Lietuviškai
THE CONSTITUTIONAL COURT OF THE REPUBLIC OF
LITHUANIA
RULING
ON THE COMPLIANCE OF ITEMS 3.4.4 AND 3.7.15 OF
RESOLUTION OF THE GOVERNMENT OF THE REPUBLIC OF
LITHUANIA NO. 664 "ON THE INTRODUCTION AND USE OF
CASH REGISTERS" OF 4 JUNE 1998 (WORDING OF 28
DECEMBER 1999) WITH THE CONSTITUTION OF THE
REPUBLIC OF LITHUANIA AND PARAGRAPH 1 OF ARTICLE 1
OF THE REPUBLIC OF LITHUANIA LAW ON COMPETITION,
AND ON THE COMPLIANCE OF ITEM 3.7.15 OF THE SAME
RESOLUTION WITH PARAGRAPH 1 OF ARTICLE 2,
PARAGRAPH 11 OF ARTICLE 3 AND ITEMS 1 AND 2 OF
ARTICLE 9 OF THE REPUBLIC OF LITHUANIA LAW ON
COMPETITION
9 April 2002
Vilnius
The Constitutional Court of the Republic of Lithuania,
composed of the Judges of the Constitutional Court Armanas
Abramavičius, Egidijus Jarašiūnas, Egidijus Kūris, Kęstutis
Lapinskas, Zenonas Namavičius, Augustinas Normantas, Jonas
Prapiestis, Vytautas Sinkevičius, and Stasys Stačiokas,
with the secretary of the hearing-Daiva Pitrėnaitė,
in the presence of:
the representative of the party concerned, the Government
of the Republic of Lithuania, who is Rimantas Murauskas, the
chief specialist of the Inspection Methods' Group of the State
Tax Inspectorate under the Ministry of Finance of the
Government 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
28 March 2002 in its public hearing heard Case No. 24/2000
which originated in a petition of the petitioner, a group of
members of the Seimas of the Republic of Lithuania, requesting
to determine whether Item 3.4.4 of Resolution of the Government
of the Republic of Lithuania No. 664 "On the Introduction and
Use of Cash Registers" of 4 June 1998 (wording of 28 December
1999) was in compliance with Paragraphs 1, 3 and 4 of Article
46 and Paragraph 1 of Article 48 of the Constitution of the
Republic of Lithuania as well as Paragraph 1 of Article 1 of
the Republic of Lithuania Law on Competition, and whether Item
3.7.15 of the same resolution was in compliance with Paragraphs
1, 3 and 4 of Article 46 of the Constitution of the Republic of
Lithuania, as well as Paragraph 1 of Article 2, Paragraph 11 of
Article 3 and Items 1 and 2 of Article 9 of the Republic of
Lithuania Law on Competition.
The Constitutional Court
has established:
I
1. On 4 June 1998, the Government adopted Resolution No.
664 "On the Introduction and Use of Cash Registers" (Official
Gazette Valstybės žinios, 1998, No. 53-1463). On 28 December
1999, Government Resolution No. 1493 "On the Partial Amendment
of Resolution of the Government of the Republic of Lithuania
No. 664 'On the Introduction and Use of Cash Registers' of 4
June 1998" (Official Gazette Valstybės žinios, 1999, No.
144-3313) was adopted.
Item 3.4.4 of Government Resolution No. 664 "On the
Introduction and Use of Cash Registers" of 4 June 1998
(hereinafter also referred to as the Resolution (wording of 28
December 1999)) established that cash registers must be
installed "until 1 January 2000 in the ticket offices of
passenger transport enterprises and in passenger transport
vehicles in which tickets are sold, which are registered with
the territorial state tax inspectorates. Local government
councils may, by their decision, postpone, for up to three
months, the term of installation of cash registers in town
passenger transport vehicles in which tickets are sold, which
are registered with the territorial state tax inspectorates."
Item 3.7.15 of the Resolution (wording of 28 December
1999) provides that cash registers are not necessary "in town
passenger transport vehicles in which one pays the fare by
punching one-time tickets. Not less than half of one-time
tickets which are sold by the carrier must be sold permanently
at news stalls, in shops or other trading places".
