Case No. 13/05
THE CONSTITUTIONAL COURT OF THE REPUBLIC OF
LITHUANIA
RULING
ON THE COMPLIANCE OF PARAGRAPH 12 (WORDING OF 5
MARCH 2002) OF ARTICLE 10 OF THE REPUBLIC OF
LITHUANIA LAW ON PRIVATISATION OF STATE-OWNED AND
MUNICIPAL PROPERTY, AND THAT OF THE PROCEDURE FOR
PREPARATION OF PRIVATISATION OBJECTS FOR
PRIVATISATION (WORDING OF 10 AUGUST 2002) APPROVED
BY RESOLUTION OF THE GOVERNMENT OF THE REPUBLIC OF
LITHUANIA NO. 1427 "ON THE APPROVAL OF THE PROCEDURE
FOR THE PREPARATION OF PRIVATISATION OBJECTS FOR
PRIVATISATION" OF 18 DECEMBER 1997 (WORDING OF 10
AUGUST 2002) WITH THE CONSTITUTION OF THE REPUBLIC
OF LITHUANIA
23 November 2007
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 hearing Daiva Pitrėnaitė,
in the presence of:
the representatives of a group of Members the Seimas of the
Republic of Lithuania, the petitioner, who were Petras Gražulis,
a Member of the Seimas, and the advocate Laurynas Biekša,
the representative of the Seimas of the Republic of
Lithuania, the party concerned, who was Saulius Švedas, senior
advisor of the Law Department of the Office of the Seimas,
the representatives of the Government of the Republic of
Lithuania, the party concerned, who were Neringa Pažūsienė,
Director of the Law and Public Procurement Department of the
Ministry of Economy of the Republic of Lithuania, and Vydmantas
Grigoravičius, Deputy Head of the Law Department of the state
enterprise State Property Fund,
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, at the public
Court hearing on 22 November 2007 heard Case No. 13/05 subsequent
to the petition (No. 1B-18) of a group of Members of the Seimas,
composed of Petras Gražulis, Julius Veselka, Egidijus Klumbys,
Ona Valiukevičiūtė, Marija Pavilionienė, Vytautas Galvonas,
Aldona Balsienė, Valentinas Mazuronis, Henrikas Žukauskas,
Bronius Pauža, Vytautas Kamblevičius, Rimvydas Turčinskas,
Virginijus Domarkas, Gintautas Mikolaitis, Kęstutis Daukšys,
Laima Mogenienė, Rima Baškienė, Jonas Ramonas, Kazys Bobelis,
Valdemaras Tomaševskis, Leokadija Počikovska, Vilma
Martinkaitienė, Romualda Kšanienė, Algirdas Vrubliauskas,
Liudvikas Sabutis, Povilas Jakučionis, Kazys Starkevičius,
Edmundas Pupinis, Rytas Kupčinskas, Audronė Pitrėnienė, Romas
Venclovas, Vida Čigriejienė, Irena Degutienė, Remigijus Ačas,
Rimantas Dagys, Arimantas Dumčius, Vilija Aleknaitė Abramikienė,
Julius Dautartas, and Andrius Baranauskas, the petitioner,
requesting to investigate whether Paragraph 2 of Article 1 of the
Republic of Lithuania Law on the Amendment and Supplement of
Articles 10, 11, 17, and 19 of the Law on the Privatisation of
State-owned and Municipal Property, and Item 2 of Resolution of
the Government of the Republic of Lithuania No. 1235 "On the
Amendment of Resolution of the Government of the Republic of
Lithuania No. 1427 'On the Approval of the Procedure for
Preparation of Privatisation Objects for Privatisation' of 18
December 1997" of 10 August 2002, both to the extent that it is
established that a privatisation object may be removed from the
list of privatisation objects, if it is required for satisfying
the necessities of society, is not in conflict with Articles 5,
46, and 124 of the Constitution of the Republic of Lithuania.
