Lietuviškai
THE CONSTITUTIONAL COURT OF THE REPUBLIC OF
LITHUANIA
DECISION
ON THE PETITION "ON THE CONSTRUCTION OF CERTAIN
PROVISIONS OF THE RULING OF 24 DECEMBER 2002" OF
THE MEMBER OF THE SEIMAS PETRAS PAPOVAS
2 July 2004
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, and Vytautas Sinkevičius,
with the secretary of the hearing-Daiva Pitrėnaitė,
pursuant to Article 28 of the Law on the Constitutional
Court of the Republic of Lithuania, in the Constitutional Court
procedural sitting considered the petition of Petras Papovas, a
member of the Seimas, who used to be the representative of the
Seimas, the petitioner, in Case No. 49/2000, to construe
certain 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" and of the 11
February 2004 Constitutional Court Decision "On the
Construction of the Constitutional Court Ruling of 24 December
2002".
The Constitutional Court
has established:
1. On 24 December 2002, the Constitutional Court adopted
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" in case No. 49/2000 (Official Gazette Valstybės
žinios, 2003, No. 19-828).
2. On 11 February 2004, the Constitutional Court adopted
the Decision "On the Construction of the Constitutional Court
Ruling of 24 December 2002" (Official Gazette Valstybės žinios,
2004, No. 24-740).
3. On 17 June 2004, at the Constitutional Court the
petition "On the Construction of Certain Provisions of the
Ruling of 24 December 2002" from the member of the Seimas P.
Papovas, who used to be the representative of the Seimas, the
petitioner, in Case No. 49/2000, was received.
The member of the Seimas P. Papovas requests that the
Constitutional Court construe the following:
1) whether the provisions of Sections 1, 2 and 3 of Item
21.4.1 of Chapter II of the reasoning part of the
Constitutional Court ruling of 24 December 2002 and the
provisions of Sections 2 and 3 of Item 3.4 of Chapter II of the
reasoning part of the Constitutional Court decision of 11
February 2004 mean that adoption of decisions on questions of
establishing of municipal establishments of teaching and
education (Paragraph 1 of Article 40 of the Constitution) and
municipal schools of general education, vocational schools and
schools of further education (Paragraph 2 of Article 41 of the
Constitution), appointment of their heads and supervision of
these establishments is within the exclusive competence of
municipal councils;
2) whether the provisions of Sections 4, 5 and 6 of Item
3.4 of Chapter II of the reasoning part of the Constitutional
Court decision of 11 February 2004 are to be applied in
adoption of decisions on questions, which are established as
municipal competence by the Constitution, concerning
establishment of corresponding educational establishments,
appointment of their heads and supervision of these
establishments.
The Constitutional Court
holds that:
1. The following was held in Sections 1, 2, and 3 of Item
21.4.1 of Chapter II of the reasoning part of the
Constitutional Court ruling of 24 December 2002:
"It has been mentioned that that the Constitution
consolidates the principle of supremacy of municipal councils
in regard to the executive bodies which are accountable to
them. Thus, under the Constitution, it is not permitted to
establish any such legal regulation whereby the decision on the
issues attributed expressis verbis by the Constitution to the
municipality would by adopted not by municipal councils but by
the executive bodies established by and accountable to them.
It needs to be noted that the competence of municipalities
is defined expressis verbis in the Constitution in Paragraph 1
of Article 40 which inter alia indicates municipal
establishments of teaching and education; Paragraph 2 of
Article 41 which inter alia indicates municipal schools of
general education, vocational schools and schools of further
education; Paragraph 2 of Article 47 which inter alia provides
that municipalities 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; Paragraph 4 of Article 119 which 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; Paragraph 1 of Article 121 which provides
that municipalities shall draft and confirm their own budget;
Paragraph 2 of Article 121 which provides that municipal
councils shall have the right to establish local levies within
the limits and in accordance with the procedure provided for by
law, and that municipal councils may provide for preferences
with respect to taxes and levies at the expense of their own
budget; Article 122 which provides that municipal councils
shall have the right to apply to court regarding the violation
of their rights.
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."
2. It needs to be noted that the member of the Seimas P.
Papovas, who used to be the representative of the Seimas, the
petitioner, in Case No. 49/2000, applied to the Constitutional
Court with the petition of 6 January 2004, requesting to
investigate inter alia the provision of Section 3 of Item
21.4.1 of Chapter II of the reasoning part of the
Constitutional Court ruling of 24 December 2002.
On 11 February 2004, the Constitutional Court adopted the
Decision "On the Construction of the Constitutional Court
Ruling of 24 December 2002", in Item 3.4 whereof it was held:
"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. In the petition of 17 June 2004, the member of the
Seimas P. Papovas quotes the provisions of Sections 2 and 3 of
Item 3.4 of the Constitutional Court Decision "On the
Construction of the Constitutional Court Ruling of 24 December
2002" of 11 February 2004 concerning establishment of municipal
establishments and enterprises, appointment of their heads as
well as the supervision of these establishments and
enterprises, and requests that the provisions of Sections 1, 2
and 3 of Item 21.4.1 of Chapter II of the reasoning part of the
Constitutional Court ruling of 24 December 2002 and Sections 2
and 3 of Item 3.4 of Chapter II of the reasoning part of the
Constitutional Court decision of 11 February 2004 be construed.
