Lietuviškai
Case No. 49/2000
THE CONSTITUTIONAL COURT OF THE REPUBLIC OF
LITHUANIA
DECISION
ON THE CONSTRUCTION OF THE CONSTITUTIONAL COURT
RULING OF 24 DECEMBER 2002
11 February 2004
Vilnius
The Constitutional Court of the Republic of Lithuania,
composed of the Justices of the Constitutional Court Armanas
Abramavičius, Egidijus Kūris, Kęstutis Lapinskas, Zenonas
Namavičius, Augustinas Normantas, Jonas Prapiestis, Vytautas
Sinkevičius, and Stasys Stačiokas,
with the secretary of the hearing-Sigutė Brusovienė,
in the presence of:
the representative of the Seimas of the Republic of
Lithuania, the petitioner, in Case 49/2000, who was Petras
Papovas, a member of the Seimas, and the representative of the
Seimas of the Republic of Lithuania, the party concerned in
Case 49/2000, who was Ona Buišienė, chief consultant to the
Legal Department of the Office of the Seimas,
pursuant to Article 61 of the Law on the Constitutional
Court of the Republic of Lithuania, on 3 February 2004 in its
public hearing considered the petition of Petras Papovas, a
member of the Seimas, to construe the following provisions of
the 24 December 2004 Constitutional Court Ruling "On the
compliance of Paragraph 3 of Article 3 (wording of 12 October
2000), Paragraph 4 of Article 3 (wording of 12 October 2000),
Item 2 of Paragraph 1 of Article 5 (wording of 12 October
2000), Paragraph 1 of Article 18 (wording of 12 October 2000),
Items 2, 3, 4, 8, and 15 of Paragraph 1 of Article 19 (wording
of 12 October 2000), Items 1, 5, 7, 9, 12, 15, 16, 17, and 18
of Paragraph 1 of Article 21 (wording of 12 October 2000), Item
6 of the same Paragraph (wordings of 12 October 2000 and 25
September 2001), and Item 14 of the same Paragraph (wordings of
12 October 2000 and 8 November 2001) of the Republic of
Lithuania Law on Local Self-government, as well as the Republic
of Lithuania Constitutional Law on the Procedure of the
Application of the Law on the Alteration of Article 119 of the
Constitution, and the Republic of Lithuania Law on the Entering
into the List of Constitutional Laws of the Constitutional Law
on the Procedure of the Application of the Law on the
Alteration of Article 119 of the Constitution, with the
Constitution of the Republic of Lithuania":
1) "The same persons may not discharge the functions in
the implementation of state power and, at the same time, be
members of municipal councils, through which the right of self
government is implemented. <...> Under the Constitution, the
state officials who, according to the Constitution and laws
enjoy the powers to control or supervise the activities of
municipal councils, may not be members of municipal councils,
either" (Item 20.4.1 of Chapter II of the reasoning part of the
ruling);
2) "The constitutional provision that municipalities shall
act freely and independently within their competence, which
shall be established by the Constitution and laws, also means
that in case the Constitution or laws attribute certain
functions to municipalities, then municipalities discharge
these functions to the extent that they are attributed such
functions. It means that a certain part of the competence of
municipalities must be implemented directly, that the
implementation of decisions adopted by municipal councils
within the limits of their competence must not be bound by
decisions (permissions, consents, etc.) of certain state
institutions or officials. However, it needs to be emphasised
that even the functions which exclusively belong to
municipalities are regulated by laws. Not a single one of these
functions mean that in a respective area municipalities are
absolutely independent" (Item 17.2 of Chapter II of the
reasoning part of the ruling);
3) "Under the Constitution, the executive bodies
accountable to municipal councils do not have the right to
adopt decisions which are not grounded on laws, decisions of
the Government and/or corresponding municipal councils, also
such which, by their legal power, would compete with those
passed by the municipal councils" (Item 21.4 of Chapter II of
the reasoning part of the ruling);
4) "The adoption of the decisions on the municipal issues
indicated in Paragraph 1 of Article 40, Paragraph 2 of Article
41, Paragraph 2 of Article 47, Paragraph 4 of Article 119,
Paragraphs 1 and 2 of Article 121 and Article 122 of the
Constitution is the exclusive constitutional competence of
municipal councils. Under the Constitution, it is not permitted
to establish the legal regulation which would create legal
preconditions for executive bodies accountable to municipal
councils to interfere with the exclusive constitutional
competence of municipal councils in the adoption of the
decisions on the issues indicated in Paragraph 1 of Article 40,
Paragraph 2 of Article 41, Paragraph 2 of Article 47, Paragraph
4 of Article 119, Paragraphs 1 and 2 of Article 121 and Article
122 of the Constitution" (Item 21.4.1 of Chapter II of the
reasoning part of the ruling);
5) "<...> the establishment, by law, of the functions and
competence of the executive bodies accountable to municipal
councils is left to be done by the Seimas. However <...> the
principles of accountability of executive bodies to the
representation and of supremacy of municipal councils in regard
to the executive bodies which are accountable to them, both of
which are established in the Constitution, imply that the
municipal councils have the powers to control the executive
bodies which are established by and accountable to them. Under
the Constitution, the right of self-government is implemented
through municipal councils, thus, all decisions adopted by the
executive bodies accountable to municipal councils on the
issues assigned to the competence of municipalities are
subordinated to decisions of corresponding municipal councils"
(Item 21.4.2 of Chapter II of the reasoning part of the
ruling);
6) "As decisions adopted by municipal councils are
inseparable from the execution of these decisions, then the
municipal representative institutions as well as the municipal
executive institutions, both of which are provided for in the
Constitution, according to their competence are responsible for
the implementation of the right of self-government and for the
direct implementation of the laws, the decisions of the
Government and the municipal council" (Item 21.5 of Chapter II
of the reasoning part of the ruling);
7) "Municipal councils, while implementing the right of
self-government guaranteed by the Constitution, may also
establish other municipal institutions and other municipal
establishments which have authoritative empowerments" (Item
21.6 of Chapter II of the reasoning part of the ruling).
The Constitutional Court
has established:
I
1. In Case 49/2000 of 24 December 2002, the Constitutional
Court has passed the Ruling "On the compliance of Paragraph 3
of Article 3 (wording of 12 October 2000), Paragraph 4 of
Article 3 (wording of 12 October 2000), Item 2 of Paragraph 1
of Article 5 (wording of 12 October 2000), Paragraph 1 of
Article 18 (wording of 12 October 2000), Items 2, 3, 4, 8, and
15 of Paragraph 1 of Article 19 (wording of 12 October 2000),
Items 1, 5, 7, 9, 12, 15, 16, 17, and 18 of Paragraph 1 of
Article 21 (wording of 12 October 2000), Item 6 of the same
Paragraph (wordings of 12 October 2000 and 25 September 2001),
and Item 14 of the same Paragraph (wordings of 12 October 2000
and 8 November 2001) of the Republic of Lithuania Law on Local
Self-government, as well as the Republic of Lithuania
Constitutional Law on the Procedure of the Application of the
Law on the Alteration of Article 119 of the Constitution, and
the Republic of Lithuania Law on the Entering into the List of
Constitutional Laws of the Constitutional Law on the Procedure
of the Application of the Law on the Alteration of Article 119
of the Constitution, with the Constitution of the Republic of
Lithuania" (Official Gazette Valstybės žinios, 2003, No.
19-828; hereinafter also referred to as the Ruling).
2. In Case 21/2003 of 30 May 2003, the Constitutional
Court has passed the Ruling "On the compliance of Paragraph 2
of Article 4 of the Republic of Lithuania Law on the Supplement
and Amendment of Articles 86 And 87 of the Law on the Elections
to Municipal Councils and Its Supplement with Article 881 with
the Constitution of the Republic of Lithuania and on the
compliance of Government of the Republic of Lithuania
Resolution No. 457 'On the Dismissal of the Chief of the
Vilnius County' of 11 April 2003 with the Constitution of the
Republic of Lithuania and Paragraph 1 of Article 9 of the
Republic of Lithuania Law 'On the Procedure of Publication and
Coming into Force of Republic of Lithuania Laws and Other Legal
Acts'" (Official Gazette Valstybės žinios, 2003, No. 53-2361).