The Constitutional Court
has established:
I
A group of Members of the Seimas, the petitioner, applied
to the Constitutional Court with a petition requesting to
investigate whether Paragraph 2 of Article 1 of the Law on the
Amendment and Supplement of Articles 10, 11, 17, and 19 of the
Law on the Privatisation of State-owned and Municipal Property,
and Item 2 of Resolution of the Government of the Republic of
Lithuania No. 1235 "On the Amendment of Resolution of the
Government of the Republic of Lithuania No. 1427 'On the Approval
of the Procedure for Preparation of Privatisation Objects for
Privatisation' of 18 December 1997" of 10 August 2002, both to
the extent that it is established that a privatisation object may
be removed from the list of privatisation objects, if it is
required for satisfying the necessities of society, are not in
conflict with Articles 5, 46, and 124 of the Constitution.
II
The petition of a group of Members of the Seimas, the
petitioner, is grounded on the fact that, under Article 5 of the
Constitution, the sate institutions serve the people, while under
Article 46 of the Constitution, the state shall regulate economic
activity so that it serves the general welfare of the Nation;
therefore, state and municipal institutions are bound by the
constitutional imperative of the interest of society and the
welfare of the Nation; however, under Paragraph 12 (wording of 5
March 2002, set forth in Paragraph 2 of Article 1 of the Law on
the Amendment and Supplement of Articles 10, 11, 17, and 19 of
the Law on the Privatisation of State-owned and Municipal
Property) of Article 10 of the Republic of Lithuania Law on the
Privatisation of State-owned and Municipal Property and Item 35
(wording of 10 August 2002, set forth in Item 2 of Resolution of
the Government of the Republic of Lithuania No. 1235 "On the
Amendment of Resolution of the Government of the Republic of
Lithuania No. 1427 'On the Approval of the Procedure for
Preparation of Privatisation Objects for Privatisation' of 18
December 1997 of 10 August 2002) of the Procedure for Preparation
of Privatisation Objects for Privatisation approved by Government
Resolution No. 1427 "On the Approval of the Procedure for
Preparation of Privatisation Objects for Privatisation" of 18
December 1997, in privatisation of state (municipal) property the
consideration to the interest of society and the welfare of the
Nation only "may" be given and not "has" to be given, therefore,
the constitutional obligation of the state to serve people and
the general welfare of the Nation may be ignored. Furthermore, in
the opinion of the petitioner, since the disputed legal
regulation allows ignoring the necessities of society, also,
since the cases arising from privatisation relations are
attributed to consideration by courts of general jurisdiction and
not by administrative courts (which, in the opinion of the
petitioner, cannot defend interests of society from state and
municipal institutions), it becomes impossible to apply to court
regarding respective decisions on privatisation; therefore, the
disputed legal regulation is in conflict with Article 124 of the
Constitution whereby acts or actions of municipal councils as
well as of their executive bodies and officials, which violate
the rights of citizens and organisations, may be appealed in
court.
III
In the course of the preparation for the Constitutional
Court hearing, written explanations of the representatives of the
Seimas, the party concerned, who were B. Vėsaitė, a Member of
the Seimas, and S. Švedas, as well as of the representatives of
the Government, the party concerned, who were N. Pažūsienė, and
V. Grigoravičius, were received wherein it is stated that the
disputed legal regulation is not in conflict with Articles 5, 46,
and 124 of the Constitution.
