Lietuviškai
THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA
DECISION
ON ACCEPTING THE PETITION OF A PETITIONER
15 December 2006
Vilnius
The Constitutional Court of the Republic of Lithuania,
composed of the Justices of the Constitutional Court Armanas
Abramavičius, Toma Birmontienė, Egidijus Kūris, Kęstutis
Lapinskas, Zenonas Namavičius, Ramutė Ruškytė, Vytautas
Sinkevičius, Stasys Stačiokas, and Romualdas Kęstutis Urbaitis,
with the secretary of the hearingDaiva Pitrėnaitė,
in the procedural sitting of the Constitutional Court
considered the petition set forth in Article 2 and Annex 2 of the
23 November 2006 Resolution No. X-922 "On the Conclusions of the
Seimas Provisional Investigation Commission for Investigation
into the Privatization of the Joint-stock Company 'Alita'" of the
Seimas of the Republic of Lithuania, the petitioner, requesting
to investigate whether Government of the Republic of Lithuania
Resolution No. 1698 "On the Consent to the Draft Agreement on
Purchase and Sale of the Shares of the Joint-Stock Company '
Alita' which Belong to the State by Right of Ownership" of 24
December 2003 is not in conflict with the principle of a state
under the rule of law which is entrenched in the Constitution of
the Republic of Lithuania and with Articles 3 and 16 of the
Republic of Lithuania Law on Privatisation of State-owned and
Municipal Property.
The Constitutional Court
has established:
I
1. On 23 November 2006, the Seimas, the petitioner,
adopted Resolution No. X-922 "On the Conclusions of the Seimas
Provisional Investigation Commission for Investigation into the
Privatization of the Joint-stock Company 'Alita'" (hereinafter
also referred to as the Seimas resolution of 23 November 2006),
in Article 2 and Annex 2 whereof a petition is set forth to the
Constitutional Court to investigate whether Government Resolution
No. 1698 "On the Consent to the Draft Agreement on Purchase and
Sale of the Shares of the Joint-Stock Company 'Alita' which
Belong to the State by Right of Ownership" of 24 December 2003
(hereinafter also referred to as the Government resolution of 24
December 2003) is not in conflict with the principle of a state
under the rule of law which is entrenched in the Constitution and
with Articles 3 and 16 of the Law on Privatisation of State-owned
and Municipal Property.
This petition of the Seimas, the petitioner, was received
at the Constitutional Court on 12 December 2006.
The Constitutional Court
holds that:
I
1. The petition set forth in the Seimas resolution of 23
November 2006 requesting to investigate whether the Government
resolution of 24 December 2003 is not in conflict with the
principle of a state under the rule of law which is entrenched in
the Constitution and with Articles 3 and 16 of the Law on
Privatisation of State-owned and Municipal Property was received
at the Constitutional Court at the moment when the Constitutional
Court was retired to the deliberation room to adopt the ruling in
constitutional justice case No. 30/03 subsequent to the petition
of a group of Members of the Seimas, the petitioner, requesting
to investigate whether:
- Paragraphs 1, 3, and 4 of Article 6, Paragraph 1 of
Article 15 of the Republic of Lithuania Law on the Lithuanian
National Radio and Television the to the extent that it provides
that the Lithuanian National Radio and Television are funded
from the receipts obtained for advertising and from commercial
activity, Paragraph 2 of Article 15 of the same law to the
extent that it provides that the National Radio and
Television of Lithuania shall implement commercial activity
independently, are not in conflict with Paragraphs 2, 3, and
4 of Article 46 of the Constitution.
- Paragraph 5 of Article 5 of the Republic of Lithuania
Law on the Lithuanian National Radio and Television to the extent
that it provides that the Lithuanian National Radio and
Television shall have a priority right to newly co-ordinated
electronic communication channels (radio frequencies), Item 3 of
Paragraph 1 of Article 10 of the same law, Paragraph 4 of Article
31 of the Republic of Lithuania Law on Provision of Information
to the Public to the extent that it provides that channels (radio
frequencies) for broadcasting programmes of the Lithuanian
National Radio and Television are assigned without a tender, are
not in conflict with Paragraph 1 of Article 29 and Paragraphs 2,
3, and 4 of Article 46 of the Constitution.
2. Under Paragraph 4 of Article 44 of the Law on the
Constitutional Court, the Court shall not have the right to
consider other cases until the consideration of the case at issue
is finished or its deliberation is suspended except for adoption
of procedural decisions regarding designation of consideration
for other case in a Court hearing or prolonging the term for the
consideration of the case.
Under Paragraph 1 of Article 26 of the Law on the
Constitutional Court, in cases when the Constitutional Court
receives submission by the President of the Republic to
investigate whether an act of the Government is in compliance
with the Constitution and the laws, or when it receives a
resolution of the Seimas wherein it is requested to investigate
whether a law of the Republic of Lithuania or other act adopted
by the Seimas is in compliance with the Constitution, whether a
decree of the President of the Republic, an act of the Government
is in compliance with the Constitution and laws, the preliminary
investigation of that material must be carried out within 3 days,
and the issue of whether to accept the petition for consideration
in the Constitutional Court must be settled during its
organisational sitting.