3. P. Papovas, a member of the Seimas, who, in Case
49/2000, used to be a representative of the petitioner, a group
of Seimas members, and who, in Case No. 21/2003, used to be a
representative of the party concerned, the Seimas, in his
petition of 6 January 2004 requests that the Constitutional
Court construe certain provisions of Constitutional Court
rulings of 24 December 2002 and 30 May 2003.
4. On 26 January 2004, the Constitutional Court adopted a
decision concerning division of the petition of P. Papovas of 6
January 2004 into two independent petitions: a petition to
construe certain provisions of the Constitutional Court ruling
of 24 December 2002, and a petition to construe certain
provisions of the Constitutional Court ruling of 30 May 2003.
5. The member of the Seimas P. Papovas requests to
construe the following provisions of the Constitutional Court
ruling of 24 December 2002:
1) The same persons may not discharge the functions in the
implementation of state power and, at the same time, be members
of municipal councils, through which the right of self
government is implemented. <...> Under the Constitution, the
state officials who, according to the Constitution and laws
enjoy the powers to control or supervise the activities of
municipal councils, may not be members of municipal councils,
either" (Item 20.4.1 of Chapter II of the reasoning part of the
ruling);
2) "The constitutional provision that municipalities shall
act freely and independently within their competence, which
shall be established by the Constitution and laws, also means
that in case the Constitution or laws attribute certain
functions to municipalities, then municipalities discharge
these functions to the extent that they are attributed such
functions. It means that a certain part of the competence of
municipalities must be implemented directly, that the
implementation of decisions adopted by municipal councils
within the limits of their competence must not be bound by
decisions (permissions, consents, etc.) of certain state
institutions or officials. However, it needs to be emphasised
that even the functions which exclusively belong to
municipalities are regulated by laws. Not a single one of these
functions mean that in a respective area municipalities are
absolutely independent" (Item 17.2 of Chapter II of the
reasoning part of the ruling);
3) "Under the Constitution, the executive bodies
accountable to municipal councils do not have the right to
adopt decisions which are not grounded on laws, decisions of
the Government and/or corresponding municipal councils, also
such which, by their legal power, would compete with those
passed by the municipal councils" (Item 21.4 of Chapter II of
the reasoning part of the ruling);
4) "The adoption of the decisions on the municipal issues
indicated in Paragraph 1 of Article 40, Paragraph 2 of Article
41, Paragraph 2 of Article 47, Paragraph 4 of Article 119,
Paragraphs 1 and 2 of Article 121 and Article 122 of the
Constitution is the exclusive constitutional competence of
municipal councils. Under the Constitution, it is not permitted
to establish the legal regulation which would create legal
preconditions for executive bodies accountable to municipal
councils to interfere with the exclusive constitutional
competence of municipal councils in the adoption of the
decisions on the issues indicated in Paragraph 1 of Article 40,
Paragraph 2 of Article 41, Paragraph 2 of Article 47, Paragraph
4 of Article 119, Paragraphs 1 and 2 of Article 121 and Article
122 of the Constitution" (Item 21.4.1 of Chapter II of the
reasoning part of the ruling);
5) "<...> the establishment, by law, of the functions and
competence of the executive bodies accountable to municipal
councils is left to be done by the Seimas. However <...> the
principles of accountability of executive bodies to the
representation and of supremacy of municipal councils in regard
to the executive bodies which are accountable to them, both of
which are established in the Constitution, imply that the
municipal councils have the powers to control the executive
bodies which are established by and accountable to them. Under
the Constitution, the right of self-government is implemented
through municipal councils, thus, all decisions adopted by the
executive bodies accountable to municipal councils on the
issues assigned to the competence of municipalities are
subordinated to decisions of corresponding municipal councils
(Item 21.4.2 of Chapter II of the reasoning part of the
ruling);
6) "As decisions adopted by municipal councils are
inseparable from the execution of these decisions, then the
municipal representative institutions as well as the municipal
executive institutions, both of which are provided for in the
Constitution, according to their competence are responsible for
the implementation of the right of self-government and for the
direct implementation of the laws, the decisions of the
Government and the municipal council" (Item 21.5 of Chapter II
of the reasoning part of the ruling);
7) "Municipal councils, while implementing the right of
self-government guaranteed by the Constitution, may also
establish other municipal institutions and other municipal
establishments which have authoritative empowerments" (Item
21.6 of Chapter II of the reasoning part of the ruling).
II
1. At the Constitutional Court hearing the representative
of a group of Seimas members in Case No. 49/2000 P. Papovas
virtually reiterated the arguments set forth in his petition to
construe certain provisions of the Ruling. Alongside, P.
Papovas stated that, in his opinion, it is impossible to draw
up a final list of offices, when the persons holding them
cannot be members of municipal councils, however, he requested
that the Constitutional Court formulate more precisely under
what criteria it is possible to establish that persons holding
certain offices cannot be municipal council members at the same
time.
2. At the court hearing the representative of the Seimas,
the party concerned, in Case 49/2000 O. Buišienė, chief
consultant to the Legal Department of the Office of the Seimas,
noted that it is impossible to draw up a final list of offices,
which is requested to be done by the member of the Seimas P.
Papovas, when the persons holding them cannot be members of
municipal councils, however, it might be possible to more
precisely define the powers, when the officials enjoying them
cannot be municipal council members at the same time.
The Constitutional Court
holds that:
I
1. A Constitutional Court ruling is integral. Its
resolution part is based upon the arguments of the reasoning
part (statement). Therefore, while construing its ruling, the
Constitutional Court is bound both by the content of the part
of resolution and that of reasoning of its ruling.
The decision adopted concerning construction of a
Constitutional Court ruling is inseparable from the
Constitutional Court ruling (Constitutional Court decision of
12 January 2000).
2. Under Paragraph 3 of Article 61 of the Law on the
Constitutional Court, the Constitutional Court must construe
its ruling without changing its content.
II
1. The member of the Seimas P. Papovas requests to
construe the provision "The same persons may not discharge the
functions in the implementation of state power and, at the same
time, be members of municipal councils, through which the right
of self government is implemented. <...> Under the
Constitution, the state officials who, according to the
Constitution and laws enjoy the powers to control or supervise
the activities of municipal councils, may not be members of
municipal councils, either" of the Ruling (Item 20.4.1 of
Chapter II of the reasoning part of the Ruling).
1.1. It is clear from the petition that it is requested to
construe as to which state officials, according to the
statement "the state officials who <...> enjoy the powers to
control or supervise the activities of municipal councils, may
not be members of municipal councils" of Item 20.4.1 of Chapter
II of the reasoning part of the Ruling, are to be attributed to
the officials who enjoy the powers to control or supervise the
activities of municipal councils and who, due to this, may not
be members of the municipal councils.
The Constitutional Court will only construe the said
statement of Item 20.4.1 of Chapter II of the reasoning part of
the Constitutional Court ruling of 24 December 2002.
1.2. It was held in the Ruling that, under the
Constitution, state administration and local self-government
are two systems of public power, that, under the Constitution,
local self-government is self-regulation and self-action of the
communities of the administrative units of state territory, in
accordance with the competence defined by the Constitution and
laws, which are provided for by law (i.e. territorial or local
communities), and which are composed of permanent residents of
these units (citizens of the Republic of Lithuania and other
permanent residents).
Under the Constitution, in administrative units of the
territory of the state which are provided for by the law, the
right of self-government is implemented through municipal
councils. Paragraph 4 of Article 119 of the Constitution
provides that for the direct implementation of the laws of the
Republic of Lithuania, the decisions of the Government and the
municipal council, the municipal council shall establish
executive bodies accountable to it. It was held in the
Constitutional Court ruling of 24 December 2002 that the
executive bodies which are accountable to municipal councils
are inseparable part of the self-government mechanism, and that
the municipal representative institutions as well as the
municipal executive institutions, both of which are provided
for in the Constitution, according to their competence are
responsible for the implementation of the right of
self-government and for the direct implementation of the laws,
the decisions of the Government and the municipal council.
Self-government presupposes certain freedom and autonomy
of activities, as well as independence from state authority
institutions. The principle of coordination of interests of
municipalities and those of the state manifests itself inter
alia in that the state supervises municipal activities in the
form prescribed by the law (Constitutional Court ruling of 18
February 1998).