2. The petitioner, a group of Seimas members, requests the
Constitutional Court to determine whether Item 3.4.4 of the
Resolution (wording of 28 December 1999) is in compliance with
Paragraphs 1, 3 and 4 of Article 46 and Paragraph 1 of Article
48 of the Constitution as well as Paragraph 1 of Article 1 of
the Law on Competition, and also whether Item 3.7.15 of the
same resolution is in compliance with Paragraphs 1, 3 and 4 of
Article 46 of the Constitution, as well as Paragraph 1 of
Article 2, Paragraph 11 of Article 3 and Items 1 and 2 of
Article 9 of the Law on Competition.
II
The request of the petitioner is based on the following
arguments.
Items 3.4.4 and 3.7.15 of the Resolution (wording of 28
December 1999) differentiate carriers of passengers: Item 3.4.4
is designated to private carriers, while Item 3.7.15 singles
out the passenger transport (carriers) which is within the area
of regulation by local governments. In the opinion of the
petitioner, due to the introduction of cash registers the
expenses of private carriers of passengers increase, the
freedom of economic activity is restricted, private businesses
are ruined, the development of private ownership is being
blocked. State ownership is given priority over private
ownership. Advantageous conditions are created for local
government (municipal) passenger transport carriers to operate
in the market, the freedom of fair competition is violated, and
the market is being monopolised. All this is regulated not by a
law but a substatutory act, i.e. a governmental resolution. In
the opinion of the petitioner, such legal regulation conflicts
with Paragraphs 1, 3 and 4 of Article 46 of the Constitution.
2. In the opinion of the petitioner, after cash registers
are installed in private passenger transport, the psychological
stress of the drivers increases and there appears danger for
the traffic and passengers' security. Inadequate, insecure and
unhealthy working conditions are created for the drivers. In
the opinion of the petitioner, such legal regulation conflicts
with Paragraph 1 of Article 48 of the Constitution.
3. The petitioner maintains that the legal regulation
established in Item 3.4.4 of the Resolution (wording of 28
December 1999) singles out private carriers from among other
carriers, e.g. freight carriers, whose activity is not
regulated by the said item. The municipal transport, fleets of
buses and trolley-buses, due to their scale of operation and
state subsidies, are in the dominant position in towns. Item
3.7.15 of the Resolution (wording of 28 December 1999) makes
the position of municipal passenger transport an exceptional
one and thus fair competition is violated. In the opinion of
the petitioner, such legal regulation is in conflict with
Paragraph 1 of Article 1 of the Law on Competition.
4. The petitioner points out that under Paragraph 1 of
Article 2 of the Law on Competition, activities of economic
entities which restrict or may restrict competition, regardless
of the nature of their economic activities, shall be
prohibited. Meanwhile, Item 3.7.15 of the Resolution (wording
of 28 December 1999) restricts competition. In the opinion of
the petitioner, such legal regulation conflicts with Paragraph
1 of Article 2 of the Law on Competition.
5. In the opinion of the petitioner, Item 3.7.15 of the
Resolution (wording of 28 December 1999) is in conflict with
Paragraph 11 of Article 3 of the Law on Competition which
defines the notion of the dominant position of economic
entities. Municipal passenger transport (carriers) dominates in
the market, while Item 3.7.15 of the Resolution (wording of 28
December 1999) consolidates this dominance still further.
6. According to the petitioner, Item 3.7.15 of the
Resolution (wording of 28 December 1999) conflicts with Items 1
and 2 of Article 9 of the Law on Competition which prohibit the
entities having a dominant position in a corresponding market
to make abuses by carrying out various actions restricting
competition. In the opinion of the petitioner, Item 3.7.15 of
the Resolution (wording of 28 December 1999), which is a
substatutory act, unreasonably restricts an opportunity of
private carriers to operate in the market, due to the
compulsory installation of cash registers in private transport
the conditions of sale are imposed upon them, and technological
development is impeded.
III
In the course of the preparation of the case for the
Constitutional Court hearing, written explanations were
received from the representative of the party concerned, the
Government, who was V. Vasiliauskas, Vice-minister of Finance.