1. The position of the representatives of the Seimas, the
party concerned, is grounded on the fact that, according to them,
the legislator by means of the disputed legal regulation
implemented the provisions of Articles 5, 46 of the Constitution;
after all, the legislator, while heeding the Constitution and
taking into account various factors, may establish the legal
regime (conditions and procedure of usage) of the property
transferred to the ownership of other subjects, so that the
interests of society and the welfare of the Nation were further
secured, and the values consolidated in the Constitution were
implemented. If the law established that the privatisation object
required for the necessities of society "has" to be removed and
not "may" be removed from the list of privatisation objects, it
would unreasonably restrict the possibilities of state
(municipal) institutions, while disposing of state (municipal)
property, to make decisions resulting in the greatest benefit for
the society. Furthermore, the disputed legal regulation does not
prevent persons from appealing to court and lodging complaints
against the actions of municipal institutions, which violate the
rights of citizens and organisations, since under Paragraph 3 of
Article 10 of the Law on the Privatisation of State-owned and
Municipal Property, the municipal council makes a decision
regarding the inclusion into the list of privatisation objects of
shares or other municipal property under the ownership of the
municipality, while under Paragraph 3 of Article 41 of the
Republic of Lithuania Law on Local Self-government, acts or
actions of municipalities and state servants which violate the
rights of residents, institutions, establishments and
organisations may be appealed against in the manner prescribed by
the Republic of Lithuania Law on the Proceedings of
Administrative Cases.
2. The position of the representative of the Government,
the party concerned, who was N. Pažūsienė, is grounded on the
fact that if the Law on the Privatisation of State-owned and
Municipal Property consolidated the obligation rather than the
right to remove a privatisation object required for the
satisfaction of necessities of society from the list of
privatisation objects, it would restrict the right of the state
and municipalities to dispose of the property under their
ownership thereof and would interfere with the execution of their
functions. After all, the necessities of society and the general
welfare of the Nation are not to be regarded as absolute; while
considering the issue of removal of an object from the list of
privatisation objects, one must make a comprehensive assessment
of the necessities of society (in economic, social, legal and
other aspects), as well as that one must take into account
whether a specific necessity is really significant and reasonable
and whether it may be satisfied in another way. Furthermore, the
need of society may be satisfied also by way of privatisation of
state or municipal property; sometimes it is more expedient to
transfer such property to private subjects and establish that it
should be used for the satisfaction of necessities of society. It
is also stated that the disputed legal regulation does not
prevent lodging complaints against respective actions of state
and municipal institutions, since each person concerned is
entitled to apply to court under the procedure stipulated by
laws, so that the violated or disputed right or legitimate
interest would be defended.
3. The position of the representative of the Government,
the party concerned, who was V. Grigoravičius, is grounded on the
fact that the privatisation of property under the ownership of
the state (a municipality) is one of the ways established in the
legal acts to implement the public interest (needs of society),
and this interest should be heeded in making a decision both
regarding privatisation of the property under the ownership of
the state (a municipality) and regarding the removal of a
privatisation object from the list of privatisation objects. The
content of the general welfare of the Nation in each specific
case is disclosed by taking into account economic, social and
other important criteria, therefore, an assessment is unavoidable
and necessary for the purpose of a fair and legitimate
establishment, in which manner the public interest will be
optimally implemented while the public property will serve for
the welfare of the Nation in the best way. In the opinion of the
representative of the Government, the party concerned, laws
ensure the defence of violated and disputed rights and of the
public interest in court.
IV
In the course of the preparation of the case for the
hearing of the Constitutional Court written explanations were
received from Z. Balčytis, the Minister of Finance of the
Republic of Lithuania, P. Koverovas, State Secretary of the
Ministry of Justice of the Republic of Lithuania, V.
Kvietkauskas, Director of the Lithuanian Association of
Municipalities, R. Šimašius, Vice-president of the Lithuanian
Free Market Institute, P. Milašauskas, Director General of the
state enterprise State Property Fund.
V
1. At the hearing of the Constitutional Court, the
representative of the group of Members of the Seimas, the party
concerned, who was P. Gražulis, virtually repeated the arguments
set forth in his written explanations and also presented
additional explanations. The Advocate L. Biekša also presented
arguments, which, in his opinion, substantiated the petition of
the group of Members of the Seimas.
2. At the hearing of the Constitutional Court, the
representative of the Seimas, the party concerned, who was S.