It was held in the Constitutional Court ruling of 24
December 2002 that a certain part of the competence of
municipalities must be implemented directly, that the
implementation of decisions adopted by municipal councils
within the limits of their competence must not be bound by
decisions (permissions, consents, etc.) of certain state
institutions or officials.
It was held in the Constitutional Court ruling of 24
December 2002 that the formula "state officials who, according
to the Constitution and laws, enjoy the powers to control or
supervise activities of municipalities" should be construed as
comprising also those state officials on whose decisions
depends the implementation of the competence of the municipal
councils provided for by the Constitution.
1.3. The provision of Paragraph 2 of Article 120 of the
Constitution that municipalities shall act freely and
independently within their competence, which shall be
established by the Constitution and laws, means that the
legislator has both the right and the duty to define, while
taking account of the exclusive competence of municipalities
which is directly established in the Constitution, the
competence of municipal councils and executive bodies
accountable to them. While defining the competence of municipal
councils and executive bodies accountable to them, the
legislator can also establish the procedure of realisation of
this competence, the supervision and control of municipal
activities, as well as the officials who enjoy powers to
control or supervise the activities of municipal councils and
executive bodies accountable to them.
The formula "powers to control and supervise municipal
activities" means that respective state officials (servants and
other persons irrespective of how they are referred to in laws;
hereinafter-state officials) have the right to adopt decisions
upon which depend the adoption and implementation of decisions
of municipal councils within their competence defined by the
Constitution and laws. It has been held in the ruling that
members of the municipal councils may not be unequal according
to their legal status. This constitutional requirement would be
violated if a person who, under the Constitution and laws,
enjoyed powers to adopt the decisions that might determine the
adoption and implementation of decisions of municipal councils
within the competence defined in the Constitution and laws. It
is due to this that state officials who, under the Constitution
and laws, enjoy powers to control and supervise municipal
activities cannot, at the same time, be members of municipal
councils as well.
It needs to be emphasised that state officials who enjoy
powers to conduct only organisational, technical etc. control
or supervision of the executive bodies accountable to municipal
councils, of municipal establishments or enterprises (e.g., in
the areas of the environment, sanitation and hygiene,
education, labour security, economy and trade, construction,
tax administration, clerical work and many others) cannot be
attributed to the state officials who have the right to adopt
decisions upon which the adoption and implementation of
decisions of municipal councils within their competence defined
in the Constitution and laws would be dependent. Such state
officials may hold their office and be municipal council
members at the same time. While deciding whether a certain
state official is to be attributed to the state officials who
have the right to adopt decisions upon which the adoption and
implementation of decisions of municipal councils within their
competence defined in the Constitution and laws would be
dependent, and who cannot be municipal council members at the
same time, one must assess in every particular case the content
of powers established to them in the Constitution and laws.
1.4. Taking account of the arguments set forth, one is to
hold that the statement "the state officials who <...> enjoy
the powers to control or supervise the activities of municipal
councils, may not be members of municipal councils" of Item
20.4.1 of Chapter II of the reasoning part of the
Constitutional Court ruling of 24 December 2002 inter alia
means that the state officials (servants and other persons
irrespective of how they are referred to in laws) who, under
the Constitution and laws, have the right to adopt decisions
upon which depend the adoption and implementation of decisions
of municipal councils within their competence defined by the
Constitution, may not be municipal council members at the same
time; this statement does not mean that the state officials
enjoying the powers to conduct only organisational, technical
etc. control or supervision of the executive bodies accountable
to municipal councils, of municipal establishments or
enterprises cannot be municipal council members.
2. The member of the Seimas P. Papovas requests to
construe the provision "The constitutional provision that
municipalities shall act freely and independently within their
competence, which shall be established by the Constitution and
laws, also means that in case the Constitution or laws
attribute certain functions to municipalities, then
municipalities discharge these functions to the extent that
they are attributed such functions. It means that a certain
part of the competence of municipalities must be implemented
directly, that the implementation of decisions adopted by
municipal councils within the limits of their competence must
not be bound by decisions (permissions, consents, etc.) of
certain state institutions or officials. However, it needs to
be emphasised that even the functions which exclusively belong
to municipalities are regulated by laws. Not a single one of
these functions mean that in a respective area municipalities
are absolutely independent" of the Ruling (Item 17.2 of Chapter
II of the reasoning part of the Ruling).
2.1. It is clear from the petition that it is requested to
construe whether the statements "<...> the functions which
exclusively belong to municipalities are regulated by laws. Not
a single one of these functions mean that in a respective area
municipalities are absolutely independent" of Item 17.2 of
Chapter II of the reasoning part of the Ruling mean that by the
laws regulating implementation of the functions which
exclusively belong to municipalities also the right of the
Government or ministries to establish certain requirements and
norms to municipalities may be established.
The Constitutional Court will construe only the indicated
statements of Item 17.2 of Chapter II of the reasoning part of
the Ruling.
2.2. It has been mentioned that the fact that
municipalities shall act freely and independently within their
competence, which shall be established by the Constitution and
laws, means that the legislator has both the right and the duty
to define, while taking account of the exclusive competence of
municipalities which is directly established in the
Constitution, the competence of municipal councils.
It has also been mentioned that that a certain part of the
competence of municipalities must be implemented directly, that
the implementation of decisions adopted by municipal councils
within the limits of their competence must not be bound by
decisions (permissions, consents, etc.) of certain state
institutions or officials.
Through the competence, the content of municipal functions
is revealed, therefore, under the Constitution, municipal
functions may only be established by the law. This cannot be
done by a substatutory legal act.
2.3. Alongside, it needs to be noted that, under Paragraph
4 of Article 119 of the Constitution, for the direct
implementation of the laws of the Republic of Lithuania, the
decisions of the Government and the municipal council, the
municipal council shall establish executive bodies accountable
to it. Thus, under the Constitution, in their activities all
municipal institutions must inter alia follow Government
resolutions.
2.4. According to the Constitution, the Government shall
administer the affairs of the country, protect the
inviolability of the territory of the Republic of Lithuania,
guarantee State security and public order, shall execute laws
and resolutions of the Seimas concerning the implementation of
laws, as well as the decrees of the President of the Republic,
shall discharge other duties prescribed to the Government by
the Constitution and other laws (Items 1, 2 and 7 of Article 94
of the Constitution). Under Paragraph 1 of Article 95 of the
Constitution, the Government shall resolve the affairs of state
administration at its sittings by resolutions adopted by
majority vote of all members of the Government.
The Government of the Republic of Lithuania shall consist
of the Prime Minister and ministers (Article 91 of the
Constitution). Under Paragraph 1 of Article 98 of the
Constitution, a minister shall head his respective ministry,
shall resolve issues ascribed to the competence of his ministry
and shall also discharge other functions provided for by laws.
Paragraph 2 of Article 96 of the Constitution inter alia
provides that the ministers direct the branches of
administration entrusted to them and are directly subordinate
to the Prime Minister. Paragraph 2 of Article 95 of the
Constitution provides that Resolutions of the Government shall
be signed by the Prime Minister and the minister of an
appropriate branch.
While executing its functions, the Government, according
to the competence established in the Constitution and laws, has
the right to pass resolutions which are obligatory to all
subjects of legal relations, thus, also to municipal
institutions. Thus, under the competence established in the
Constitution and laws, the Government may, by means of its
resolutions, also establish procedure (procedures), in
accordance of which requirements of laws must be implemented,
thus, also the requirements of laws whereby municipal functions
are established.
If the laws provide that certain relations connected with
the procedure (procedures) of implementation of requirements
laws, thus also the requirements of the laws whereby municipal
functions are established, are regulated by the Government,
then the Government must do so; such legal regulation
established by the Government is obligatory to municipal
institutions as well. If it is established in the laws that
certain relations connected with the procedure (procedures) of
the implementation of laws, thus also the laws establishing
municipal functions, are regulated by an institution empowered
by the Government (for example, a ministry), then the
Government has a duty to establish, by means of a resolution,
which state institutions have to do so, while the latter
institution (its head) must issue a respective legal act; such
legal regulation established by the institution (its head)
empowered by the Government is obligatory to municipal
institutions as well. If it is established in the laws that
certain relations connected with the procedure (procedures) of
the implementation of laws, thus also the laws establishing
municipal functions, are regulated by a ministry (minister) or
another state institution (its head), then this ministry
(minister) or another state institution (its head) must issue a
corresponding legal act, and the legal regulation established
by this ministry (minister) or other state institution (its
head) is obligatory to municipal institutions as well. However,
these Government resolutions, substatutory legal acts issued by
ministries (ministers) or other state institutions (their
heads) cannot change or distort the legal regulation
established in laws, these substatutory legal acts cannot
establish any such legal regulations which would compete with
that established in laws.
