Lietuviškai
Case No. 34/01
THE CONSTITUTIONAL COURT OF THE REPUBLIC OF
LITHUANIA
DECISION
ON THE REQUEST OF THE PANEVĖŽYS REGIONAL
ADMINISTRATIVE COURT TO INVESTIGATE THE COMPLIANCE
OF NORMS OF THE REPUBLIC OF LITHUANIA LAW ON
LEVIES WITH THE CONSTITUTION OF THE REPUBLIC OF
LITHUANIA AS WELL AS THE COMPLIANCE OF PROVISIONS
OF GOVERNMENT OF THE REPUBLIC OF LITHUANIA
RESOLUTION NO. 1458 "ON THE CONFIRMATION OF THE
LIST OF OBJECTS OF STATE LEVY AND ITS AMOUNTS AS
WELL AS THE PROCEDURE FOR ITS PAYMENT AND
RETURNING" OF 15 DECEMBER 2000 WITH THE
CONSTITUTION OF THE REPUBLIC OF LITHUANIA AND LAWS
6 May 2003
Vilnius
The Constitutional Court of the Republic of Lithuania,
composed of the Justices 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 Seimas of the Republic of
Lithuania, the party concerned, who was Vilija Račkauskienė,
chief specialist of the Legal Department of the Office of the
Seimas, and the representative of the Government of the
Republic of Lithuania, the party concerned, who was Vitas
Vasiliauskas, Vice-minister of Finance,
pursuant to Paragraph 1 of Article 102 of the Constitution
of the Republic of Lithuania and Paragraph 1 of Article 1 of
the Law on the Constitutional Court of the Republic of
Lithuania, on 10 April 2003 in its public hearing heard Case
No. 34/01 which originated in a petition of the Panevėžys
Regional Administrative Court requesting to determine as to
whether
1) Article 10 of the Republic of Lithuania Law on Levies
to the extent providing in what cases the state levy is
returned, however, not providing how one has to return or
compensate otherwise a bigger stamp duty paid previously is not
in conflict with Paragraph 1 of Article 29 and Paragraphs 1 and
4 of Article 46 of the Constitution of the Republic of
Lithuania;
2) Article 18 of the Republic of Lithuania Law on Levies
to the extent holding the Republic of Lithuania Law on Stamp
Duty as no longer valid, however, not providing as to how one
has to return or compensate a bigger stamp duty paid previously
is not in conflict with Paragraph 1 of Article 29 and
Paragraphs 1 and 4 of Article 46 of the Constitution of the
Republic of Lithuania;
3) Government of the Republic of Lithuania Resolution No.
1458 "On the Confirmation of the List of Objects of State Levy
and Its Amounts as well as the Procedure for Its Payment and
Returning" of 15 December 2000 to the extent holding Government
of the Republic of Lithuania Resolution No. 1123 of 11 November
1994 (with subsequent amendments and supplements) as no longer
valid, however, not providing as to how one has to return or
compensate a bigger stamp duty paid previously is not in
conflict with Paragraph 1 of Article 29 and Paragraphs 1 and 4
of Article 46 of the Constitution of the Republic of Lithuania,
Article 4 of the Republic of Lithuania Law on Competition and
Paragraphs 1 and 2 of Article 14 of the Republic of Lithuania
Law on Enterprises;
4) Item 6 of the Procedure for Payment and Returning of
the State Levy as confirmed by Government of the Republic of
Lithuania Resolution No. 1458 of 15 December 2000 to the extent
providing in what cases the state levy is returned, however,
not providing how one has to return or compensate otherwise a
bigger stamp duty paid previously is not in conflict with
Paragraph 1 of Article 29 and Paragraphs 1 and 4 of Article 46
of the Constitution of the Republic of Lithuania, Article 4 of
the Republic of Lithuania Law on Competition and Paragraphs 1
and 2 of Article 14 of the Republic of Lithuania Law on
Enterprises.