1. The representative of the party concerned pointed out
that by Resolution No. 664 "On the Introduction and Use of Cash
Registers" of 4 June 1998 the Government established that in
every place of work in which residents pay in cash and in which
one may not issue the account documents with all the requisites
(code numbers, names, or names and surnames of the purchaser
and the seller etc.) which are pointed out in the Republic of
Lithuania Law on the Principles of Accounting, cash registers
must be installed and used. By the Resolution (wording of 28
December 1999), the Government attempted to establish such a
procedure of cash accounting which might enable to correctly
record and control the revenues received from the enterprises
of all types of ownership and the due taxes.
2. V. Vasiliauskas noted that the Resolution (wording of
28 December 1999) provides for the same requirements for
economic entities of all types of ownership and it in no way
restricts the freedom of economic activity and private
enterprise. Item 3.4.4 of the Resolution (wording of 28
December 1999) establishes the same duty to install cash
registers for private enterprises, passenger carriers, and
municipal passenger transport enterprises alike, if they do not
sell one-time tickets in the manner pointed out in Item 3.7.15.
This exemption is applied only by taking account of the manner
of selling of tickets, i.e. not less than half of one-time
tickets are sold at news stalls and in shops in which cash
registers are used and every act of tickets' selling is
registered. Such account in cash is easier to be controlled by
the administration of the economic entity and the tax
inspectorate. V. Vasiliauskas pointed out that this manner is
also used by some private enterprises, and that cash registers
are installed and used by some municipal carrier enterprises
which do not apply the system of selling one-time tickets. In
the opinion of V. Vasiliauskas, these provisions of the
Resolution (wording of 28 December 1999) do not violate the
freedom of individual economic activity and initiative, while
due to the improved control of payment of taxes by carriers of
all types of ownership fair competition is secured and the goal
is achieved that their activity serve the welfare of the
people. Therefore, in the opinion of the representative of the
party concerned, Items 3.4.4 and 3.7.15 of the Resolution
(wording of 28 December 1999) are in compliance with Paragraphs
1, 3 and 4 of Article 46 of the Constitution.
3. According to the representative of the party concerned,
the use of cash registers in passenger transport (especially in
town routes as in such cases the same fare for the service is
charged) is not complex, it does not inconvenience the work of
the driver. The cash register accumulates cumulative data,
therefore the record of revenues becomes simplified, the number
of additional documents to be made at the time of work and
after work by the driver is diminished. When cash registers are
used in accounting in cash with the residents the work of the
drivers does not become more stressful and insecure. Therefore,
in the opinion of the representative of the party concerned,
the disputed provisions of the Resolution (wording of 28
December 1999) are in compliance with Paragraph 1 of Article 48
of the Constitution.
4. V. Vasiliauskas noted that the freight carriers
mentioned by the petitioner most often carry freights of
enterprises and residents, while cash registers for settling
accounts between enterprises and with the residents are not
necessary in such a case since the counting-house of the
freight carrier issues an account document for every client,
which has all the necessary requisites pointed out in the Law
on the Principles of Accounting. In addition, after the
expiration of the term established in Item 3.4.4 of the
Resolution (wording of 28 December 1999), the procedure under
which revenues are registered in passenger transport vehicles
is the same as in most of other economic entities conducting
different economic activities, which render services for a big
number of clients, therefore the conditions of fair competition
are even broadened. The municipal carrier enterprises are in
dominant positions in a number of towns, however this is
determined by the existing circumstances but not by the
procedure of registering of revenues, which is established by
the Resolution (wording of 28 December 1999). The
representative of the party concerned pointed out that after
cash registers had been installed, the portion of private
carriers in the market did not diminish. The manner of
registering revenues by cash registers has lead to
technological development, the advantages and facilitation of
work due to which are recognised by the carriers themselves.
Therefore, in the opinion of V. Vasiliauskas, the disputed
norms of the Resolution (wording of 28 December 1999) are in
compliance with the provision of the Law on Competition.
IV
In the course of the preparation of the case for the
Constitutional Court hearing, written explanations were
received from Z. Balčytis, Minister of Transport of the
Republic of Lithuania, R. Kairelis, Vice-minister of Social
Security and Labour, P. Koverovas, Vice-minister of Justice, V.
Vadapalas, Director General of the European Law Department
under the Government of the Republic of Lithuania, R.