It needs to be noted that neither the laws, nor
substatutory legal acts issued by the Government, ministries
(ministers) or other state institutions (their heads) may deny
the constitutional provision that municipalities shall act
freely and independently within their competence, which shall
be established by the Constitution and laws. It also needs to
be noted that, under Article 122 of the Constitution, municipal
councils shall have the right to apply to court regarding the
violation of their rights.
2.5. Taking account of the arguments set forth, one is to
conclude that the statements "<...> the functions which
exclusively belong to municipalities are regulated by laws. Not
a single one of these functions mean that in a respective area
municipalities are absolutely independent" of Item 17.2 of
Chapter II of the reasoning part of the Ruling inter alia mean
that the procedure (procedures) of the implementation of the
requirements of the laws whereby municipal functions are
established, may also be established by substatutory legal acts
issued by the Government, ministries (ministers) or other state
institutions (their heads), in case this is provided for in
laws.
3. The member of the Seimas P. Papovas requests to
construe the provision "under the Constitution, the executive
bodies accountable to municipal councils do not have the right
to adopt decisions which are not grounded on laws, decisions of
the Government and/or corresponding municipal councils, also
such which, by their legal power, would compete with those
passed by the municipal councils" of the Ruling (Item 21.4 of
Chapter II of the reasoning part of the Ruling).
3.1. It is clear from the petition that it is requested to
construe the statement "the executive bodies accountable to
municipal councils do not have the right to adopt decisions
which are not grounded on <...> decisions of <...> municipal
councils, also such which, by their legal power, would compete
with those passed by the municipal councils" of Item 21.4 of
Chapter II of the reasoning part of the Ruling in these
aspects: what is the kind decisions whose adoption is
attributed to the competence of municipal councils, and what
decisions belong to the competence of municipal executive
institutions; whether the adoption of all decisions related
with establishment of municipal establishments, enterprises,
appointment of their heads, supervision of these
establishments, enterprises, etc. belong to the exclusive
competence of municipal councils; whether the laws regulating
the implementation of the functions which exclusively belong to
municipalities can establish the right of municipal councils to
transfer part of the powers, related with the implementation of
these functions, to other municipal institutions?
The Constitutional Court will construe only the said
statement of Item 21.4 of Chapter II of the reasoning part of
the Ruling.
3.2. Under the Constitution, municipal functions and
competence can only be established by the law.
It needs to be noted that the competence of municipal
councils is expressis verbis established in the Constitution
itself. Decisions on these issues can only be adopted by
municipal councils. This is the exclusive constitutional
competence of municipal councils, because (1) the legislator
cannot establish that decisions on these issues are adopted not
by municipal councils, but the executive bodies accountable to
them or other municipal institutions; (2) municipal councils by
themselves may transfer the right to adopt such decisions
neither to the executive bodies accountable to the municipal
councils, nor to any other municipal institutions, while the
legislator cannot establish any such legal regulation under
which municipal councils would be permitted to transfer the
right to adopt such decisions to the executive bodies
accountable to the municipal councils or other municipal
institutions.
It was held in the Constitutional Court ruling of 24
December 2002 that the establishment, by law, of the functions
and competence of the executive bodies accountable to municipal
councils is left to be done by the Seimas. Thus, on the issues
whereby the competence of municipal councils is not expressis
verbis established in the Constitution (is not exceptional
constitutional competence of municipal councils), the
legislator, under the Constitution, enjoys powers to establish
as to the adoption of which decisions is attributable to the
competence of municipal councils, and of which-to the
competence of the executive bodies accountable to municipal
councils or other municipal institutions. In cases when the
laws provide that certain decisions are adopted by municipal
councils, the municipal councils may transfer this right to
adopt such decisions neither to the executive bodies
accountable to the municipal councils, nor other municipal
institutions. However, the legislator, under the Constitution,
may also establish, by means of the law, such legal regulation
under which certain decisions are adopted by municipal
councils, but that they may transfer the right to adopt such
decisions to the executive bodies accountable to the municipal
councils; however, in such cases the following conditions are
to be met: (1) the powers of municipal councils to transfer the
right to adopt certain decisions to the executive bodies
accountable to the municipal councils must be established
expressis verbis in the law; (2) the said powers cannot be
transferred to municipal institutions that, according to the
law, are not executive bodies accountable to the municipal
councils. Still, in other cases the legislator may, by means of
the law, directly establish as regards the questions the
decisions on which are adopted by executive bodies accountable
to the municipal councils.
3.3. In the course of the construction of the statement
"the executive bodies accountable to municipal councils do not
have the right to adopt decisions which are not grounded on
<...> decisions of <...> municipal councils, also such which,
by their legal power, would compete with those passed by the
municipal councils" of Item 21.4 of Chapter II of the reasoning
part of the Ruling, which was pointed out by the member of the
Seimas P. Papovas, it needs to be noted that, as it was held in
the Constitutional Court ruling of 24 December 2002 as well as
in this Decision of the Constitutional Court, under the
Constitution, in administrative units of the territory of the
state which are provided for by the law, the right of
self-government is implemented through municipal councils.
Therefore, while construing the statement pointed out by the
member of the Seimas P. Papovas, one must also take account of
other statements of the same item, which substantiate the
provision "under the Constitution, the executive bodies
accountable to municipal councils do not have the right to
adopt decisions which are not grounded on laws, decisions of
the Government and/or corresponding municipal councils, also
such which, by their legal power, would compete with those
passed by the municipal councils" of Item 21.4 of Chapter II of
the reasoning part of the Ruling which was pointed out by the
member of the Seimas P. Papovas, in particular, of those
stating that "executive bodies which are accountable to
municipal councils may not be treated as ones through which the
right of self-government is implemented by territorial
communities, i.e. as self-government institutions, since under
Paragraph 1 of Article 119 of the Constitution the right of
self-government is implemented through municipal councils",
"<...> the municipal councils have the constitutional
competence to control the said executive bodies. Therefore, the
said executive bodies may not replace municipal councils, or to
bring municipal councils under their control, or to dictate
them. The powers of the executive bodies may not be dominant in
respect to the powers of municipal councils", that "it is not
permitted to establish the legal regulation whereby the
executive bodies accountable to municipal councils would be
equated to the municipal councils which have established them,
let alone the legal regulation whereby the powers of the
executive bodies established by and accountable to municipal
councils would restrict the powers of the latter, or under
which municipal councils would lose an opportunity to control
the executive bodies established by and accountable to them",
that "all decisions of the said executive bodies must be
grounded on laws, as well as decisions of the Government and/or
corresponding municipal councils".
Thus, under the Constitution, the legislatively
established legal regulation under which in certain cases
municipal councils may transfer the right to adopt certain
decisions to the executive bodies accountable to the municipal
councils cannot be such so that preconditions might be created
for a legal situation when the executive bodies accountable to
the municipal councils would replace, or subordinate the
municipal councils to them, or would be equalled to them, would
impose their will on the municipal councils, the powers of the
executive bodies would dominate over those of the municipal
councils, or the powers of the municipal councils would be
restricted by those of the executive bodies established by them
and accountable to them, also when municipal councils would
lose an opportunity to control these executive bodies. By such
legal regulation one would also violate the principle of the
superiority of municipal councils over the executive bodies
that are accountable to them, which is entrenched in the
Constitution and stated in the Constitutional Court ruling of
24 December 2002, would distort the constitutional concept of
local self-government and the essence of self-government rights
of territorial communities, which are implemented through
municipal councils.
3.4. The Ruling does not contain expressis verbis any
provisions regarding establishment of municipal establishments
and enterprises, the appointment of their heads, and
supervision of these establishments and enterprises.