While construing the provisions of Item 21.4.1 of Chapter
II of the reasoning part of the Constitutional Court ruling of
24 December 2002, the Constitutional Court inter alia held in
Item 4.5 of Chapter II of the reasoning part of the
Constitutional Court decision of 11 February 2004 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, which was
indicated by the member of the Seimas P. Papovas, 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 needs to be noted that the member of the Seimas P.
Papovas requests that the provisions of Sections 1, 2 and 3 of
Item 21.4.1 of Chapter II of the reasoning part of the
Constitutional Court ruling of 24 December 2002 be construed
from the same aspect that they were already construed in the 11
February 2004 Constitutional Court Decision "On the
Construction of the Constitutional Court Ruling of 24 December
2002". Thus, the content of the petition of 17 June 2004 of the
member of the Seimas P. Papovas requesting to construe whether
the provisions of Sections 1, 2 and 3 of Item 21.4.1 of Chapter
II of the reasoning part of the Constitutional Court ruling of
24 December 2002 and the provisions of Sections 2 and 3 of Item
3.4 of Chapter II of the reasoning part of the Constitutional
Court decision of 11 February 2004 "mean that adoption of
decisions on questions of establishing of municipal
establishments of teaching and education (Paragraph 1 of
Article 40 of the Constitution) and municipal schools of
general education, vocational schools and schools of further
education (Paragraph 2 of Article 41 of the Constitution),
appointment of their heads and supervision of these
establishments is within the exclusive competence of municipal
councils" coincides with the content of the petition of 6
January 2004 of the member of the Seimas P. Papovas requesting
to construe certain provisions of the Constitutional Court
ruling of 24 December 2002. As mentioned, subsequent to the
petition of 6 January 2004 of the member of the Seimas P.
Papovas, the Constitutional Court decision of 11 February 2004
was adopted.
4. Taking account of the arguments set forth, the petition
of the member of the Seimas P. Papovas requesting to construe
whether the provisions of Sections 1, 2 and 3 of Item 21.4.1 of
Chapter II of the reasoning part of the Constitutional Court
ruling of 24 December 2002 and the provisions of Sections 2 and
3 of Item 3.4 of Chapter II of the reasoning part of the
Constitutional Court decision of 11 February 2004 "mean that
adoption of decisions on questions of establishing of municipal
establishments of teaching and education (Paragraph 1 of
Article 40 of the Constitution) and municipal schools of
general education, vocational schools and schools of further
education (Paragraph 2 of Article 41 of the Constitution),
appointment of their heads and supervision of these
establishments is within the exclusive competence of municipal
councils" is not to be satisfied.
5. The following was held in Sections 4, 5 and 6 of Item
3.4 of the Constitutional Court Decision "On the Construction
of the Constitutional Court Ruling of 24 December 2002" of 11
February 2004:
"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."
The member of the Seimas P. Papovas requests that the
Constitutional Court construe whether the provisions of
Sections 4, 5 and 6 of Item 3.4 of Chapter II of the reasoning
part of the Constitutional Court decision of 11 February 2004
"are to be applied in adoption of decisions on questions, which
are established as municipal competence by the Constitution,
concerning establishment of corresponding educational
establishments, appointment of their heads and supervision of
these establishments".
Thus, the member of the Seimas P. Papovas requests to
decide the issue of application of the provisions of the said
Constitutional Court decision.
Under the Constitution and laws, issues of application of
law are decided by the institution which applies a
corresponding legal act.
Taking account of the arguments set forth, the request of
the member of the Seimas P. Papovas that the provisions of
Sections 4, 5 and 6 of Item 3.4 of Chapter II of the reasoning
part of the Constitutional Court decision of 11 February 2004
"are to be applied in adoption of decisions on questions, which
are established as municipal competence by the Constitution,
concerning establishment of corresponding educational
establishments, appointment of their heads and supervisions of
these establishments" be construed, is not to be satisfied.
Conforming to Article 102 of the Constitution of the
Republic of Lithuania and Articles 1, 28 and 61 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 refuse to construe the 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" and the provisions
of the 11 February 2004 Constitutional Court Decision "On the
Construction of the Constitutional Court Ruling of 24 December
2002" subsequent to the Petition "On the Construction of
Certain Provisions of the Ruling of 24 December 2002" of the
member of the Seimas Petras Papovas.
Justices of the Constitutional Court: Armanas Abramavičius
Egidijus Jarašiūnas
Egidijus Kūris
Kęstutis Lapinskas
Zenonas Namavičius
Augustinas Normantas
Jonas Prapiestis
Vytautas Sinkevičius