Stanikūnas, Chairman of the Competition Board of the Republic
of Lithuania, V. Žukauskas, Chief of the State Road Transport
Inspectorate under the Ministry of Transport, Prof. Habil. Dr.
A. Pajuodis, Prof. Habil. Dr. V. Vengrauskas, Assoc. Prof. Dr.
B. Čereška, Assoc. Prof. Dr. J. Ruževičius, Assoc. Prof. Dr. V.
Sūdžius who work at the Faculty of Economics, Vilnius
University, as well as from the Civil and Commercial Law
Department of the Law University of Lithuania (prepared by D.
Švirinas), and from U. Trumpa, President of the Lithuanian Free
Market Institute.
V
At the Constitutional Court hearing the representative of
the party concerned R. Murauskas virtually reiterated the
arguments set forth in the written explanations by the
representative of the party concerned V. Vasiliauskas.
The Constitutional Court
holds that:
I
1. On 4 June 1998, the Government adopted Resolution No.
664 "On the Introduction and Use of Cash Registers". In Item
3.4.4 thereof it was established that cash registers must be
installed "until 1 January 2000 in the ticket offices of
entertainment, culture and sport enterprises, in the ticket
offices of passenger transport enterprises, as well as in
vehicles of passenger transport in which tickets are sold,
which are registered with the territorial state tax
inspectorates. In entertainment, culture and sport enterprises
as well as in their ticket offices it is permitted to sell
information publications designated to the said events."
On 28 December 1999, the Government adopted Resolution No.
1493 "On the Partial Amendment of Resolution of the Government
of the Republic of Lithuania No. 664 'On the Introduction and
Use of Cash Registers' of 4 June 1998". After this resolution
had set forth Item 3.4.4 of the aforementioned Government
resolution of 4 June 1998 in a new wording, it established that
cash registers must be installed "until 1 January 2000 in the
ticket offices of passenger transport enterprises and in
passenger transport vehicles in which tickets are sold, which
are registered with the territorial state tax inspectorates.
Local government councils may, by their decision, postpone, for
up to three months, the term of installation of cash registers
in town passenger transport vehicles in which tickets are sold,
which are registered with the territorial state tax
inspectorates."
Item 5 of Government Resolution No. 1493 "On the Partial
Amendment of Resolution of the Government of the Republic of
Lithuania No. 664 'On the Introduction and Use of Cash
Registers' of 4 June 1998" of 28 December 1999 supplemented
Government Resolution No. 664 of 4 June 1998 by Item 3.7.15
which provided that cash registers are not necessary "in town
passenger transport vehicles in which one pays the fare by
punching one-time tickets. Not less than half of one-time
tickets which are sold by the carrier must be sold permanently
at news stalls, in shops or other trading places".
2. The petitioner requests to determine whether Item 3.4.4
of the Resolution (wording of 28 December 1999) is in
compliance with Paragraphs 1, 3 and 4 of Article 46 and
Paragraph 1 of Article 48 of the Constitution and Paragraph 1
of Article 1 of the Law on Competition, and whether Item 3.7.15
of the same resolution is in compliance with Paragraphs 1, 3
and 4 of Article 46 of the Constitution, as well as Paragraph 1
of Article 2, Paragraph 11 of Article 3 and Items 1 and 2 of
Article 9 of the Law on Competition.
3. The petitioner requests to determine whether Item 3.4.4
of the Resolution (wording of 28 December 1999) is in
compliance with Paragraphs 1, 3 and 4 of Article 46 and
Paragraph 1 of Article 48 of the Constitution and Paragraph 1
of Article 1 of the Law on Competition.
It is clear from the motives presented by the petitioner
that he doubts as to the compliance of not entire Item 3.4.4 of
the Resolution (wording of 28 December 1999) with Paragraphs 1,
3 and 4 of Article 46 and Paragraph 1 of Article 48 of the
Constitution and Paragraph 1 of Article 1 of the Law on
Competition but only of the provision of the said item
specifying that cash registers must be installed in passenger
transport vehicles in which tickets are sold, which are
registered with the territorial state tax inspectorates.
4. The petitioner requests to determine whether Item 3.4.4
of the Resolution (wording of 28 December 1999) is in
compliance with Paragraph 1 of Article 48 of the Constitution.
