Lietuviškai
Case No. 4/02
THE CONSTITUTIONAL COURT OF THE REPUBLIC OF
LITHUANIA
RULING
ON THE COMPLIANCE OF ITEM 2 OF PARAGRAPH 1 OF
ARTICLE 30 OF THE CUSTOMS CODE OF THE REPUBLIC OF
LITHUANIA WITH THE CONSTITUTION OF THE REPUBLIC OF
LITHUANIA
27 January 2005
Vilnius
The Constitutional Court of the Republic of Lithuania,
composed of the Justices of the Constitutional Court Armanas
Abramavičius, Egidijus Jarašiūnas, Egidijus Kūris, Kęstutis
Lapinskas, Zenonas Namavičius, Augustinas Normantas, Jonas
Prapiestis, Vytautas Sinkevičius, and Stasys Stačiokas,
with the secretary of the hearing-Daiva Pitrėnaitė,
in the presence of:
the representative of the Seimas of the Republic of
Lithuania, the party concerned, who was Vilija Račkauskienė, a
senior specialist at the Legal Department of the Office of the
Seimas,
pursuant to Articles 102 and 105 of the Constitution of
the Republic of Lithuania and Article 1 of the Law on the
Constitutional Court of the Republic of Lithuania, on 26
January 2005 in its public hearing heard Case No. 4/02 which
originated in a petition of the Vilnius Regional Administrative
Court, the petitioner, requesting to investigate as to whether
Item 2 of Paragraph 1 of Article 30 of the Customs Code of the
Republic of Lithuania is not in conflict with Paragraphs 1 and
4 of Article 48 of the Constitution of the Republic of
Lithuania, and the constitutional principle of a state under
the rule of law.
The Constitutional Court
has established:
I
1. The Vilnius Regional Administrative Court, the
petitioner, was investigating an administrative case. By its
ruling the court suspended the investigation of the case and
applied to the Constitutional Court with the petition
requesting to investigate as to whether Item 2 of Paragraph 1
of Article 30 of the Customs Code (Official Gazette Valstybės
žinios, 1996, No. 52-1239) is not in conflict with Paragraphs 1
and 4 of Article 48 of the Constitution and the constitutional
principle of a state under the rule of law.
2. According to Item 2 of Paragraph 1 of Article 30 of the
Customs Code, the contractual value is not considered to be the
customs value of imported goods, if the sales of the goods or
their price was impacted by certain conditions or
circumstances, where one cannot establish the impact upon the
price of contract on the sales of goods.
3. The petitioner's doubt concerning the compliance of
Item 2 of Paragraph 1 of Article 30 of the Customs Code with
the Constitution is based on the fact that, in his opinion, a
person, while being engaged in economic activity and while
concluding contracts, has no guarantee that in the course of
establishment of the customs value of imported goods and not
applying the method of contractual value, the contract
concluded by him with other entities will not be revised,
although such a contract is not contested or annulled under
established procedure. The petitioner had doubts as to whether
the individual freedom of economic activity and initiative
entrenched in Paragraph 1 of Article 46 of the Constitution,
the protection of freedom of fair competition entrenched in
Paragraph 4 of the said article, and the constitutional
principle of a state under the rule of law are not violated by
the legal regulation established in Item 2 of Paragraph 1 of
Article 30 of the Customs Code.
II
In the course of the preparation of the case for the
Constitutional Court hearing, written explanations of V.
Račkauskienė, the representative of the Seimas, the party
concerned, were received.
1. V. Račkauskienė noted that the list of cases where the
method of contractual value is not applied, which is
consolidated in the Customs Code, is final. One of these cases
is provided for in Item 2 of Paragraph 1 of Article 30 of the
Customs Code. According to it, the method of contractual value
is not applied when the sales of goods or their price was
impacted by certain conditions or circumstances, where one
cannot establish the impact upon the price of contract on the
sales of goods. By the disputed legal regulation one seeks to
ensure the common interest. By this legal regulation no persons
are discriminated, none of them is granted privileges, no
economic entity or group of persons is granted exceptional
rights to act in a certain area, the freedom and initiative of
economic activity is not restricted, but conditions for fair
competition are created.