Alongside, it needs to be noted that the formula
"decisions of municipal councils" of the statement "the
executive bodies accountable to municipal councils do not have
the right to adopt decisions which are not grounded on <...>
decisions of <...> municipal councils, also such which, by
their legal power, would compete with those passed by the
municipal councils" of Item 21.4 of Chapter II of the reasoning
part of the Ruling, which was pointed out by the member of the
Seimas P. Papovas, also includes the decisions linked with
establishment of municipal establishments and enterprises, the
appointment of their heads, and supervision of these
establishments and enterprises.
The legislator, when he establishes, by means of the law,
as to who (municipal councils or the executive bodies
accountable to them) has the right to adopt decisions on the
establishing of municipal establishments and enterprises, the
appointment of their heads, and supervision of these
establishments and enterprises, is bound by the aforesaid
constitutional requirements: the decisions on the questions
attributed to the exceptional constitutional competence of
municipal councils can be adopted only by municipal councils;
the legislator, under the Constitution, has powers to establish
as to what decisions on questions not attributed to the
exclusive constitutional competence of municipal councils are
within the competence of municipal councils, and which-of
executive bodies, which are accountable to the municipal
councils, or other municipal institutions; in order that
municipal councils would transfer the right to adopt decisions
to the executive bodies accountable to the municipal councils,
this must be directly indicated in the law; the said
requirements cannot be transferred to the municipal
institutions which, by the law, are not executive bodies
accountable to the municipal councils.
The establishment of municipal establishments and
enterprises is inseparable from the constitutional competence
of municipalities to form and confirm their budgets (Paragraph
1 of Article 121 of the Constitution). Within this context, it
needs to be noted that Item 21.4.1 of Chapter II of the
reasoning part of the Constitutional Court ruling of 24
December 2002 indicates that the adoption of the decisions on
the municipal issues pointed out in inter alia Paragraph 1 of
Article 121 of the Constitution is the exclusive constitutional
competence of municipal councils, and that, under the
Constitution, it is not permitted to establish the legal
regulation which would create legal preconditions for executive
bodies accountable to municipal councils to interfere with the
exclusive constitutional competence of municipal councils in
the adoption of the decisions on the issues indicated in inter
alia Paragraph 1 of Article 121 of the Constitution. Thus, the
legislator, having established, by means of the law, that
municipalities may establish their enterprises and
establishments, cannot establish any such legal regulation
under which decisions on the establishment of these enterprises
and establishments would be adopted not by municipal councils
but by the executive bodies accountable to them. Otherwise, the
exclusive constitutional competence of municipal councils to
form and confirm their budgets, which is established in
Paragraph 1 of Article 121 of the Constitution, would be
violated.
The issue of what are the limits of the discretion of the
legislator when he establishes, by means of the law, as to who
(whether municipal councils or executive bodies accountable to
them) has the right to adopt decisions concerning appointment
of heads of municipal establishments and enterprises, and
supervision of these establishments and enterprises, is to be
assessed in a different manner. In these areas the legislator
enjoys discretion to establish that these decisions are either
adopted by municipal councils, or that they are adopted by
executive bodies accountable to the municipal councils, or that
these decisions are adopted by municipal councils, but that the
latter may transfer the right to adopt such decisions to the
executive bodies accountable to the municipal councils; in this
case the powers of municipal councils to transfer the said
rights to the executive bodies accountable to the municipal
councils must be directly indicated in the law.
It also needs to be noted that after the law establishes
the powers of municipal councils to adopt decisions concerning
transfer of the supervision over municipal establishments and
enterprises to the executive bodies accountable to the
municipal councils, one cannot deny the right of municipal
councils to supervise these establishments and enterprises by
themselves.
3.5. Taking account of the arguments set forth, one is to
hold that the statement "the executive bodies accountable to
municipal councils do not have the right to adopt decisions
which are not grounded on <...> decisions of <...> municipal
councils, also such which, by their legal power, would compete
with those passed by the municipal councils" of Item 21.4 of
Chapter II of the reasoning part of the Ruling inter alia means
that only municipal councils can adopt decisions on questions
attributed to the exclusive constitutional competence of
municipal councils, but not the executive bodies accountable to
them or other municipal institutions; under the Constitution,
the legislator enjoys the powers to establish as to what
decisions on questions not attributed to the exclusive
constitutional competence of municipal councils are within the
competence of municipal councils, and which decisions may be
adopted by executive bodies accountable to municipal councils
or other municipal institutions; the fact that municipal
councils can transfer the right to adopt decisions to executive
bodies accountable to the municipal councils must be directly
indicated in the law; the said powers cannot be transferred to
the municipal institutions which, under the law, are not
executive bodies accountable to the municipal councils.
4. The member of the Seimas P. Papovas requests to
construe the provision "The adoption of the decisions on the
municipal issues indicated in Paragraph 1 of Article 40,
Paragraph 2 of Article 41, Paragraph 2 of Article 47, Paragraph
4 of Article 119, Paragraphs 1 and 2 of Article 121 and Article
122 of the Constitution is the exclusive constitutional
competence of municipal councils. Under the Constitution, it is
not permitted to establish the legal regulation which would
create legal preconditions for executive bodies accountable to
municipal councils to interfere with the exclusive
constitutional competence of municipal councils in the adoption
of the decisions on the issues indicated in Paragraph 1 of
Article 40, Paragraph 2 of Article 41, Paragraph 2 of Article
47, Paragraph 4 of Article 119, Paragraphs 1 and 2 of Article
121 and Article 122 of the Constitution" of the Ruling (Item
21.4.1 of Chapter II of the reasoning part of the Ruling).
4.1. The provision of the Ruling pointed out by the member
of the Seimas P. Papovas mentions Paragraph 2 of Article 47 of
the Constitution. It should be noted that the Ruling was
adopted on 24 December 2002, while it was published in the
official gazette Valstybės žinios and went into effect on 25
February 2003.
At the time of the adoption of the Ruling, Paragraph 2
(wording of 20 June 1996) of Article 47 of the Constitution
used to provide:
"Municipalities, other national entities as well as those
foreign entities conducting economic activities in Lithuania
which are specified by the constitutional law in accordance
with the criteria of European and Transatlantic integration
chosen by the Republic of Lithuania may be permitted to acquire
the ownership of non-agricultural land plots required for the
construction and operation of buildings and facilities
necessary for their direct activities. The procedure,
conditions and restrictions of the acquisition of the ownership
of such a plot shall be established by the constitutional law."
On 23 January 2003, the Seimas adopted the Republic of
Lithuania Law on the Amendment of Article 47 of the
Constitution of the Republic of Lithuania, by Article 1 whereof
it amended Article 47 (wording of 20 June 1996) of the
Constitution. This law went into effect on 24 February 2003. In
Article 47 (wording of 23 January 2003) of the Constitution
there is no longer the legal regulation that used to be
established in Article 47 (wording of 20 June 1996) of the
Constitution.
4.2. It is clear from the petition that it is requested to
construe the statement "under the Constitution, it is not
permitted to establish the legal regulation which would create
legal preconditions for executive bodies accountable to
municipal councils to interfere with the exclusive
constitutional competence of municipal councils" of Item 21.4.1
of Chapter II of the reasoning part of the Ruling in these
aspects: what is the kind of decisions the competence of
adoption of which lies with municipal councils, and what kind
of decisions must be adopted by municipal executive
institutions; whether municipal councils enjoy the competence
to adopt all decisions linked with the establishment of
municipal establishments and enterprises, appointment of their
heads, their supervision etc.; whether one can establish, by
means of laws regulating the implementation of the functions
belonging exclusively to municipalities, the right of municipal
councils to transfer part of the powers linked with the
implementation of these powers to other municipal institutions?
The Constitutional Court will construe only the
aforementioned statement of Item 21.4.1 of Chapter II of the
reasoning part of the Ruling.