Švedas, virtually repeated the arguments set forth in his written
explanations.
3. At the hearing of the Constitutional Court, the
representatives of the Government, the party concerned, who were
N. Pažūsienė and V. Grigoravičius, virtually repeated the
arguments set forth in their written explanations and also
presented additional explanations.
The Constitutional Court
holds that:
I
On the compliance of Paragraph 2 of Article 1 of the Law on
the Amendment and Supplement of Articles 10, 11, 17, and 19 of
the Law on the Privatisation of State-owned and Municipal
Property with Articles 5, 46, and 124 of the Constitution.
1. On 5 March 2002, the Seimas adopted the Law on the
Amendment and Supplement of Articles 10, 11, 17, and 19 of the
Law on the Privatisation of State-owned and Municipal Property,
which took effect on 27 March 2002. Paragraph 2 of Article 1 of
this law amended Paragraph 12 (wording of 4 November 1997) of
Article 10 of the Law on the Privatisation of State-owned and
Municipal Property and set it forth in a new wording. Paragraph
12 (wording of 5 March 2002) of Article 10 of the Law on the
Privatisation of State-owned and Municipal Property established
the following:
"A privatisation object may be removed from the list of
privatisation objects approved by the Government, and the
implementation of its privatisation programme may be suspended
and/or declared completed, if bankruptcy proceedings are
instituted against the enterprise in the manner laid down in the
Enterprise Bankruptcy Law, or the enterprise is put into
liquidation according to the procedure prescribed by the Company
Law, or the privatisation object has not survived a natural
disaster or similar disaster, or its physical properties have
changed by more than 1/3, when this object is used to compensate
to the citizens for the existing real property redeemed by the
state in accordance with the Law on the Amount of Compensations
for Real Property Redeemed by the State, their Sources, Term of
Payment and Procedure and Guarantees and Concessions provided for
in the Law on the Restoration of the Rights of Ownership of
Citizens to the Existing Real Property, and also if the object
privatisation programme has already been announced at least once
in the manner established by this Law but the object has not been
sold within the time period set in the object privatisation
programme. A privatisation object may also be removed from the
list of privatisation objects, if it is required for satisfying
the necessities of the state, a municipality or the society."
2. Paragraph 12 (wording of 5 March 2002) of Article 10 of
the Law on the Privatisation of State-owned and Municipal
Property was amended and set forth in a new wording by Paragraph
4 of Article 4 of the Republic of Lithuania Law on the Amendment
and Supplement of Articles 4, 7, 9, 10, 11, 13, 16, 17, 19, 20,
21, and 22 of the Law on the Privatisation of State-owned and
Municipal Property adopted by the Seimas on 5 December 2006 that
took effect on 1 March 2007.
3. A group of Members of the Seimas, the petitioner,
requests to investigate whether Paragraph 2 of Article 1 of the
Law on the Amendment and Supplement of Articles 10, 11, 17, and
19 of the Law on the Privatisation of State-owned and Municipal
Property to the extent that it is established that a
privatisation object may be removed from the list of
privatisation objects, if it is required for satisfying the
necessities of society, is not in conflict with Articles 5, 46,
and 124 of the Constitution.
4. It is obvious from the petition of the group of Members
of the Seimas, the petitioner, that it has doubted whether the
said legal regulation is not in conflict with not entire Article
5 of the Constitution, but only with Paragraph 3 thereof, which
establishes that state institutions shall serve the people, and
with not with entire Article 46 of the Constitution, but only
with Paragraph 3 thereof, which establishes that the state shall
regulate economic activities so that it serves the general
welfare of the Nation.