It is clear from the motives presented by the petitioner
that he doubts as to the compliance of Item 3.4.4 of the
Resolution (wording of 28 December 1999) with not entire
Paragraph 1 of Article 48 of the Constitution but only the
provision of the said paragraph specifying that every person
shall have the right to adequate, safe and healthy working
conditions.
5. Subsequent to the petition of the petitioner, the
Constitutional Court will consider whether
1) the provision of Item 3.4.4 of the Resolution (wording
of 28 December 1999) that cash registers must be installed in
passenger transport vehicles in which tickets are sold, which
are registered with the territorial state tax inspectorates, is
in compliance with Paragraphs 1, 3 and 4 of Article 46 of the
Constitution, the provision of Paragraph 1 of Article 48 of the
Constitution that every person shall have the right to
adequate, safe and healthy working conditions, and Paragraph 1
of Article 1 of the Law on Competition;
2) Item 3.7.15 of the Resolution (wording of 28 December
1999) is in compliance with Paragraphs 1, 3 and 4 of Article 46
of the Constitution, as well as Paragraph 1 of Article 2,
Paragraph 11 of Article 3 and Items 1 and 2 of Article 9 of the
Law on Competition.
II
On the compliance of Items 3.4.4 and 3.7.15 of Government
Resolution No. 664 "On the Introduction and Use of Cash
Registers" of 4 June 1998 (wording of 28 December 1999) with
Paragraphs 1, 3 and 4 of Article 46 of the Constitution.
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."
2. The petitioner points out that Items 3.4.4 and 3.7.15
of the Resolution differentiate passenger carriers: Item 3.4.4
is designated for private carriers, while Item 3.7.15 singles
out the passenger transport (carriers) which is within the area
of regulation of local governments. In the opinion of the
petitioner, due to the introduction of cash registers the
expenses of private carriers of passengers increase, the
freedom of economic activity is restricted, private businesses
are ruined, the development of private ownership is being
blocked. State ownership is given priority over private
ownership. Advantageous conditions are created for local
government (municipal) passenger transport carriers to operate
in the market, the freedom of fair competition is violated, and
the market is being monopolised. All this is regulated not by a
law but a substatutory act, i.e. a governmental resolution. In
the opinion of the petitioner, such legal regulation conflicts
with Paragraphs 1, 3 and 4 of Article 46 of the Constitution.
3. The notion of individual economic activity and
initiative which is entrenched in Paragraph 1 of Article 46 of
the Constitution is a broad one. It includes the freedom to
freely choose business, freedom to freely conclude contracts,
freedom of fair competition, equal rights of entities of
economic activity etc. (Constitutional Court rulings of 18
April 1996 and 14 March 2002).
4. Paragraph 3 of Article 46 of the Constitution provides
that the state shall regulate economic activity so that it
serves the general welfare of the people. While construing the
content of Paragraph 3 of Article 46 of the Constitution, one
must pay attention to the fact that the freedom of individual
economic activity is not absolute. The state regulates economic
activity, while coordinating the interests of individuals and
of the society. In this constitutional provision a
constitutional principle is consolidated establishing the
purposes and limits of regulation of economic activity
(Constitutional Court ruling of 14 March 2002). While
regulating economic activity, the state may not violate fair
competition, the equality of economic entities, and other
principles enshrined in the Constitution.
It is noteworthy that Paragraph 3 of Article 46 of the
Constitution is related to Paragraph 2 of the same article in
which it is established that the state shall support economic
efforts and initiative which are useful to the community. While
regulating economic activity, the state may not establish any
such legal regulation which might create unfavourable and
unequal conditions for economic activity of economic entities,
which might limit initiative, and which would not create
opportunities for the initiative to show its worth.
5. The provision of Paragraph 4 of Article 46 of the
Constitution that the law shall protect freedom of fair
competition means, inter alia, that the legislature is
obligated to establish such legal regulation by law so that
production and the market would not become monopolised, that
the freedom of fair competition would be ensured and the means
and ways for its protection would be provided for. Besides,
this provision means that the legal acts issued by other state
and local government institutions may not violate the said
constitutional principles.