In the opinion of the representative of the party
concerned, Item 2 of Paragraph 1 of Article 30 of the Customs
Code is not in conflict with Paragraphs 1 and 4 of Article 48
of the Constitution and the constitutional principle of a state
under the rule of law.
2. V. Račkauskienė also drew attention to the fact that
the legal regulation, which is basically identical to the one
established in Item 2 of Paragraph 1 of Article 30 of the
Customs Code, is entrenched also in legal acts of the World
Trade Organisation and the European Union.
III
In the course of preparation of the case for the
Constitutional Court hearing written explanations were received
from D. Grybauskaitė, the Minister of Finance of the Republic
of Lithuania, P. Čėsna, the Minister of Economy of the Republic
of Lithuania, P. Koverovas, the State Secretary to the Ministry
of Justice of the Republic of Lithuania, V. Vadapalas, the
Director General of the European Law Department under the
Government of the Republic of Lithuania, R. Klevečka, the
Director General of the Customs Department under the Ministry
of Finance of the Republic of Lithuania, as well as Assoc.
Prof. A. Laurinavičius, the Head of Customs Activity Department
at the Police Faculty of the Law University of Lithuania.
IV
At the Constitutional Court hearing, the representative of
the Seimas, the party concerned, who was V. Račkauskienė,
virtually reiterated the arguments set forth in her written
explanations.
The Constitutional Court
holds that:
I
1. On 18 April 1996, the Seimas adopted the Customs Code
in Article 236 whereof it established that the terms and
procedure of coming into effect of this code and its
implementation are set down in the Law on Implementation of the
Customs Code.
On 4 June 1996, the Seimas adopted the Republic of
Lithuania Law on Implementation of the Customs Code. It was
established in Article 1 of this law that the Customs Code
shall become effective as from 1 January 1998. The Customs Code
has been amended and supplemented more than once.
2. The Vilnius Regional Administrative Court, the
petitioner, had doubts whether Item 2 of Paragraph 1 of Article
30 of the Customs Code was not in conflict with Paragraphs 1
and 4 of Article 46 of the Constitution and the constitutional
principle of a state under the rule of law.
3. On 27 April 2004, the Seimas adopted the Republic of
Lithuania Law on Recognising the Customs Code and Laws Amending
It As No Longer Effective. By Article 1 of this law one inter
alia recognised the Customs Code as no longer effective, and in
Article 2 one established that this law shall become effective
as from 1 May 2004. After the Law on Recognising the Customs
Code and Laws Amending It As No Longer Effective came into
force, the Customs Code became no longer effective, thus Item 2
of Paragraph 1 of Article 30 thereof became no longer effective
as well.
The recognition of the Customs Code as no longer effective
is related to the membership of the Republic of Lithuania in
the European Union; the Republic of Lithuania became a member
of the European Union on 1 May 2004.
4. On 27 April 2004, the Seimas adopted the Republic of
Lithuania Law on Customs. It is established in Paragraph 1 of
Article 110 of the Law on Customs that this law (save certain
articles or parts thereof) becomes effective as from 1 May
2004. It is established in Paragraph 2 of Article 1 of the Law
on Customs that by this law the legal acts of the European
Union specified in the annex to the law shall be implemented.
5. According to Paragraph 4 of Article 69 of the Law on
the Constitutional Court the annulment of the disputed legal
act shall be grounds to adopt a decision to dismiss the
instituted legal proceedings. In its rulings the Constitutional
Court has held more than once that according to the
Constitution, in the cases where the Constitutional Court is
addressed by a court which investigates the case and which has
doubts concerning the compliance of the applicable in a
particular case law with the Constitution or laws, the
Constitutional Court has a duty to consider the petition of the
court irrespective of the fact whether the disputed law or
other legal act is in force or not.
II
On the compliance of Item 2 of Paragraph 1 of Article 30
of the Customs Code with Paragraphs 1 and 4 of Article 46 of
the Constitution and the constitutional principle of a state
under the rule of law.
