.2 of the
Resolution implies that the Ministry of Transport is granted
the powers to decide all issues of leasing of the port land in
the rules of the lease of the territories of Klaipėda State
Seaport, thus, including the determination of the amount of
payment of port land rent (establishment of rent). As it has
been mentioned, under Paragraph 1 of Article 11 of the Law
(wording of 23 December 1993), the establishment of the amount
of payment of rent for the land of Klaipėda State Seaport was
within the competence of the Seimas and the Government but not
that of the Ministry of Transport.
3. The law is a legal act of supreme legal power. The
Government resolution is a substatutory legal act, therefore it
may not be in conflict with the law, it may not contain any
provisions competing with those of the law. The Constitutional
Court has held that in cases when a Government resolution
containing the norms conflicting with a law is adopted prior to
the adoption of the law, such a Government resolution must be
harmonised with the norms of the subsequently adopted law
(Constitutional Court ruling of 5 April 2000).
4. Under Paragraph 1 of Article 11 of the Law (wording of
23 December 1993), the payment of rent for leased land of
Klaipėda State Seaport was established according to the
procedure prescribed by the laws and the Government. Therefore,
after the Law had been adopted, the disputed provision of Item
4.2 of the Resolution whereby the Ministry of Transport was
commissioned to prepare and approve, along with the other
rules, those for the lease of the land of Klaipėda State
Seaport, should have been harmonised with Paragraph 1 of
Article 11 of the Law (wording of 23 December 1993). However,
Item 4.2 of the Resolution was not amended and harmonised with
Paragraph 1 of Article 11 of the Law (wording of 23 December
1993). This created legal pre-conditions for the Ministry of
Transport, on the basis of Item 4.2 of the Resolution, to
establish rent coefficients for the land of Klaipėda State
Seaport and thereby to change the amount of the land rent the
establishment of which, as it has been mentioned, according to
Paragraph 1 of Article 11 of the Law (wording of 23 December
1993), had been within the competence of the Seimas and the
Government but not the Ministry of Transport.
Taking account of the arguments set forth, one is to
conclude that the disputed provision of Item 4.2 of the
Resolution which created legal preconditions for the Ministry
of Transport to establish the norms in the rules for the lease
of the territories of Klaipėda State Seaport regulating the
establishment of the amount of rent for land in Klaipėda State
Seaport was in conflict with Paragraph 1 of Article 11 of the
Law (wording of 23 December 1993).
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:
To recognise that the provision "to commission the
Ministry of Transport to prepare and approve <...> the rules
for the lease of the territories of Klaipėda State Seaport" of
Item 4.2 of Resolution No. 608 of the Government of the
Republic of Lithuania "On the Management of Klaipėda Seaport"
of 6 August 1993 to the extent that it created legal
preconditions for the Ministry of Transport to establish norms
in the rules for the lease of the territories of Klaipėda State
Seaport regulating the establishment of the amount of rent for
land in Klaipėda State Seaport conflicted with Paragraph 1 of
Article 11 of the Republic of Lithuania Law on the Leasing of
Land (wording of 23 December 1993).
This Constitutional Court ruling is final and not subject
to appeal.
The ruling is promulgated on behalf of the Republic of
Lithuania.
_____________________
1 The Lithuanian word "mokestis" may be translated into English as
(1) "tax" and (2) "any payment". In this Ruling of the
Constitutional Court of the Republic of Lithuania the Lithuanian
word "mokestis" is translated according to the context in which
it occurs (Translator's note).