6. While construing the provisions of Paragraphs 1, 3 and
4 of Article 46 of the Constitution in a systematic manner, one
has to note that the state, while regulating economic activity,
must ensure the interests of both the private person (an entity
of this activity) and the society. Economic activity is
inseparable from the duty to pay taxes and other obligatory
payments, from the duty to observe the established financial
procedure.
The legislature, which has a constitutional duty to
regulate economic activity so that it serves the general
welfare of the people, regulates the financial activity of
economic entities as well and establishes ways of conducting
accounting. Under the Republic of Lithuania Law on Accountancy,
accountancy is a system of registering, grouping and
generalising of economic operations and economic events having
monetary expression; this system is designated to acquire
information for adoption of economic decisions and/or creating
financial accountability. In the course of conducting
book-keeping, various ways and means of accountancy are used.
One of the ways of organisation and conducting of accountancy
is the introduction and use of cash registers.
It needs to be noted that the laws not only provide for a
duty to install cash registers but also for responsibility for
a failure to accomplish this duty or for its improper
accomplishment (e.g. Articles 1633-1638 of the Code of
Administrative Violations of Law of the Republic of Lithuania).
7. Item 3.4.4 of the Resolution (wording of 28 December
1999) provides for a duty to install cash registers in the
ticket offices of passenger transport enterprises and vehicles
of passenger transport in which tickets are sold, which are
registered with the territorial state tax inspectorates. Item
3.7.15 of the Resolution (wording of 28 December 1999) provides
that cash registers are not necessary "in town passenger
transport vehicles in which one pays the fare by punching
one-time tickets, if not less than half of one-time tickets
sold by the carrier are sold permanently at news stalls, in
shops or other trading places.
Item 3.4.4 of the Resolution (wording of 28 December 1999)
provides for a duty to install cash registers in all passenger
transport vehicles, belonging both to private enterprises and
municipal passenger transport enterprises if they do not sell
one-time tickets by the aforesaid way. The provision of Item
3.7.15 of the Resolution (wording of 28 December 1999) is
worded by taking account of not the subordination of the
passenger transport to either private or public sector, but of
the way of selling tickets, i.e. if not less than half of
one-time tickets are sold permanently at news stalls, in shops
or other trading places. The private carriers as well as state
and municipal transport enterprises alike may opt for a way of
selling one-time tickets at their discretion.
8. The disputed provisions of the Resolution (wording of
28 December 1999) virtually regulate conducting of accountancy.
Such legal regulation does not deny the freedom of fair
competition, and production and the market are not monopolised.
Alongside, there exist no grounds to assert that such legal
regulation violates the right of private ownership, the
persons' economic freedom and initiative, and the provision
that the state shall regulate economic activity so that it
serves the general welfare of the people.
9. On the grounds of the arguments set forth, one is to
conclude that the provision of Item 3.4.4 of the Resolution
(wording of 28 December 1999) that cash registers must be
installed in passenger transport vehicles in which tickets are
sold, which are registered with the territorial state tax
inspectorates, and Item 3.7.15 of the same resolution are in
compliance with Paragraphs 1, 3 and 4 of Article 46 of the
Constitution.
III
On the compliance of Item 3.4.4 of Government Resolution
No. 664 "On the Introduction and Use of Cash Registers" of 4
June 1998 (wording of 28 December 1999) with the provision of
Paragraph 1 of Article 48 of the Constitution that every person
shall have the right to adequate, safe and healthy working
conditions.
1. Paragraph 1 of Article 48 of the Constitution provides
that every person shall have the right to adequate, safe and
healthy working conditions.
The right to adequate, safe and healthy working conditions
means inter alia that every employee has the right to such
working conditions which would not exert negative influence on
his life, health, and which would be in line with the
requirements of security and hygiene. The working environment,
the nature of work, the time of work and rest, the means of
work are to be considered working conditions.
2. The petitioner maintains that after cash registers are
installed in private passenger transport, the psychological
stress of the drivers increases and there appears danger for
the traffic and passengers' security. Inadequate, insecure and
unhealthy working conditions are created for the drivers. In
the opinion of the petitioner, such legal regulation conflicts
with Paragraph 1 of Article 48 of the Constitution.