While construing Paragraph 4 of Article 44 of the Law on
the Constitutional Court together with Paragraph 1 of Article 26
of the Law on the Constitutional Court, it needs to be held that
the prohibitions for the Constitutional Court to adopt other than
the procedural decisions specified in Paragraph 4 of Article 44
of the Law on the Constitutional Court are not applied to the
cases when a submission by the President of the Republic or a
resolution of the Seimas, which is specified in Paragraph 1 of
Article 26 of the Law on the Constitutional Court, is received at
the Constitutional Court. Thus, in such cases, under the Law on
the Constitutional Court, the Constitutional Court shall have the
powers to decide in a procedural sitting of the Constitutional
Court whether to accept the petition requesting to conduct
investigation in the Constitutional Court also without postponing
the constitutional justice case, the investigation of which is
not over at that time.
II
1. Article 2 of the Seimas resolution of 23 November 2006
provides:
"To apply to the Constitutional Court with a petition
requesting to investigate whether Government of the Republic of
Lithuania Resolution No. 1698 'On the Consent to the Draft
Agreement on Purchase and Sale of the Shares of the Joint-Stock
Company 'Alita' which Belong to the State by Right of Ownership'
of 24 December 2003 is not in conflict with the principle of a
state under the rule of law which is entrenched in the
Constitution of the Republic of Lithuania and with the Republic
of Lithuania Law on Privatisation of State-owned and Municipal
Property (Annex 2)".
In Annex 2 titled "The Petition Requesting to Investigate
whether the Legal Act is in Line with the Constitution and Laws"
of the Seimas resolution of 23 November 2006, the reasons are
provided which ground the petition of the Seimas, the petitioner,
requesting to investigate whether the Government resolution of 24
December 2003 is not in conflict with the principle of a state
under the rule of law which is entrenched in the Constitution and
with Articles 3 and 16 of the Law on Privatisation of State-owned
and Municipal Property.
2. At the time when the disputed Government resolution of
24 December 2003 was adopted, Article 3 of the Law on
Privatisation of State-owned and Municipal Property was set forth
in the wording of 4 November 1997, and Article 16 thereofin the
wording of 17 December 2001.
3. Article 3 titled "Privatisation Institutions" (wording
of 4 November 1997) of the Law on Privatisation of State-owned
and Municipal Property provides:
"1. Privatisation institutions shall be as follows:
(1) the State Property Fund (hereinafter referred to as
the Property Fund)
(2) property funds of municipalities, or other
departments of municipality administration (hereinafter referred
to as municipality property funds). Municipal councils shall have
the right to refrain from setting up the said municipal property
privatisation institution and to authorise the mayor to conclude
an agreement with the Property Fund concerning privatisation of
objects which belong to the municipality by right of ownership.
2. The Government resolutions on privatisation issues
adopted on the basis of this Law and other laws of the Republic
of Lithuania shall be binding on state and privatisation
institutions.
3. The decisions of privatisation institutions on
privatisation matters adopted according to their respective
competence pursuant to this Law and other laws shall be binding
on the enterprises controlled by the state (municipalities)."
4. Article 16 titled "Public Tender" (wording of 17
December 2001) of the Law on Privatisation of State-owned and
Municipal Property provides:
"1. A public tender is the transfer of one or several
privatisation objects to the successful bidder, whose written
offers with regard to the price and investment (money for the
acquisition of the long-term and short-term tangible assets by
increasing the authorised capital of the joint-stock or closed
joint-stock company), subject to the meeting of the minimum
requirements for the preservation of jobs have been found to be
the best. Negotiations on how to improve the bids may be entered
into with the potential buyer or potential buyers who have
submitted the highest bids and whose bids do not differ from each
other by more than 15 per cent.
2. The method of the public tender may be applied only to
such privatisation objects the privatisation terms and other
obligations whereof the potential buyer has the right to
implement.
3. When privatising shares of an enterprise controlled by
the state (municipality) by the method of a public tender, the
employees of the enterprise may, under the procedure established
by the Government, be offered to acquire at par value up to 5 per
cent of the shares owned by the state. This offer shall not be
applicable to the enterprises under the control of the state
(municipality) to which, after selling 5 per cent of the shares,
the state (municipality) would transfer its control specified in
Article 18 of this Law or in the case when the employees of the
enterprise have already acquired the shares in the enterprise
pursuant to other laws of the Republic of Lithuania.
4. Information bulletins about the shareholdings in
joint-stock or closed joint-stock companies for sale by the
public tender shall be prepared in the manner prescribed by the
Property Fund. Requirements of the Law on Public Trading in
Securities shall not be applied to those bulletins."