The Constitutional Court
has established:
I
The Panevėžys Regional Administrative Court, the
petitioner, was investigating an administrative case. By its
ruling, the said court suspended the consideration of the case
and applied to the Constitutional Court with the request to
investigate as to whether
1) Article 10 of the Law on Levies to the extent providing
in what cases the state levy is returned, however, not
providing how one has to return or compensate otherwise a
bigger stamp duty paid previously is not in conflict with
Paragraph 1 of Article 29 and Paragraphs 1 and 4 of Article 46
of the Constitution;
2) Article 18 of the Law on Levies to the extent holding
the Law on Stamp Duty as no longer valid, however, not
providing as to how one has to return or compensate a bigger
stamp duty paid previously is not in conflict with Paragraph 1
of Article 29 and Paragraphs 1 and 4 of Article 46 of the
Constitution;
3) Government Resolution No. 1458 "On the Confirmation of
the List of Objects of State Levy and Its Amounts as well as
the Procedure for Its Payment and Returning" of 15 December
2000 to the extent holding Government Resolution No. 1123 of 11
November 1994 (with subsequent amendments and supplements),
however, not providing as to how one has to return or
compensate a bigger stamp duty paid previously is not in
conflict with Paragraph 1 of Article 29 and Paragraphs 1 and 4
of Article 46 of the Constitution, Article 4 of the Law on
Competition and Paragraphs 1 and 2 of Article 14 of the Law on
Enterprises;
4) Item 6 of the Procedure for Payment and Returning of
the State Levy as confirmed by Government of the Resolution No.
1458 of 15 December 2000 to the extent providing in what cases
the state levy is returned, however, not providing how one has
to return or compensate otherwise a bigger stamp duty paid
previously is not in conflict with Paragraph 1 of Article 29
and Paragraphs 1 and 4 of Article 46 of the Constitution,
Article 4 of the Law on Competition and Paragraphs 1 and 2 of
Article 14 of the Law on Enterprises.
II
The request of the petitioner is grounded on the following
arguments.
1. Until 31 December 2000, the amount, payment and
returning of the stamp duty for the issuance of licences for
trading in alcoholic beverages were regulated by the Law on
Stamp Duty and Government of the Republic of Lithuania
Resolution No. 1123 of 11 November 1994 (with subsequent
amendments and supplements). Under Item 17.1 of the Rates of
Stamp Duty (wording of 3 July 2000) as confirmed by the said
resolution, for issuance and renewal of the licence for retail
trading in all kinds of alcoholic beverages in the city of
Panevėžys one would have to pay the duty of LTL 30,000. On 1
January 2001 the Law on Levies went into effect which
recognised the Law on Stamp Duty as no longer valid. One
provided for the levy of LTL 800 by Item 8.5 of the List of
Objects of State Levy and Its Amounts as confirmed by
Government Resolution of No. 1458 of 15 December 2000 which
implements the provisions of the Law on Levies. Neither the Law
on Levies nor the Government resolution provides for an
opportunity to return or otherwise compensate the excessively
big stamp duty paid before. The said acts indicate the final
list of cases when the levy is returned.
2. Paragraph 1 of Article 29 of the Constitution provides
that all persons shall be equal before the law, the court, and
other State institutions and officials. In the opinion of the
petitioner, after the Law on Levies and the Government
resolution covering the former had gone in effect, the economic
entities trading in alcoholic beverages were placed in
different situations: the entities which acquired or renewed
licences for trade in alcohol prior to the entry into effect of
the Law on Levies became discriminated.
3. Paragraph 1 of Article 46 of the Constitution provides
that Lithuania's economy shall be based on the right of private
ownership and individual freedom of economic activity and
initiative. Paragraph 4 of the same article provides that the
law shall prohibit monopolisation of production and the market
and shall protect freedom of fair competition. The petitioner
asserts that danger may also arise to fair competition when the
entities which operate in the same market, in the same sector,
and at the same time pay considerably different contributions
for the same municipal service.
4. Paragraphs 1 and 2 of Article 14 of the Law on
Enterprises do not permit the state bodies to regulate, by
means of administrative methods, economic activities of
enterprises and they declare the same legal and economic
conditions for all enterprises. In the opinion of the
petitioner, issuance of the licence is one of the conditions of
economic regulation, therefore, when certain enterprises pay
LTL 30,000 for issuance or renewal of the licence, while others
pay LTL 800, there appear unequal conditions of economic
activities.