4.3. The statement "under the Constitution, it is not
permitted to establish the legal regulation which would create
legal preconditions for executive bodies accountable to
municipal councils to interfere with the exclusive
constitutional competence of municipal councils" of Item 21.4.1
of Chapter II of the reasoning part of the Constitutional Court
ruling of 24 December 2002 requested to be construed by the
member of the Seimas P. Papovas is inseparably related with
another statement that is requested to be construed by him,
i.e. the statement "the executive bodies accountable to
municipal councils do not have the right to adopt decisions
which are not grounded on <...> decisions of <...> municipal
councils, also such which, by their legal power, would compete
with those passed by the municipal councils" of Item 21.4 of
Chapter II of the reasoning part of the Ruling: if the
executive bodies accountable to the municipal councils adopted
decisions that would not be grounded on municipal council
decisions, also decisions which, by their legal power, would be
equal to decisions of municipal councils, it would mean that
the executive bodies accountable to the municipal councils are
interfering with the competence of the municipal councils (the
exclusive constitutional competence and/or the competence
established by the law).
4.4. In this Decision of the Constitutional Court, while
construing the statement "the executive bodies accountable to
municipal councils do not have the right to adopt decisions
which are not grounded on <...> decisions of <...> municipal
councils, also such which, by their legal power, would compete
with those passed by the municipal councils" of Item 21.4 of
Chapter II of the reasoning part of the Ruling, it was held
that, under the Constitution, municipal functions and
competence can only be established by the law; that certain
competence of municipal councils is expressis verbis
established in the Constitution itself (exclusive
constitutional competence)-decisions on these issues can only
be adopted by municipal councils; that, under the Constitution,
the legislatively established legal regulation under which in
certain cases municipal councils may transfer the right to
adopt certain decisions to the executive bodies accountable to
the municipal councils cannot be such so that preconditions
might be created for a legal situation when the executive
bodies accountable to the municipal councils would replace, or
subordinate the municipal councils to them, or would be
equalled to them, would impose their will on the municipal
councils, the powers of the executive bodies would dominate
over those of the municipal councils, or the powers of the
municipal councils would be restricted by those of the
executive bodies established by them and accountable to them,
also when municipal councils would lose an opportunity to
control these executive bodies-by such legal regulation one
would also violate the principle of the superiority of
municipal councils over the executive bodies that are
accountable to them, would distort the constitutional concept
of local self-government and the essence of self-government
rights of territorial communities, which are implemented
through municipal councils.
4.5. It has been mentioned that the Ruling does not
contain expressis verbis any provisions regarding establishment
of municipal establishments and enterprises, the appointment of
their heads, and supervision of these establishments and
enterprises.
It has been mentioned that the establishment of municipal
establishments and enterprises is inseparable from the
constitutional competence of municipalities to form and confirm
their budgets (Paragraph 1 of Article 121 of the Constitution)
and that the adoption of the decisions on the municipal issues
(formation and confirmation of municipal budgets) indicated in
inter alia Paragraph 1 of Article 121 of the Constitution is
the exclusive constitutional competence of municipal councils,
therefore, the legislator, having established, by means of the
law, that municipalities may establish their enterprises and
establishments, cannot establish any such legal regulation
under which decisions on the establishment of these enterprises
and establishments would be adopted not by municipal councils
but by the executive bodies accountable to them, since,
otherwise, the exclusive competence of municipal councils to
form and confirm their budgets, which is established in
Paragraph 1 of Article 121 of the Constitution, would be
violated. It has also been mentioned that the legislator enjoys
discretion to establish as to who (municipal councils or
executive bodies accountable to them) has the right to adopt
decisions on the appointment of heads of municipal
establishments and enterprises, and on the supervision of these
establishments and enterprises.
Therefore, one is to hold that the formula "exclusive
constitutional competence of municipal councils" of the
statement "under the Constitution, it is not permitted to
establish the legal regulation which would create legal
preconditions for executive bodies accountable to municipal
councils to interfere with the exclusive constitutional
competence of municipal councils" of Item 21.4.1 of Chapter II
of the reasoning part of the Ruling also includes the
competence of municipal councils to adopt decisions linked with
the establishment of municipal establishments and enterprises.
This formula does not include the competence of municipal
councils to adopt decisions linked with the appointment of
heads of municipal establishments and enterprises, and with
supervision of these establishments and enterprises.
It has been held in this Decision of the Constitutional
Court that the legislator, when he establishes, by means of the
law, as to who (municipal councils or the executive bodies
accountable to them) has the right to adopt decisions on the
establishing of municipal establishments and enterprises, the
appointment of their heads, and supervision of these
establishments and enterprises, is bound by the constitutional
requirements mentioned in this Decision of the Constitutional
Court: the decisions on the questions attributed to the
exceptional constitutional competence of municipal councils can
be adopted only by municipal councils; the legislator, under
the Constitution, has powers to establish as to what decisions
on questions not attributed to the exclusive constitutional
competence of municipal councils are within the competence of
municipal councils, and which-of executive bodies, which are
accountable to the municipal councils, or other municipal
institutions; in order that municipal councils would transfer
the right to adopt decisions to the executive bodies
accountable to the municipal councils, this must be directly
indicated in the law; the said requirements cannot be
transferred to the municipal institutions which, by the law,
are not executive bodies accountable to the municipal councils.
It was also held that after the law establishes the powers of
municipal councils to adopt decisions concerning transfer of
the supervision over municipal establishments and enterprises
to the executive bodies accountable to the municipal councils,
one cannot deny the right of municipal councils to supervise
these establishments and enterprises by themselves.
4.6. Taking account of the fact that the statement "under
the Constitution, it is not permitted to establish the legal
regulation which would create legal preconditions for executive
bodies accountable to municipal councils to interfere with the
exclusive constitutional competence of municipal councils" of
Item 21.4.1 of Chapter II of the reasoning part of the
Constitutional Court ruling of 24 December 2002 is inseparably
related with the statement "the executive bodies accountable to
municipal councils do not have the right to adopt decisions
which are not grounded on <...> decisions of <...> municipal
councils, also such which, by their legal power, would compete
with those passed by the municipal councils" of Item 21.4 of
Chapter II of the reasoning part of the Ruling, also of the
arguments on the grounds of which the aforesaid statement of
Item 21.4 of Chapter II of the reasoning part of the Ruling is
construed in this Decision of the Constitutional Court, one is
to hold that the statement "under the Constitution, it is not
permitted to establish the legal regulation which would create
legal preconditions for executive bodies accountable to
municipal councils to interfere with the exclusive
constitutional competence of municipal councils" of Item 21.4.1
of Chapter II of the reasoning part of the Ruling means that
decisions concerning the issues attributed to the exclusive
constitutional competence of municipal councils may be adopted
only by municipal councils, but not by executive bodies
accountable to them, nor any other municipal institutions.
5. The member of the Seimas P. Papovas requests to
construe the provision "<...> the establishment, by law, of the
functions and competence of the executive bodies accountable to
municipal councils is left to be done by the Seimas. However
<...> the principles of accountability of executive bodies to
the representation and of supremacy of municipal councils in
regard to the executive bodies which are accountable to them,
both of which are established in the Constitution, imply that
the municipal councils have the powers to control the executive
bodies which are established by and accountable to them. Under
the Constitution, the right of self-government is implemented
through municipal councils, thus, all decisions adopted by the
executive bodies accountable to municipal councils on the
issues assigned to the competence of municipalities are
subordinated to decisions of corresponding municipal councils"
of the Ruling (Item 21.4.2 of Chapter II of the reasoning part
of the Ruling).
5.1. It is clear from the petition that it is requested to
construe whether the statements "the establishment, by law, of
the functions and competence of the executive bodies
accountable to municipal councils is left to be done by the
Seimas. <...> all decisions adopted by the executive bodies
accountable to municipal councils on the issues assigned to the
competence of municipalities are subordinated to decisions of
corresponding municipal councils" of Item 21.4.2 of Chapter II
of the reasoning part of the Ruling mean that municipal
councils may transfer the right to municipal executive
institutions to establish other establishments, to appoint
heads of these establishments, to conduct supervision of their
activities etc., and whether municipal executive institutions
(directors of administrations) may transfer their powers or
part thereof to deputy directors, other employees of
administrations.
The Constitutional Court will construe only the said
statements of Item 21.4.2 of Chapter II of the reasoning part
of the Constitutional Court ruling of 24 December 2002.
5.2. It needs to be noted that under Paragraph 4 of
Article 119 of the Constitution, for the direct implementation
of the laws of the Republic of Lithuania, the decisions of the
Government and the municipal council, the municipal council
shall establish executive bodies accountable to it.