5. Even though the petitioner requests the Constitutional
Court to investigate whether the Government resolution of 24
December 2003 is not in conflict inter alia with entire Article 3
(wording of 4 November 1997) and entire Article 16 (wording of 17
December 2001) of the Law on Privatisation of State-owned and
Municipal Property, it is obvious from the arguments of the
petition that the petitioner doubted the compliance of the
Government resolution of 24 December 2003 with Paragraph 2
(wording of 4 November 1997) of Article 3 and the provision
"negotiations on how to improve the bids may be entered into with
the potential buyer or potential buyers who have submitted the
highest bids and whose bids do not differ from each other by more
than 15 per cent" of Paragraph 1 (wording of 4 November 1997) of
Article 16 of the said law.
6. The doubts of the petitioner regarding the compliance
of the Government resolution of 24 December 2003 with the
constitutional principle of a state under the rule of law are
based on the fact that, in his opinion, this Government
resolution is in conflict with the provisions of the Law on
Privatisation of State-owned and Municipal Property specified by
the petitioner.
7. Thus, the petition of the petitioner requesting to
investigate whether the Government resolution of 24 December 2003
is not in conflict with Article 3 (wording of 4 November 1997)
and Article 16 (wording of 17 December 2001) of the Law on
Privatisation of State-owned and Municipal Property is to be
considered as a petition requesting to investigate whether this
Government Resolution is not in conflict with Paragraph 2
(wording of 4 November 1997) of Article 3 and the provision
"negotiations on how to improve the bids may be entered into with
the potential buyer or potential buyers who have submitted the
highest bids and whose bids do not differ from each other by more
than 15 per cent" of Paragraph 1 (wording of 4 November 1997) of
Article 16 (wording of 17 December 2001) of the Law on
Privatisation of State-owned and Municipal Property.
8. The petition of the Seimas, the petitioner, requesting
to investigate whether the 24 December 2003 Government Resolution
is not in conflict with Paragraph 2 (wording of 4 November 1997)
of Article 3 and the provision "negotiations on how to improve
the bids may be entered into with the potential buyer or
potential buyers who have submitted the highest bids and whose
bids do not differ from each other by more than 15 per cent" of
Paragraph 1 (wording of 4 November 1997) of Article 16 (wording
of 17 December 2001) of the Law on Privatisation of State-owned
and Municipal Property is to be accepted for the consideration at
the Constitutional Court.
9. It is to be noted that, under the Constitution and the
Law on the Constitutional Court, while considering the
constitutional justice case, the Constitutional Court has the
powers, in case it is necessary, to investigate the factual
circumstances that are significant for the decision of the case.
The fact that by this Constitutional Court decision the petition
of the Seimas, the petitioner, requesting to investigate whether
Government Resolution No. 1698 "On the Consent to the Draft
Agreement on Purchase and Sale of the Shares of the Joint-Stock
Company 'Alita' which Belong to the State by Right of Ownership"
of 24 December 2003 is not in conflict with the principle of a
state under the rule of law and with Paragraph 2 (wording of 4
November 1997) of Article 3 and the provision "negotiations on
how to improve the bids may be entered into with the potential
buyer or potential buyers who have submitted the highest bids and
whose bids do not differ from each other by more than 15 per
cent" of Paragraph 1 (wording of 4 November 1997) of Article 16
(wording of 17 December 2001) of the Law on Privatisation of
State-owned and Municipal Property is accepted may not be
interpreted in the manner that, purportedly, the Constitutional
Court a priori considers all the circumstances specified in this
petition as established ones, and all the arguments set forth in
this petitionas grounded and/or legal ones.
Conforming to Item 2 of Paragraph 2 of Article 105 of the
Constitution of the Republic of Lithuania and Articles 26, 28 and
63 of the Law on the Constitutional Court of the Republic of
Lithuania,
The Constitutional Court of the Republic of Lithuania has
passed the following
decision:
To accept the petition set forth in Resolution of the
Seimas of the Republic of Lithuania No. X-922 "On the Conclusions
of the Seimas Provisional Investigation Commission for
Investigation into the Privatization of the Joint-stock Company
'Alita'" of 23 November 2006 (Official Gazette Valstybės žinios,
2006, No. 134-5065) requesting to investigate whether Government
of the Republic of Lithuania Resolution No. 1698 "On the Consent
to the Draft Agreement on Purchase and Sale of the Shares of the
Joint-Stock Company 'Alita' which Belong to the State by Right of
Ownership" of 24 December 2003 (Official Gazette Valstybės
žinios, 2003, No. 123-5628) is not in conflict with the principle
of a state under the rule of law and with Paragraph 2 (wording of
4 November 1997) of Article 3 and the provision "negotiations on
how to improve the bids may be entered into with the potential
buyer or potential buyers who have submitted the highest bids and
whose bids do not differ from each other by more than 15 per
cent" of Paragraph 1 (wording of 4 November 1997) of Article 16
(wording of 17 December 2001) of the Republic of Lithuania Law on
Privatisation of State-owned and Municipal Property.
Justices of the Constitutional Court: Armanas Abramavičius
Toma Birmontienė
Egidijus Kūris
Kęstutis Lapinskas
Zenonas Namavičius
Ramutė Ruškytė
Vytautas Sinkevičius
Stasys Stačiokas
Romualdas Kęstutis Urbaitis