5. Article 4 of the Law on Competition provides that
institutions of state administration and self-government must
ensure freedom of fair competition. Institutions of state
administration and self-government shall be prohibited from
adopting legal acts or other decisions which grant privileges
to or discriminate against any individual economic entities or
their groups and which bring about or may bring about
differences in the conditions of competition for competitors in
the relevant market. The petitioner maintains that the
Government established rates of the levy are considerably less
than previously valid rates of the stamp duty, also, one did
not provide for an opportunity to return part of the paid stamp
duty, therefore such legal regulation might restrict fair
competition.
III
1. In the course of the preparation of the case for the
Constitutional Court hearing, written explanations were
received from the representative of the Seimas, the party
concerned, who was O. Buišienė, and written explanations from
the representative of the Government, the party concerned, who
was V. Vasiliauskas, Vice-minister of Finance. In the course of
the preparation of the case a letter was received from the
representative of the Seimas V. Račkauskienė, chief specialist
of the Legal Department of the Office of the Seimas, wherein
she concurs with the opinion set forth by the representative of
the party concerned O. Buišienė.
1. O. Buišienė points out that, under Paragraph 3 of
Article 19 of the Law on Alcohol Control, retail trade in
alcoholic beverages is a type of activity subject to licence.
Until the entry into effect of the Law on Levies, the issuance
and renewal of this licence (permit) used to be taxed by a
stamp duty (Item 15 of Paragraph 1 of Article 3 of the Law on
Stamp Duty). Item 3 of Paragraph 1 of Article 4 of the Law on
Levies names the issuance and renewal of this licence (permit)
as one of the objects of state levy. The law also establishes
the procedure of payment of this levy (Article 9) and cases of
its returning (Article 10). Under Items 1 and 2 of Paragraph 1
of Article 10 of the Law on Levies, there are two such cases:
(1) when one has paid more than the amount of the levy
established by the Government; (2) when the services are not
rendered. This list is final. O. Buišienė notes that the
purpose and nature of the stamp duty and of the levy are the
same: it is payment (obligatory contribution) for certain
actions performed or services rendered by state institutions.
However, the cases and procedure of returning of these payments
is a matter of different laws.
According to O. Buišienė, the provisions of the Law on
Levies cannot replace the rights and duties of participants of
social relations, which were regulated and established by the
previously effective Law on Stamp Duty. The validity of the Law
on Stamp Duty expired upon entry into effect of the Law on
Levies whose norms regulated the same social relations in a
different manner. The Law on Levies does not contain the norm
that upon considerable change of the amount of the state levy
for issuance of licences for trading in alcoholic beverages,
the sum of the previously paid stamp duty is also to be
returned. Legal relations arise only on the grounds of the
valid law. Therefore, all the economic entities which had paid
the stamp duty of the established amount for the actions
performed by state institutions and the issued documents
(licences) bearing legal power, were granted the right to trade
in alcoholic beverages.
According to O. Buišienė, if the Law on Levies provided
for the procedure for returning of stamp duty, this would
influence the rights of all participants of the said relations
in a negative manner. Besides, there would occur legal effects,
which might be favourable to one party of the relation, but
unfavourable to the other. Paragraph 1 of Article 29 of the
Constitution establishes equality of all persons, including
economic entities, before the law, the court and other state
institutions and officials, therefore, in case part of the paid
stamp duty is returned to a certain economic entity or group
thereof, the rights of other persons engaged in the same
economic activity would be violated. This would be in conflict
with the constitutional principle of equality of all persons.
O. Buišienė notes that the Government, while executing the
obligation by the Seimas to establish the procedure of
returning of the state levy, adopted Resolution No. 1458 "On
the Confirmation of the List of Objects of State Levy and Its
Amounts as well as the Procedure for Its Payment and Returning"
on 15 December 2000. This resolution, as a substatutory legal
act, was adopted on the basis of the Law on Levies and it
particularises corresponding norms of the law. The Government
cannot change the law or create legal norms of new character,
which, by their power, would compete with the norms of the law.