3. After Item 3.4.4 of the Resolution (wording of 28
December 1999) had established that cash registers must be
installed in passenger transport vehicles in which tickets are
sold, which are registered with the territorial state tax
inspectorates, the right to adequate, safe and healthy working
conditions was not violated. When using the cash registers for
ticket selling, one must observe the security requirements
linked thereto, which are provided for in legal acts. The
disputed legal regulation does not deny such requirements.
4. On the grounds of the arguments set forth, one is to
conclude that the provision of Item 3.4.4 of the Resolution
(wording of 28 December 1999) that cash registers must be
installed in passenger transport vehicles in which tickets are
sold, which are registered with the territorial state tax
inspectorates, is in compliance with the provision of Paragraph
1 of Article 48 of the Constitution that every person shall
have the right to adequate, safe and healthy working
conditions.
IV
On the compliance of Items 3.4.4 and 3.7.15 of Government
Resolution No. 664 "On the Introduction and Use of Cash
Registers" of 4 June 1998 (wording of 28 December 1999) with
Paragraph 1 of Article 1 of the Law on Competition.
1. Paragraph 1 of Article 1 of the Law on Competition
provides: "The purpose of this Law is to protect freedom of
fair competition in the Republic of Lithuania."
2. The petitioner maintains that Item 3.4.4 of the
Resolution (wording of 28 December 1999) singles out private
carriers from among other carriers. Item 3.7.15 of the
Resolution (wording of 28 December 1999) makes the position of
municipal passenger transport an exceptional one and thus it
violates fair competition. In the opinion of the petitioner,
such legal regulation is in conflict with Paragraph 1 of
Article 1 of the Law on Competition.
3. It has been held in this Ruling of the Constitutional
Court that the provision of Item 3.4.4 of the Resolution
(wording of 28 December 1999) that cash registers must be
installed in passenger transport vehicles in which tickets are
sold, which are registered with the territorial state tax
inspectorates, and Item 3.7.15 of the same resolution do not
violate the freedom of fair competition. The disputed legal
regulation does not deny the purpose of the Law on Competition.
4. On the grounds of the arguments set forth, one is to
conclude that the provision of Item 3.4.4 of the Resolution
(wording of 28 December 1999) that cash registers must be
installed in passenger transport vehicles in which tickets are
sold, which are registered with the territorial state tax
inspectorates, and Item 3.7.15 of the same resolution are in
compliance with Paragraph 1 of Article 1 of the Law on
Competition.
V
On the compliance of Item 3.7.15 of Government Resolution
No. 664 "On the Introduction and Use of Cash Registers" of 4
June 1998 (wording of 28 December 1999) with Paragraph 1 of
Article 2 of the Law on Competition.
1. Paragraph 1 of Article 2 of the Law on Competition
provides: "This Law shall prohibit undertakings from performing
actions which restrict or may restrict competition, regardless
of the character of their activity, except in cases where this
Law or laws governing individual areas of economic activity
provide for exemptions and permit certain actions prohibited
under this Law."
2. The petitioner maintains that the disputed item of the
Resolution (wording of 28 December 1999) restricts competition.
3. Paragraph 1 of Article 2 of the Law on Competition
provides for a prohibition for economic entities to perform
actions which restrict or may restrict competition.
It needs to be noted that under Item 3.7.15 of the
Resolution (wording of 28 December 1999) economic entities are
not empowered to perform any actions which restrict or may
restrict competition.
4. On the grounds of the arguments set forth, one is to
conclude that Item 3.7.15 of the Resolution (wording of 28
December 1999) is in compliance with Paragraph 1 of Article 2
of the Law on Competition.
VI
On the compliance of Item 3.7.15 of Government Resolution
No. 664 "On the Introduction and Use of Cash Registers" of 4
June 1998 (wording of 28 December 1999) with Paragraph 11 of
Article 3 of the Law on Competition.
1. Paragraph 11 of Article 3 of the Law on Competition
provides: "'Dominant position' means the position of one or
more undertakings in the relevant market directly facing no
competition or enabling it to make unilateral decisive
influence in such relevant market by effectively restricting
competition. Unless proved otherwise, the undertaking with the
market share of not less than 40% shall be considered to have a
dominant position in the relevant market. Unless proved
otherwise, each of a group of three or a smaller number of
undertakings with the largest shares of the relevant market,
jointly holding 70% or more of the relevant market shall be
considered to enjoy a dominant position."