5. Therefore, the petition of a group of Members of the
Seimas, the petitioner, requesting to investigate whether
Paragraph 2 of Article 1 of the Law on the Amendment and
Supplement of Articles 10, 11, 17, and 19 of the Law on the
Privatisation of State-owned and Municipal Property to the extent
that it is established that a privatisation object may be removed
from the list of privatisation objects, if it is required for
satisfying the necessities of society, was not in conflict with
Articles 5, 46, and 124 of the Constitution, is to be treated as
a petition requesting to investigate whether the provision "A
privatisation object may <
> be removed from the list of
privatisation objects, if it is required for satisfying the
necessities of the state, a municipality or the society" of
Paragraph 12 (wording of 5 March 2002) of Article 10 of the Law
on the Privatisation of State-owned and Municipal Property was
not in conflict with Paragraph 3 of Article 5, Paragraph 3 of
Article 46, Article 124 of the Constitution.
It should be noted that this provision is also available in
Paragraph 12 (wording of 5 December 2006) of Article 10 of the
Law on the Privatisation of State-owned and Municipal Property.
6. The disputed provision of Paragraph 12 (wording of 5
March 2002) of Article 10 of the Law on the Privatisation of
State-owned and Municipal Property has a formulation "required
for satisfying the necessities of the state, a municipality or
the society". The notion "needs of society" (meaning the same as
the notion "necessities of society") were more than once
construed in the jurisprudence of the Constitutional Court
predominantly in the context of the institutes of expropriation
(eminent domain) and restitution, by relating it with Paragraph 3
of Article 23 of the Constitution (where this notion is used).
Some provisions of the official constitutional doctrine of the
needs of society are also to be applicable mutatis mutandis to
privatisation relations. Needs of society are interests of the
entire society or a part thereof, which the state, while
discharging its functions, is constitutionally obligated to
secure and satisfy (Constitutional Court rulings of 2 April 2001,
10 May 2002, 19 September 2002, and 4 March 2003), therefore,
they are state necessities at the same time (Constitutional Court
ruling of 4 March 2003). In addition, the notion "state
necessities", depending on the context, may be construed not only
in its broad sense, which is the ensuring of proper discharging
of all functions of the state as the organisation of the entire
society, but also in its narrow sense, which is necessities to
ensure the activities of state institutions (state apparatus),
however, the construction of the content of this notion must be
based on the provision that the state (its institutions) must act
in the interests of society, therefore the ensuring of the
conditions of activities of state institutions in discharging
their functions in the interests of society is also a need of
society, therefore, it is impossible to construe the notion
"state necessities", even while understanding it in its narrow
meaning, as being inconsistent, in itself, with the notion "needs
of society" (Constitutional Court ruling of 4 March 2003). The
notions "needs (necessities) of the state" and "needs
(necessities) of society" may not be opposed, since they
supplement rather than negate each other. Equally, these notions
may not be opposed with the notion "municipal needs
(necessities)", since the needs of a municipality are the needs
of local residents.
By the way, acts of the Constitutional Court more than once
used the formulations "necessities of society and the state"
(Constitutional Court rulings of 9 October 1998 and 14 January
2002, decision of 13 November 2007), "needs of society and the
state" (Constitutional Court rulings of 14 January 2002, 11 July
2002, and 7 June 2007), "public needs of society and of the
state" (Constitutional Court rulings of 10 July 1997 and 17
November 2003), "interest of society and of the state"
(Constitutional Court ruling of 14 January 2002), whereby the
words "society" and "state" are not opposed, but they supplement
each other. The notions "the need of society" and "the public
interest" also supplement each other (Constitutional Court ruling
of 30 September 2003); "the interest of society" is to be related
with "socially important objectives" (Constitutional Court ruling
of 4 March 2003). The notions "dealings (needs) of society" and
"needs of local residents" (i.e. needs of a municipality) are
also used in the acts of the Constitutional Court as
supplementing, but not negating each other (Constitutional Court
rulings of 22 October 1996, 18 February 1998, 13 June 2000, and 7
May 2005). All these notions, "needs (necessities) of society",
"needs (necessities) of the state", "needs (necessities) of a
municipality", denote the public interest and are to be related
with the constitutional concept of the welfare of the Nation.