In the Procedure for Payment and Returning of the State Levy as
confirmed by the said resolution, the procedure, terms and
conditions of returning of the state levy was specified and
particularised: it does not regulate any norms, which are not
contained in the Law on Levies, i.e. returning or compensation
of the paid stamp duty.
The economic entities which wished to trade in alcoholic
beverages and which met the requirements raised by the Law on
Levies were permitted to engage in the said activities after
they had paid the payment for issuance of the licence. The
state granted such a right to them. The duty of the state is to
issue documents bearing legal power, while the duty of the
economic entity is to pay the payment of established amount for
the issuance of such documents and conform to the requirements
set down in the licence. Therefore, according to O. Buišienė,
there are no grounds to assert that Article 10 of the Law on
Levies is in conflict with Paragraph 1 of 46 of the
Constitution.
The right to engage in the activities subject to licence
means that it is permitted to carry out only the activity and
under the conditions which are indicated in the licence issued,
however, this document does not establish obligatory economic
restrictions , therefore the issuance of this document does not
exert direct influence on the result of economic activity,
regardless of whether or not the activity is subject to
licence. Therefore, in the opinion of the representative of the
party concerned, there are no grounds to assert that Article 10
of the Law on Levies is in conflict with Paragraph 4 of Article
46 of the Constitution.
2. V. Vasiliauskas notes that the amount of the state
levy, under Article 5 of the Law on Levies, directly depends on
the expenses of the issuance of the document or rendering of
the service, therefore, for the issuance or renewal of licences
for retail trading in alcoholic beverages, the list of objects
of the state levy, as confirmed by Government Resolution No.
1458 "On the Confirmation of the List of Objects of State Levy
and Its Amounts as well as the Procedure for Its Payment and
Returning" of 15 December 2000, establishes a smaller state
levy, if compared with the amounts of the previously valid
stamp duty, which had been determined on the grounds of the
fiscal criterion.
The representative of the party concerned points out that
in their essence the stamp duty and the state levy are
different from taxes (regular taxes) as taken in their real
meaning, since the former are of a direct payment nature. In
its essence, the state levy (stamp duty) is one-time payment
for concrete action performed by the state institution or for
the issued document bearing legal power. For this action or for
the issuance of the document (according to the legal acts
regulating the paying of this payment) one had to pay the
payment of the amount which was valid at the time of the
performance of the action (issuance of the document) and had to
be paid prior to the actions performed by the institutions,
i.e. prior to the issuance or renewal of licences. Therefore,
in the opinion of V. Vasiliauskas, the stamp duty which was
paid for issuance or renewal of licences, i.e. for the action
performed in 2000, if compared with the amounts of state levies
in 2001, is not overpayment and may not be returned.
The representative of the party concerned emphasises that
the state levy (stamp duty) is virtually paid on a voluntary
basis, i.e. the payer, if he wishes that the state institution
render the service to him, pays the state levy (stamp duty)
prior to the rendition of the service. However, upon paying of
the payment and performance of the service, the legal relation
between the payer and the state institutions is virtually over.
In the opinion of the representative of the party
concerned, the fact that in 2001 one had to pay a smaller state
levy for the analogous service of the state (municipal)
institution cannot serve as the ground for the demand that the
paid stamp duty be returned.
IV
In the course of the preparation of the case for the
Constitutional Court hearing, written explanations were
received from A. Butkevičius, Chairman of the Seimas Committee
on Budget and Finance, G. Švedas, Vice-minister of Justice, M.
Strumskis, the then Head of the State Taxation Inspectorate
under the Ministry of Finance of the Republic of Lithuania, R.
Stanikūnas, Chairman of the Competition Council of the Republic
of Lithuania, Assoc. Prof. E. Šileikis who works at the
Department of Public Law of the Faculty of Law, Vilnius
University, and R. Vainienė, Vice-president of the Lithuanian
Free Market Institute.
V
At the Constitutional Court hearing, the representative of
the Seimas V. Račkauskienė, chief specialist of the Legal
Department of the Office of the Seimas, and the representative
of the Government V. Vasiliauskas, Vice-minister of Finance,
virtually reiterated the arguments set forth in their written
explanations.