It also needs to be noted that, under Paragraph 2 of
Article 120 of the Constitution, municipalities shall act
freely and independently within their competence, which shall
be established by the Constitution and laws, while under
Paragraph 3 of Article 119 of the Constitution, the procedure
for the organisation and activities of self-government
institutions shall be established by law.
It was held in the Constitutional Court ruling of 24
December 2002 that the Constitution provides for two types of
municipal institutions: municipal councils (representative
institutions) and the executive bodies accountable to them
(executive institutions), and that in the cases established in
the Constitution and laws, authoritative empowerments are
granted to the municipal representative and executive
institutions. It was also held in the Ruling that the executive
bodies which are accountable to them, and which are inseparable
part of the self-government mechanism, also that both the
municipal representative institutions which are provided for in
the Constitution and the municipal executive institutions are
responsible within their competence for the direct
implementation of laws, Government and municipal decisions.
It was held in the Constitutional Court ruling of 24
December 2002 and in this Decision of the Constitutional Court
that the establishment, by law, of the functions and competence
of the executive bodies accountable to municipal councils is
left to be done by the Seimas. It was also held in the
Constitutional Court ruling of 24 December 2002 that the
Constitution does not establish any types of executive bodies
(collegial, single-person bodies), which are accountable to
municipal councils, nor the procedure of their formation, their
names, and interrelations; their functions and competence are
established only in general terms; that when regulating the
formation, functions and competence of the executive bodies
accountable to municipal councils by laws, one must pay heed to
the principles of local self-government, which are established
in the Constitution: the representative democracy,
accountability of executive bodies to the representation, the
supremacy of municipal councils in respect to the executive
bodies which are accountable to them, etc.; that the legislator
enjoys the discretion to establish by law as to the procedure,
whether by election or in other fashion, the said executive
bodies are formed, also, which of the said bodies are collegial
and which are single-person, also, the type of their
interrelations; that the legislator also enjoys the discretion
to establish by law the structure of collegial executive bodies
and the number of their members, or to leave it, by law, to be
done by municipal councils.
It has also been held in this Decision of the
Constitutional Court that on the issues whereby the competence
of municipal councils is not expressis verbis established in
the Constitution (is not exceptional constitutional competence
of municipal councils), the legislator, under the Constitution,
enjoys powers to establish as to the adoption of which
decisions is attributable to the competence of municipal
councils, and of which-to the competence of the executive
bodies accountable to municipal councils or other municipal
institutions; that in cases when the laws provide that certain
decisions are adopted by municipal councils, the municipal
councils may transfer this right to adopt such decisions
neither to the executive bodies accountable to the municipal
councils, nor other municipal institutions; that the
legislator, under the Constitution, may also establish, by
means of the law, such legal regulation under which certain
decisions are adopted by municipal councils, but that they may
transfer the right to adopt such decisions to the executive
bodies accountable to the municipal councils; however, in such
cases the powers of municipal councils to transfer the right to
adopt certain decisions to the executive bodies accountable to
the municipal councils must be established expressis verbis in
the law and the said powers cannot be transferred to municipal
institutions that, according to the law, are not executive
bodies accountable to the municipal councils; that still in
other cases the legislator may, by means of the law, directly
establish which decisions are adopted by municipal councils,
and which-by executive bodies accountable to the municipal
councils.
It must be emphasised that the legislator, while
establishing the competence of municipal councils and that of
executive bodies accountable to the latter, must pay heed to
the constitutional imperatives whereby executive bodies
accountable to municipal councils are formed by the municipal
councils themselves, and that the municipal councils form
executive bodies accountable to the latter under the law. As
mentioned, under the Constitution, it is not permitted to
establish any such legal regulation whereby executive bodies
accountable to municipal councils would impose their will on
the municipal councils, or that the powers of the executive
bodies would dominate over those of the municipal councils, or
that the powers of the municipal councils would be restricted
by those of the executive bodies established by them and
accountable to them. It has also been mentioned that, under the
Constitution, the executive bodies accountable to the municipal
councils cannot replace, or subordinate the municipal councils
to them, that it is not permitted to establish any such legal
regulation under which executive bodies accountable to
municipal councils are equalled to the municipal councils that
have formed them, or when municipal councils would lose an
opportunity to control the executive bodies accountable to
them.
Thus, according to the Constitution, executive bodies
formed and accountable to municipal councils do not enjoy the
right to transfer, by themselves, the powers established to
them to other entities which are not executive bodies formed
and accountable to municipal councils, for this would mean that
these powers would be taken not by entities formed by the
municipal councils, but by other entities (bodies,
institutions, units, officials) formed by the executive bodies
themselves, which are not in line with the constitutional
concept of executive bodies formed by and accountable to
municipal councils. Thus preconditions would be created to
violate also the constitutional principle of accountability of
executive bodies to the representation.
This does not mean that the law cannot directly establish
the powers of individual officials of executive bodies, or that
the law cannot establish that municipal councils themselves
establish, under the law, certain powers of certain officials
of executive bodies. Also, the Constitution does not prohibit
to establish, by means of the law, a system of executive bodies
formed by municipal councils and accountable to them, in which
it might be possible for certain executive bodies formed by
municipal councils and accountable to them to transfer, under
the law, their powers to other executive bodies formed by
municipal councils and accountable to them. However, it needs
to be noted that in all cases one must not deny the right of
municipal councils to control all executive bodies formed by
and accountable to municipal councils, nor the accountability
of the executive bodies to the representation for their
decisions or those of their officials.
5.3. Taking account of the arguments set forth, one is to
hold that the statements "the establishment, by law, of the
functions and competence of the executive bodies accountable to
municipal councils is left to be done by the Seimas. <...> all
decisions adopted by the executive bodies accountable to
municipal councils on the issues assigned to the competence of
municipalities are subordinated to decisions of corresponding
municipal councils" of Item 21.4.2 of Chapter II of the
reasoning part of the Constitutional Court ruling of 24
December 2002 inter alia mean that the legislator, while paying
heed to the principles of local self-government entrenched in
the Constitution, enjoys discretion to legislatively establish
the interrelations, functions and powers of executive bodies
accountable to municipal councils; the legislator, while paying
heed to the principles of local self-government entrenched in
the Constitution, enjoys discretion to legislatively establish
the structure and the number of members of executive bodies
accountable to municipal councils, or to leave it, by the law,
to be done by municipal councils; that, under the Constitution,
it is not permitted to establish any such legal regulation
whereby executive bodies accountable to municipal councils
would impose their will on the municipal councils, or that the
powers of the executive bodies would dominate over those of the
municipal councils, or that or the powers of the municipal
councils would be restricted by those of the executive bodies
established by them and accountable to them; that the executive
bodies accountable to the municipal councils cannot replace, or
subordinate the municipal councils to them; that it is not
permitted to establish any such legal regulation under which
executive bodies accountable to municipal councils are equalled
to the municipal councils that have formed them, or when
municipal councils would lose an opportunity to control the
executive bodies accountable to them; that executive bodies
formed and accountable to municipal councils do not enjoy the
right to transfer, by themselves, the powers established to
them to other entities which are not executive bodies formed
and accountable to municipal councils.
6. The member of the Seimas P. Papovas requests to
construe the provision "As decisions adopted by municipal
councils are inseparable from the execution of these decisions,
then the municipal representative institutions as well as the
municipal executive institutions, both of which are provided
for in the Constitution, according to their competence are
responsible for the implementation of the right of
self-government and for the direct implementation of the laws,
the decisions of the Government and the municipal council" of
the Ruling (Item 21.5 of Chapter II of the reasoning part of
the Ruling).
6.1. It is clear from the petition that one requests to
construe whether the above-mentioned provision of Item 21.5 of
Chapter II of the reasoning part of the Ruling means that
municipal councils may transfer the right to municipal
executive institutions to transfer the right to establish other
establishments (i.e. municipal establishments), to appoint
heads of these establishments, to execute supervision of their
activities etc., whether municipal executive institutions
(directors of administrations) may transfer their powers (part
thereof) to their deputies, or other employees of the
administrations.