7. It is to be noted that, as has been held by the
Constitutional Court in the construction of the notion "needs of
society" in the context of the expropriation institute, seizure
of property for the needs of society is linked in the
Constitution not with who will receive the seized property but
with the objectives of the seizure of property: to use the item
in the interests of society, for the socially important
objectives which can only be achieved by making use of the
individual features of a particular item seized; it is impossible
to construe the needs of society as in all cases prohibiting to
seize property and transfer it for private ownership; the
question of whether property is seized for the needs of society
is not determined by what subject (the state, municipality, legal
or natural person) will subsequently become the owner of this
property but by the fact whether the property seized from the
owner was really seized because it was necessary to satisfy the
needs of society, i.e. socially important objectives, which can
only be achieved by making use of the particular property seized
(Constitutional Court ruling of 4 March 2003).
8. The disputed provision of Paragraph 12 (wording of 5
March 2002) of Article 10 of the Law on the Privatisation of
State-owned and Municipal Property is to be construed by taking
into account not only the provisions of Articles 5, 46, and 124
of the Constitution indicated by a group of Members of the
Seimas, the petitioner, but also Paragraph 2 of Article 128 of
the Constitution, whereby the procedure for the possession, use
and disposal of state property shall be established by law.
In the construction of this paragraph the Constitutional
Court has held that the laws should establish as to which state
institutions shall take decisions on the transfer of the property
under the ownership of the state to the ownership of other
subjects, the empowerments of these institutions to transfer the
property, the conditions and procedure of transfer of the
property, as well as that the transfer of the property, which
belongs by right of ownership to the state, as ownership to other
subjects must be based on the law (Constitutional Court rulings
of 30 September, 8 July 2005, 23 August 2005, and 23 May 2007).
It should be noted that the provision of the official
constitutional doctrine "the transfer of the property, which
belongs by right of ownership to the state, as ownership to other
subjects must be based on the law" may not be construed as
meaning that, purportedly, all relations of transfer of the
property under the ownership of the state should be regulated
only by means of a law. The Government as well as other subjects
of the law-making according to their competence may also regulate
these relations by substatutory legal acts which are grounded on
the law and which do not compete with it. It is also to be noted
that the constitutional provision "the procedure for the
possession, use and disposal of state property shall be
established by law" is to be construed by taking account of
Paragraph 2 of the Republic of Lithuania Constitutional Act "On
Membership of the Republic of Lithuania in the European Union" (a
constituent part of the Constitution), whereby the norms of the
European Union law shall be a constituent part of the legal
system of the Republic of Lithuania; where it concerns the
founding Treaties of the European Union, the norms of the
European Union law shall be applied directly, while in the event
of collision of legal norms, they shall have supremacy over the
laws and other legal acts of the Republic of Lithuania.
In the construction of Article 128 of the Constitution, the
Constitutional Court has also held that the state property is not
an end in itself, but that it should provide benefits to society
and should be treasured, subjected to no waste, and managed
rationally; laws should protect the rights of ownership of all
owners, including the state as the organisation of the entire
society; no such legal regulation is permissible whereby the
property under the ownership of the state is possessed, used, and
disposed of in such a way that the interest or needs of only one
social group or individual persons were satisfied and this
property did not serve the public interest, the needs of society
or the welfare of the Nation; however, the requirement arising
from the Constitution to treasure state property subjecting it to
no waste does not mean that state property cannot be transferred
to the ownership of other persons (save the exceptions arising
from the Constitution itself); therefore, no such legal
regulation is permissible whereby the property under the
ownership of the state is transferred to the ownership of other
subjects for the purpose of satisfaction of interests or needs of
only one social group or individual persons, if it contravenes
the public interest, the needs of society and does not serve the
welfare of the Nation (Constitutional Court rulings of 30
September 2003, 8 July 2005, and 5 July 2007). The transfer of
the property under the ownership of the state to the ownership of
other subjects (including privatisation) may be constitutionally
justifiable only when it may provide larger benefits to society,
when the purpose of such transfer is the satisfaction of
important, constitutionally grounded needs and interests of
society; such transfer (both repayable and non-repayable) would
be unjustifiable constitutionally, if it inflicted obvious damage
on society and violated the rights of other persons
(Constitutional Court rulings of 30 September 2003 and 8 July
2005). Besides, the legislator, while heeding the Constitution
and taking into account various factors, may establish a legal
regime (conditions and procedure of usage) of the property
transferable to the ownership of other subjects, in order that
the interests of society and the welfare of the Nation were
further ensured and the values consolidated in the Constitution
were implemented (Constitutional Court rulings of 30 September
2003 and 8 July 2005). These official doctrinal provisions are
also to be applied mutatis mutandis to the transfer of the
property under the ownership of the state to the ownership of
other subjects (including privatisation).