The Constitutional Court
holds that:
1. Article 10 of the Law on Levies provides:
"1. The paid state levy or part thereof shall be returned
in these cases:
1) when one has paid more than the amount of the levy
established by the Government;
2) when the services have not been rendered.
2. The State levy shall be returned if the request on its
return has been filed with the local administrator of the tax
within the time limit established in the Law on Tax
Administration.
3. The procedure for returning of the State levy shall be
established by the Government."
The petitioner requests to investigate whether Article 10
of the Law on Levies "to the extent providing in what cases the
state levy is returned, however, not providing how one has to
return or compensate otherwise a bigger stamp duty paid
previously" is not in conflict with Paragraph 1 of Article 29
and Paragraphs 1 and 4 of Article 46 of the Constitution.
The formula "to the extent providing in what cases the
state levy is returned, however, not providing how one has to
return or compensate otherwise a bigger stamp duty paid
previously" employed in the request of the petitioner means
that the petitioner has doubts as to the compliance of not
entire Article 10 of the Law on Levies with the Constitution
but as to the compliance of Paragraph 1 of Article 10 of the
said law with Paragraph 1 of Article 29 and Paragraphs 1 and 4
of Article 46 of the Constitution to the extent that it is
provided in Paragraph 1 of Article 10 of the Law on Levies in
what cases the state levy is returned, but that it does not
provide that the stamp duty paid previously (under the Law on
Stamp Duty which was in force prior to the entry into effect of
the Law on Levies), which was bigger than a corresponding levy
established later, is to be returned or otherwise compensated.
2. Article 18 of the Law on Levies provides:
"1. This Law shall become effective as of 1 January 2001
save Article 17 hereof.
2. Upon entry into effect of this Law, the following shall
become no longer valid:
1) the Republic of Lithuania Law on Stamp Duty (Official
Gazette Valstybės žinios, 1994, No. 51-950, No. 89-1712; 1995,
No. 47-1135; 1996, No. 18-462, No. 46-1112, No. 116-2691; 1997,
No. 33-810, No. 97-2443; 1998, No. 98-2714);
2) the Republic of Lithuania Law on Local Levies (Official
Gazette Valstybės žinios, 1996, No. 57-1339; 1997, No. 58-1329;
1998, No. 38-998)."
The petitioner requests to investigate whether Article 18
of the Law on Levies "to the extent holding the Law on Stamp
Duty as no longer valid, however, not providing as to how one
has to return or compensate a bigger stamp duty paid
previously" is not in conflict with Paragraph 1 of Article 29
and Paragraphs 1 and 4 of Article 46 of the Constitution.
Thus, the petitioner has doubts whether Article 18 of the
Law on Levies to the extent that it holds the Law on Stamp Duty
as no longer valid but that it does not provide that the stamp
duty paid previously (under the Law on Stamp Duty which was in
force prior to the entry into effect of the Law on Levies),
which was bigger than a corresponding levy established later,
is to be returned or otherwise compensated, is not in conflict
with Paragraph 1 of Article 29 and Paragraphs 1 and 4 of
Article 46 of the Constitution.
3. The petitioner requests to investigate whether
Government Resolution No. 1458 "On the Confirmation of the List
of Objects of State Levy and Its Amounts as well as the
Procedure for Its Payment and Returning" of 15 December 2000
"to the extent holding Government Resolution No. 1123 of 11
November 1994 (with subsequent amendments and supplements) as
no longer valid, however, not providing as to how one has to
return or compensate a bigger stamp duty paid previously" is
not in conflict with Paragraph 1 of Article 29 and Paragraphs 1
and 4 of Article 46 of the Constitution, Article 4 of the Law
on Competition and Paragraphs 1 and 2 of Article 14 of the Law
on Enterprises.
It is clear from Government Resolution No. 1458 of 15
December 2000 that Government Resolution No. 1123 of 11
November 1994 as well as the other 86 Government resolutions
whereby one used to amend and/or supplement Government
Resolution No. 1123 of 11 November 1994 was recognised as no
longer valid by Item 3 of Government Resolution No. 1458 of 15
December 2000.