6.2. The fact whether municipal councils may transfer the
right to municipal executive institutions to transfer the right
to establish other establishments (i.e. municipal
establishments), to appoint heads of these establishments, to
execute supervision of their activities etc., whether municipal
executive institutions (directors of administrations) may
transfer their powers (part thereof) to their deputies, or
other employees of the administrations, has been discussed in
the course of the construction of the other provisions of
Chapter II of the reasoning part of the Constitutional Court
ruling of 24 December 2002. The member of the Seimas P. Papovas
does not request to construe the said provision of Item 21.5 of
Chapter II of the reasoning part of the Constitutional Court
ruling of 24 December 2002 in different aspects.
Therefore, the Constitutional Court will not construe the
provision "As decisions adopted by municipal councils are
inseparable from the execution of these decisions, then the
municipal representative institutions as well as the municipal
executive institutions, both of which are provided for in the
Constitution, according to their competence are responsible for
the implementation of the right of self-government and for the
direct implementation of the laws, the decisions of the
Government and the municipal council" of Item 21.5 of Chapter
II of the reasoning part of the Constitutional Court ruling of
24 December 2002.
7. The member of the Seimas P. Papovas requests to
construe the provision "Municipal councils, while implementing
the right of self-government guaranteed by the Constitution,
may also establish other municipal institutions and other
municipal establishments which have authoritative empowerments"
(Item 21.6 of Chapter II of the reasoning part of the Ruling).
7.1. It is clear from the petition that one requests to
construe whether the above-mentioned provision of Item 21.6 of
Chapter II of the reasoning part of the Ruling means that
municipal councils may transfer the right to municipal
executive institutions to transfer the right to establish other
establishments (i.e. municipal establishments), to appoint
heads of these establishments, to execute supervision of their
activities etc., whether municipal executive institutions
(directors of administrations) may transfer their powers (part
thereof) to their deputies, or other employees of the
administrations.
7.2. The fact whether municipal councils may transfer the
right to municipal executive institutions to transfer the right
to establish other establishments (i.e. municipal
establishments), to appoint heads of these establishments, to
execute supervision of their activities etc., whether municipal
executive institutions (directors of administrations) may
transfer their powers (part thereof) to their deputies, or
other employees of the administrations, has been discussed in
the course of the construction of the other provisions of
Chapter II of the reasoning part of the Constitutional Court
ruling of 24 December 2002. The member of the Seimas P. Papovas
does not request to construe the said provision of Item 21.6 of
Chapter II of the reasoning part of the Constitutional Court
ruling of 24 December 2002 in different aspects.
Therefore, the Constitutional Court will not construe the
provision "Municipal councils, while implementing the right of
self-government guaranteed by the Constitution, may also
establish other municipal institutions and other municipal
establishments which have authoritative empowerments" of Item
21.6 of Chapter II of the reasoning part of the Constitutional
Court ruling of 24 December 2002.
Conforming to Article 61 of the Law on the Constitutional
Court of the Republic of Lithuania, the Constitutional Court
has adopted the following
decision:
To construe that the following statements of the 24
December 2004 Constitutional Court Ruling "On the compliance of
Paragraph 3 of Article 3 (wording of 12 October 2000),
Paragraph 4 of Article 3 (wording of 12 October 2000), Item 2
of Paragraph 1 of Article 5 (wording of 12 October 2000),
Paragraph 1 of Article 18 (wording of 12 October 2000), Items
2, 3, 4, 8, and 15 of Paragraph 1 of Article 19 (wording of 12
October 2000), Items 1, 5, 7, 9, 12, 15, 16, 17, and 18 of
Paragraph 1 of Article 21 (wording of 12 October 2000), Item 6
of the same Paragraph (wordings of 12 October 2000 and 25
September 2001), and Item 14 of the same Paragraph (wordings of
12 October 2000 and 8 November 2001) of the Republic of
Lithuania Law on Local Self-government, as well as the Republic
of Lithuania Constitutional Law on the Procedure of the
Application of the Law on the Alteration of Article 119 of the
Constitution, and the Republic of Lithuania Law on the Entering
into the List of Constitutional Laws of the Constitutional Law
on the Procedure of the Application of the Law on the
Alteration of Article 119 of the Constitution, with the
Constitution of the Republic of Lithuania":
1) the statement "the state officials who <...> enjoy the
powers to control or supervise the activities of municipal
councils, may not be members of municipal councils" of Item
20.4.1 of Chapter II of the reasoning part inter alia means
that the state officials (servants and other persons
irrespective of how they are referred to in laws) who, under
the Constitution and laws, have the right to adopt decisions
upon which depend the adoption and implementation of decisions
of municipal councils within their competence defined by the
Constitution, may not be municipal council members at the same
time; this statement does not mean that the state officials
enjoying the powers to conduct only organisational, technical
etc. control or supervision of the executive bodies accountable
to municipal councils, of municipal establishments or
enterprises cannot be municipal council members;
2) the statements "<...> the functions which exclusively
belong to municipalities are regulated by laws. Not a single
one of these functions mean that in a respective area
municipalities are absolutely independent" of Item 17.2 of
Chapter II of the reasoning part inter alia mean that the
procedure (procedures) of the implementation of the
requirements of the laws whereby municipal functions are
established, may also be established by substatutory legal acts
issued by the Government, ministries (ministers) or other state
institutions (their heads), in case this is provided for in
laws;
3) the statement "the executive bodies accountable to
municipal councils do not have the right to adopt decisions
which are not grounded on <...> decisions of <...> municipal
councils, also such which, by their legal power, would compete
with those passed by the municipal councils" of Item 21.4 of
Chapter II of the reasoning part inter alia means that only
municipal councils can adopt decisions on questions attributed
to the exclusive constitutional competence of municipal
councils, but not the executive bodies accountable to them or
other municipal institutions; under the Constitution, the
legislator enjoys the powers to establish as to what decisions
on questions not attributed to the exclusive constitutional
competence of municipal councils are within the competence of
municipal councils, and which decisions may be adopted by
executive bodies accountable to municipal councils or other
municipal institutions; the fact that municipal councils can
transfer the right to adopt decisions to executive bodies
accountable to the municipal councils must be directly
indicated in the law; the said powers cannot be transferred to
the municipal institutions which, under the law, are not
executive bodies accountable to the municipal councils;
4) the statement "under the Constitution, it is not
permitted to establish the legal regulation which would create
legal preconditions for executive bodies accountable to
municipal councils to interfere with the exclusive
constitutional competence of municipal councils" of Item 21.4.1
of Chapter II of the reasoning part means that decisions
concerning the issues attributed to the exclusive
constitutional competence of municipal councils may be adopted
only by municipal councils, but not by executive bodies
accountable to them, nor any other municipal institutions;
5) the statements "the establishment, by law, of the
functions and competence of the executive bodies accountable to
municipal councils is left to be done by the Seimas. <...> all
decisions adopted by the executive bodies accountable to
municipal councils on the issues assigned to the competence of
municipalities are subordinated to decisions of corresponding
municipal councils" of Item 21.4.2 of Chapter II of the
reasoning part inter alia mean that the legislator, while
paying heed to the principles of local self-government
entrenched in the Constitution, enjoys discretion to
legislatively establish the interrelations, functions and
powers of executive bodies accountable to municipal councils;
the legislator, while paying heed to the principles of local
self-government entrenched in the Constitution, enjoys
discretion to legislatively establish the structure and the
number of members of executive bodies accountable to municipal
councils, or to leave it, by the law, to be done by municipal
councils; that, under the Constitution, it is not permitted to
establish any such legal regulation whereby executive bodies
accountable to municipal councils would impose their will on
the municipal councils, or that the powers of the executive
bodies would dominate over those of the municipal councils, or
that or the powers of the municipal councils would be
restricted by those of the executive bodies established by them
and accountable to them; that the executive bodies accountable
to the municipal councils cannot replace, or subordinate the
municipal councils to them; that it is not permitted to
establish any such legal regulation under which executive
bodies accountable to municipal councils are equalled to the
municipal councils that have formed them, or when municipal
councils would lose an opportunity to control the executive
bodies accountable to them; that executive bodies formed and
accountable to municipal councils do not enjoy the right to
transfer, by themselves, the powers established to them to
other entities which are not executive bodies formed and
accountable to municipal councils.
Justices of the Constitutional Court: Armanas Abramavičius
Egidijus Kūris
Kęstutis Lapinskas
Zenonas Namavičius
Augustinas Normantas
Jonas Prapiestis
Vytautas Sinkevičius
Stasys Stačiokas