9. An object of privatisation required for the satisfaction
of the public interest may be entered into the list of objects of
privatisation approved by the Government only if reasons are
provided that the respective public interest may be better
satisfied by way of privatisation of this object. This process
should be public and transparent. Nevertheless, it may also
happen that the fact of suffering of the respective public
interest due to privatisation of a certain object may only emerge
already upon the entry of this object into the list objects for
privatisation approved by the Government. The provision of
Paragraph 12 (wording of 5 March 2002) of Article 10 of the Law
on the Privatisation of State-owned and Municipal Property
disputed by the group of Members of the Seimas, the petitioner,
is designed precisely for such situations.
10. According to the petition of the group of Members of
the Seimas, the petitioner, while deciding whether the disputed
provision of Paragraph 12 (wording of 5 March 2002) of Article 10
of the Law on the Privatisation of State-owned and Municipal
Property was not in conflict with Paragraph 3 of Article 5 and
Paragraph 3 of Article 46 of the Constitution, it is to be noted
that the said provision also means that a privatisation object
required for the satisfaction of public interest not only may,
but also has to be removed from the list of objects for
privatisation approved by the Government, if it transpires that
the respective public interest would suffer. Such object may be
left not removed from the list of objects for privatisation
approved by the Government, only in the event if the Government,
which, pursuant to Item 1 of Article 94 of the Constitution,
shall administer the affairs of the country, may substantiate
that the respective public interest may be better satisfied
through privatisation of this object. Respective resolutions of
the Government may be adopted only upon assessment of all
circumstances of importance (economic, social circumstances, also
those related with ensuring the security of society, etc.).
Therefore, the disputed provision of Paragraph 12 (wording of 5
March 2002) of Article 10 of the Law on the Privatisation of
State-owned and Municipal Property neither directly nor
indirectly presupposes any empowerments to the Government or any
other state institution, as well as to municipal institutions, to
keep such objects on the list of objects for privatisation, the
privatisation whereof could cause damage to the public interest
and to the welfare of the Nation.
Therefore, there are no legal grounds for the statement
that, purportedly, the disputed provision of Paragraph 12
(wording of 5 March 2002) of Article 10 of the Law on the
Privatisation of State-owned and Municipal Property creates
preconditions for some state institutions not to serve people and
take such decisions which would not serve the general welfare of
the Nation.
11. Taking account of the arguments set forth, one is to
draw a conclusion that the provision "A privatisation object may
<
> be removed from the list of privatisation objects, if it is
required for satisfying the necessities of the state, a
municipality or the society" of Paragraph 12 (wording of 5 March
2002) of Article 10 of the Law on the Privatisation of State-
owned and Municipal Property was not in conflict with Paragraph 3
of Article 5 and Paragraph 3 of Article 46 of the Constitution.