Thus, the petitioner has doubts whether Item 3 of
Government Resolution No. 1458 "On the Confirmation of the List
of Objects of State Levy and Its Amounts as well as the
Procedure for Its Payment and Returning" of 15 December 2000
whereby Government Resolution No. 1123 of 11 November 1994 as
well as the other 86 Government resolutions is held as no
longer valid by which Government Resolution No. 1123 of 11
November 1994 used to be amended and/or supplemented and that
it does not provide that the stamp duty paid previously (under
the Law on Stamp Duty which was in force prior to the entry
into effect of the Law on Levies), which was bigger than a
corresponding levy established later, is to be returned or
otherwise compensated, is not in conflict with Paragraph 1 of
Article 29 and Paragraphs 1 and 4 of Article 46 of the
Constitution, Article 4 of the Law on Competition and
Paragraphs 1 and 2 of Article 14 of the Law on Enterprises.
4. Item 6 of the Procedure for Payment and Returning of
the State Levy as confirmed by Government Resolution No. 1458
of 15 December 2000 provides: "The state levy shall be returned
in the cases established in Article 10 of the Republic of
Lithuania Law on Levies on the grounds of requests submitted by
the payers and certificates of the institutions rendering the
services wherein one must indicate the reasons for returning of
the state levy."
The petitioner requests to investigate whether Item 6 of
the Procedure "to the extent providing in what cases the state
levy is returned, however, not providing how one has to return
or compensate otherwise a bigger stamp duty paid previously" is
not in conflict with Paragraph 1 of Article 29 and Paragraphs 1
and 4 of Article 46 of the Constitution, Article 4 of the Law
on Competition and Paragraphs 1 and 2 of Article 14 of the Law
on Enterprises.
Thus, the petitioner has doubts whether Item 6 of the
Procedure to the extent that it provides in what cases the
state levy is returned and that that it does not provide that
the stamp duty paid previously (under the Law on Stamp Duty
which was in force prior to the entry into effect of the Law on
Levies), which was bigger than a corresponding levy established
later, is to be returned or otherwise compensated, is not in
conflict Paragraph 1 of Article 29 and Paragraphs 1 and 4 of
Article 46 of the Constitution, Article 4 of the Law on
Competition and Paragraphs 1 and 2 of Article 14 of the Law on
Enterprises.
5. It is clear from the content of the petition that the
petitioner doubts not as to the compliance of the legal
regulation established in the said provisions of Articles 10
and 18 of the Law on Levies with Paragraph 1 of Article 29 and
Paragraphs 1 and 4 of Article 46 of the Constitution, also, not
as to the compliance of the legal regulation established in
Item 3 of Government Resolution No. 1458 "On the Confirmation
of the List of Objects of State Levy and Its Amounts as well as
the Procedure for Its Payment and Returning" of 15 December
2000 and Item 6 of the Procedure for Payment and Returning of
the State Levy as confirmed by the said Government resolution
with Paragraph 1 of Article 29 and Paragraphs 1 and 4 of
Article 46 of the Constitution, Article 4 of the Law on
Competition and Paragraphs 1 and 2 of Article 14 of the Law on
Enterprises, but as to the fact whether the said provisions of
Articles 10 and 18 of the Law on Levies do not provide that the
stamp duty paid previously (under the Law on Stamp Duty which
was in force prior to the entry into effect of the Law on
Levies), which was bigger than a corresponding levy established
later, must be returned or otherwise compensated is not in
conflict with Paragraph 1 of Article 29 and Paragraphs 1 and 4
of Article 46 of the Constitution, also, the fact that Item 3
of Government Resolution No. 1458 "On the Confirmation of the
List of Objects of State Levy and Its Amounts as well as the
Procedure for Its Payment and Returning" of 15 December 2000
and Item 6 of the Procedure for Payment and Returning of the
State Levy as confirmed by the said Government resolution do
not provide that the stamp duty paid previously (under the Law
on Stamp Duty which was in force prior to the entry into effect
of the Law on Levies), which was bigger than a corresponding
levy established later, must be returned or otherwise
compensated is not in conflict Paragraph 1 of Article 29 and
Paragraphs 1 and 4 of Article 46 of the Constitution, Article 4
of the Law on Competition and Paragraphs 1 and 2 of Article 14
of the Law on Enterprises. It is also clear from the content of
the petition that the petitioner believes that the aforesaid
provisions of Articles 10 and 18 of the Law on Levies, Item 3
of Government Resolution No. 1458 "On the Confirmation of the
List of Objects of State Levy and Its Amounts as well as the
Procedure for Its Payment and Returning" of 15 December 2000
and Item 6 of the Procedure for Payment and Returning of the
State Levy as confirmed by the said Government resolution ought
to provide that the stamp duty paid previously (under the Law
on Stamp Duty which was in force prior to the entry into effect
of the Law on Levies), which was bigger than a corresponding
levy established later, must be returned or otherwise
compensated.