In the opinion of the petitioner, municipal passenger
transport (carriers) dominates in the market, while Item 3.7.15
of the Resolution (wording of 28 December 1999) consolidates
this dominance still further.
3. Paragraph 11 of Article 3 of the Law on Competition
contains the definition of the dominant position in the market.
It is noteworthy that Item 3.7.15 of the Resolution
(wording of 28 December 1999) does not present another
definition of the dominant position in the market, which would
be different from that established in Paragraph 11 of Article 3
of the Law on Competition. The said items regulates relations
of different nature.
4. On the grounds of the arguments set forth, one is to
conclude that Item 3.7.15 of the Resolution (wording of 28
December 1999) is in compliance with Paragraph 3 of Article 11
of the Law on Competition.
VII
On the compliance of Item 3.7.15 of Government Resolution
No. 664 "On the Introduction and Use of Cash Registers" of 4
June 1998 (wording of 28 December 1999) with Items 1 and 2 of
Article 9 of the Law on Competition.
1. Items 1 and 2 of Article 9 of the Law on Competition
provide: "It shall be prohibited to abuse a dominant position
within the relevant market by carrying out actions which
restrict or may restrict competition, limit without cause the
possibilities of other undertakings to act in the market, or
violate the interests of consumers, including:
1) direct or indirect imposition of unfair prices or other
purchase or selling conditions;
2) limitation of trade, production or technical
development to the prejudice of consumers."
2. The petitioner maintains that Item 3.7.15 of the
Resolution (wording of 28 December 1999), which is a
substatutory act, unreasonably restricted an opportunity of
private carriers to operate in the market, and due to the
compulsory installation of cash registers in private transport
the conditions of sale are imposed upon them, and technological
development is impeded. Thus, in the opinion of the petitioner,
Item 3.7.15 of the Resolution (wording of 28 December 1999)
conflicts with Items 1 and 2 of Article 9 of the Law on
Competition.
3. It has already been held in this Ruling of the
Constitutional Court, that Item 3.7.15 of the Resolution
(wording of 28 December 1999) does not violate the freedom of
fair competition.
It is noteworthy that the said item regulates the
relations of conducting of accountancy but not those of
dominance in the market. Thus, Item 3.7.15 of the Resolution
(wording of 28 December 1999) regulates relations of a
different nature than those regulated in Items 1 and 2 of
Article 9 of the Law on Competition.
4. On the grounds of the arguments set forth, one is to
conclude that Item 3.7.15 of the Resolution (wording of 28
December 1999) is in compliance with Items 1 and 2 of Article 9
of the Law on Competition.
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 the provision of Item 3.4.4 of
Resolution of the Government of the Republic of Lithuania No.
664 "On the Introduction and Use of Cash Registers" of 4 June
1998 (wording of 28 December 1999) that cash registers must be
installed in passenger transport vehicles in which tickets are
sold, which are registered with the territorial state tax
inspectorates, and Item 3.7.15 of the same resolution are in
compliance with the Constitution of the Republic of Lithuania.
2. To recognise that the provision of Item 3.4.4 of
Resolution of the Government of the Republic of Lithuania No.
664 "On the Introduction and Use of Cash Registers" of 4 June
1998 (wording of 28 December 1999) that cash registers must be
installed in passenger transport vehicles in which tickets are
sold, which are registered with the territorial state tax
inspectorates, is in compliance with Paragraph 1 of Article 1
of the Republic of Lithuania Law on Competition.
3. To recognise that Item 3.7.15 of Resolution of the
Government of the Republic of Lithuania No. 664 "On the
Introduction and Use of Cash Registers" of 4 June 1998 (wording
of 28 December 1999) is in compliance with Paragraph 1 of
Article 1, Paragraph 1 of Article 2, Paragraph 11 of Article 3
and Items 1 and 2 of Article 9 of the Republic of Lithuania Law
on Competition.
This Constitutional Court ruling is final and not subject
to appeal.
The ruling is promulgated on behalf of the Republic of
Lithuania.