1. It was established in Paragraph 1 of Article 30
"Application of the Method of Contractual Value" of the Customs
Code:
"It is considered that the customs value of imported goods
shall be contractual value, i.e. the sum paid or due to be paid
for the goods sold in order to export them to the territory of
custom duties of the Republic of Lithuania, which shall, if
needed, be specified in more detail in accordance with
provisions of Articles 33 and 34 of this Code. The contractual
value shall not be considered to be customs value, where: <...>
2) certain conditions or circumstances had impact upon the
sales of goods or price thereof, where one cannot establish the
impact upon the price of contract on the sales of goods <...>"
2. In Paragraph 1 of Article 30 of the Customs Code the
procedure of calculation of customs value of imported goods was
consolidated by applying the method of contractual value as the
major method of calculation of customs value. In this paragraph
one established also that, if needed, the value may be
specified in more detail in accordance with the rules
established in Articles 33 and 34 of the Customs Code.
Moreover, one established on which basis the contractual value
was not considered to be customs value and when other methods
provided for in Articles 31 and 32 of the Customs Code must be
applied in order to calculate customs value of goods.
One of the cases where the contractual value is not
considered to be customs value of goods is set down in the
disputed by the petitioner Item 2 of Paragraph 1 of Article 30
of the Customs Code: "certain conditions or circumstances had
impact upon the sales of goods or price thereof, where one
cannot establish the impact upon the price of contract on the
sales of goods".
3. When deciding whether the disputed item was not in
conflict with the Constitution it should be noted that there
may exist cases where the declared customs value of goods
differs from the customs value of similar or identical goods,
and the importer fails to specify reasons of origin of such
difference. In such cases it is important that the customs
officials establish as to what conditions or circumstances had
impact upon the value of the sales contract and what particular
impact it was. If it is impossible to establish the impact of
such circumstances or conditions upon the sales contract, other
methods of calculation of the customs value of imported goods
are applied. Application of methods other than the method of
contractual value when establishing the customs value of
imported goods does not mean that the contract concluded is
disputed, annulled, revised, etc.
4. It is to be noted that the objective of the disputed
legal regulation is to create legal prerequisites for correct
calculation of customs value of imported goods and customs
duty, as well as to ensure that persons perform their
constitutional duty to pay taxes. Item 2 of Paragraph 1 of
Article 30 of the Customs Code had to be applied in all cases,
where it was impossible to establish as to what impact was made
upon the price of the sales contract by certain conditions or
circumstances. In this regard all persons are treated equally.
It should also be noted that decisions of the customs
office (its officials), including decisions concerning
application or non-application of the methods provided for in
the Customs Code in the course of calculation of customs value
of imported goods may be appealed against under procedure
established by the law, they may be appealed against in court
as well.
5. Thus, the disputed legal regulation did not violate the
freedom of economic activity and initiative entrenched in
Paragraph 1 of Article 46 of the Constitution, the protection
of freedom of fair competition entrenched in Paragraph 4 of the
said article, as well as the constitutional principle of a
state under the rule of law.
6. It should be noted that the legal regulation
consolidated in Item 2 of Paragraph 1 of Article 30 of the
Customs Code, which was previously in force, is basically
identical to the one entrenched in the legal act of the
European Union-the Community Customs Code-established on 12
October 1992 by the Council Regulation (EEC) No. 2913/92,
international legal acts (Agreement on Implementation of
Article VII of the General Agreement on Tariffs and Trade of
1994), as well as laws of other countries.
Conforming to Articles 102 and 105 of the Constitution of
the Republic of Lithuania and Articles 1, 53, 54, 55, and 56 of
the Law on the Constitutional Court of the Republic of
Lithuania, the Constitutional Court of the Republic of
Lithuania has passed the following
ruling:
To recognise that Item 2 of Paragraph 1 of Article 30 of
the Customs Code of the Republic of Lithuania was not in
conflict with the Constitution of the Republic of Lithuania.
This ruling of the Constitutional Court is final and not
subject to appeal.
The ruling is promulgated in the name of the Republic of
Lithuania.
Justices of the Constitutional Court: Armanas Abramavičius
Egidijus Jarašiūnas
Egidijus Kūris
Kęstutis Lapinskas
Zenonas Namavičius
Augustinas Normantas
Jonas Prapiestis
Vytautas Sinkevičius
Stasys Stačiokas