Thus, the petitioner requests to investigate something
which is not established but, in his opinion, ought to be
established in Articles 10 and 18 of the Law on Levies, Item 3
of Government Resolution No. 1458 "On the Confirmation of the
List of Objects of State Levy and Its Amounts as well as the
Procedure for Its Payment and Returning" of 15 December 2000
and Item 6 of the Procedure for Payment and Returning of the
State Levy as confirmed by the said Government resolution.
6. If the laws (parts thereof) do not establish certain
legal regulation, the Constitution Court enjoys the
constitutional powers to investigate the compliance of these
laws (parts thereof) with the Constitution in the cases when
due to the fact that the said legal regulation has not been
established in particularly those laws (parts thereof) the
principles and/or norms of the Constitution might be violated.
The Constitutional Court also enjoys the constitutional
powers to investigate the compliance of the substatutory acts
(parts thereof) of the Seimas, the Government, the President of
the Republic in which certain legal regulation is not
established with the Constitution and/or laws in the cases when
due to the fact that the said legal regulation has not been
established in particularly those substatutory legal acts
(parts thereof) the Constitution and/or laws might be violated.
In the cases when the petitioner disputes the fact that
the law or another disputed legal act (part thereof) indicated
by the petitioner has not established certain legal regulation,
but the said legal regulation under the Constitution (or under
the laws, too, in case one disputes a substatutory legal act of
the Seimas, the Government or the President of the Republic)
need not be established in that particular disputed legal act
(part thereof), the Constitutional Court holds that in the case
on the request of the petitioner the matter of investigation is
absent; this is the grounds to dismiss the case (Constitutional
Court ruling of 25 January 2001).
7. Paragraph 1 of Article 10 of the Law on Levies provides
for situations in which the state levy paid is returned;
Article 18 of the Law on Levies inter alia provides as to from
what date the Law on Stamp Duty becomes no longer valid;
Government Resolution No. 1123 of 11 November 1994 as well as
the other 86 Government resolutions whereby one used to amend
and/or supplement Government Resolution No. 1123 of 11 November
1994 was recognised as no longer valid by Item 3 of Government
Resolution No. 1458 "On the Confirmation of the List of Objects
of State Levy and Its Amounts as well as the Procedure for Its
Payment and Returning" of 15 December 2000; Item 6 of the
Procedure for Payment and Returning of the State Levy as
confirmed by Government Resolution No. 1458 of 15 December 2000
provided for the procedure of returning of the paid state levy.
The provisions of the Law on Levies and the items of
Government Resolution No. 1458 of 15 December 2000 which have
been pointed out by the petitioner are not designated to
regulate relations linked with returning or other compensation
of the stamp duty paid earlier (under the Law on Stamp Duty
which was in force prior to the Law on Levies) which was bigger
than a later established corresponding levy. Under the
Constitution, the provisions of the Law on Levies do not have
to provide (contrary to the opinion of the petitioner) that the
stamp duty paid earlier (under the Law on Stamp Duty which was
in force prior to the Law on Levies) which was bigger than a
later established corresponding levy ought to be returned or
otherwise compensated.
Thus, the matter of investigation is absent in the case on
the request of the petitioner whether Article 10 of the Law on
Levies to the extent providing in what cases the state levy is
returned, however, not providing how one has to return or
compensate otherwise a bigger stamp duty paid previously, also
Article 18 thereof to the extent holding the Law on Stamp Duty
as no longer valid, however, not providing as to how one has to
return or compensate a bigger stamp duty paid previously are
not in conflict with Paragraph 1 of Article 29 and Paragraphs 1
and 4 of Article 46 of the Constitution, whether Government
Resolution No. 1458 "On the Confirmation of the List of Objects
of State Levy and Its Amounts as well as the Procedure for Its
Payment and Returning" of 15 December 2000 to the extent
holding Government Resolution No. 1123 of 11 November 1994
(with subsequent amendments and supplements) as no longer
valid, however, not providing as to how one has to return or
compensate a bigger stamp duty paid previously and whether Item
6 of the Procedure for Payment and Returning of the State Levy
as confirmed by the said Government resolution to the extent
providing in what cases the state levy is returned, however,
not providing how one has to return or compensate otherwise a
bigger stamp duty paid previously are not in conflict with
Paragraph 1 of Article 29 and Paragraphs 1 and 4 of Article 46
of the Constitution, Article 4 of the Law on Competition and
Paragraphs 1 and 2 of Article 14 of the Law on Enterprises.
8. It needs to be noted that the fact that in the case on
the request of the petitioner the matter of investigation is
absent means that the petition is not within the jurisdiction
of the Constitutional Court.
Under Item 2 of Paragraph 1 of Article 69 of the Law on
the Constitutional Court, the Constitutional Court shall refuse
to consider petitions to investigate the compliance of a legal
act with the Constitution, if the consideration of the petition
does not fall under the jurisdiction of the Constitutional
Court.
Paragraph 3 of Article 69 of the Law on the Constitutional
Court provides that in the event that the grounds for refusal
to consider a petition have been established after the
commencement of the investigation of the case during the
hearing of the Constitutional Court, a decision to dismiss the
case shall be adopted.
Taking account of the arguments set forth, one is to
dismiss the case on the request of the petitioner.
Conforming to Article 102 of the Constitution of the
Republic of Lithuania, Item 2 of Paragraph 1 of Article 69 as
well as Paragraph 3 of the same article of the Law on the
Constitutional Court of the Republic of Lithuania, the
Constitutional Court of the Republic of Lithuania has adopted
the following
decision:
To dismiss the case on the petition of the Panevėžys
Regional Administrative Court requesting to investigate as to
whether Article 10 of the Republic of Lithuania Law on Levies
to the extent providing in what cases the state levy is
returned, however, not providing how one has to return or
compensate otherwise a bigger stamp duty paid previously, also
Article 18 thereof to the extent holding the Republic of
Lithuania Law on Stamp Duty as no longer valid, however, not
providing as to how one has to return or compensate a bigger
stamp duty paid previously are not in conflict with Paragraph 1
of Article 29 and Paragraphs 1 and 4 of Article 46 of the
Constitution of the Republic of Lithuania, whether Government
of the Republic of Lithuania Resolution No. 1458 "On the
Confirmation of the List of Objects of State Levy and Its
Amounts as well as the Procedure for Its Payment and Returning"
of 15 December 2000 to the extent holding Government of the
Republic of Lithuania Resolution No. 1123 of 11 November 1994
(with subsequent amendments and supplements) as no longer
valid, however, not providing as to how one has to return or
compensate a bigger stamp duty paid previously, and whether
Item 6 of the Procedure for Payment and Returning of the State
Levy as confirmed by the said Government resolution to the
extent providing in what cases the state levy is returned,
however, not providing how one has to return or compensate
otherwise a bigger stamp duty paid previously are not in
conflict with Paragraph 1 of Article 29 and Paragraphs 1 and 4
of Article 46 of the Constitution of the Republic of Lithuania,
Article 4 of the Republic of Lithuania Law on Competition and
Paragraphs 1 and 2 of Article 14 of the Republic of Lithuania
Law on Enterprises.
This decision of the Constitutional Court of the Republic
of Lithuania is final and not subject to appeal.
The decision is promulgated in the name of the Republic of
Lithuania.
Justices of the Constitutional Court: Armanas Abramavičius
Egidijus Jarašiūnas
Egidijus Kūris
Kęstutis Lapinskas
Zenonas Namavičius
Augustinas Normantas
Jonas Prapiestis
Vytautas Sinkevičius
Stasys Stačiokas