12. While deciding subsequent to the petition of the group
of Members of the Seimas, the petitioner, whether the disputed
provision of Paragraph 12 (wording of 5 March 2002) of Article 10
of the Law on the Privatisation of State-owned and Municipal
Property was not in conflict with Article 124 of the
Constitution, it is to be noted that pursuant to Paragraph 1
(wording of 4 November 1997) of Article 10, also according to
other provisions, inter alia Paragraph 12 (wording of 5 March
2002) of Article 10 of this law, the legal regulation established
wherein is disputed by the group of Members of the Seimas, the
petitioner, the list of objects for privatisation is a document
approved by the Government according to the procedure stipulated
by laws.
Meanwhile, Article 124 of the Constitution provides that
acts or actions of municipal councils as well as of their
executive bodies and officials, which violate the rights of
citizens and organisations, may be appealed in court.
13. It should be noted that the Constitution also
guarantees a possibility of disputing in court (also in the
defence of the public interest) also the decisions of the
Government made in administering the affairs of the country
(however, by not negating the constitutional empowerments of the
Government to adopt respective decisions which are within its
competence).
Such a possibility is also consolidated in laws.
However, such disputing of the decisions by the Government
may not be substantiated by Article 124 of the Constitution,
which is devoted to the regulation of relations of different
character, namely the relations related to appealing against acts
or actions of municipal councils as well as of their executive
bodies and officials in court.
In this context one is to mention that, under Paragraph 2
of Article 110 of the Constitution, in cases when there are
grounds to believe that the law or other legal act which should
be applied in a concrete case is in conflict with the
Constitution, the judge shall suspend the consideration of the
case and shall apply to the Constitutional Court requesting it to
decide whether the law or other legal act in question is in
compliance with the Constitution. Under the Constitution (inter
alia Paragraph 1 of Article 102 thereof), the investigation of
compliance of resolutions of the Government with the Constitution
and laws is attributed to the jurisdiction of the Constitutional
Court.
14. Taking account of the arguments set forth, one is to
draw a conclusion that the provision "A privatisation object may
<
> be removed from the list of privatisation objects, if it is
required for satisfying the necessities of the state, a
municipality or the society" of Paragraph 12 (wording of 5 March
2002) of Article 10 of the Law on the Privatisation of State-
owned and Municipal Property was not in conflict with Article 124
of the Constitution.
II
On the compliance of Item 2 of Government Resolution No.
1235 "On the Amendment of Resolution of the Government of the
Republic of Lithuania No. 1427 'On the Approval of the Procedure
for Preparation of Privatisation Objects for Privatisation' of 18
December 1997" of 10 August 2002 with Paragraph 3 of Article 5,
Paragraph 3 of Article 46, and Article 124 of the Constitution.
1. On 10 August 2002, the Government adopted Resolution No.
1235 "On the Amendment of Resolution of the Government of the
Republic of Lithuania No. 1427 'On the Approval of the Procedure
for Preparation of Privatisation Objects for Privatisation' of 18
December 1997", which took effect on 15 August 2002. Item 2 of
this Government Resolution replaced Item 35 (wording of 9 October
2000) of the Procedure for Preparation of Privatisation Objects
for Privatisation approved by Government Resolution No. 1427 "On
the Approval of the Procedure for Preparation of Privatisation
Objects for Privatisation" of 18 December 1997 (wording of 9
October 2000).
The Procedure for Preparation of Privatisation Objects for
Privatisation (wording of 10 August 2002) approved by Government
Resolution No. 1427 "On the Approval of the Procedure for
Preparation of Privatisation Objects for Privatisation" of 18
December 1997 (wording of 10 August 2002) inter alia established:
"A privatisation object may be removed <...> from the list
of objects for privatisation approved by the Government <...>,
if: <...>
35.5. this object is required for satisfying the
necessities of the state, a municipality or the society."
2. By Government Resolution No. 274 "On the Amendment of
Resolution of the Government of the Republic of Lithuania No.
1427 'On the Approval of the Procedure for Preparation of
Privatisation Objects for Privatisation' of 18 December 1997" of
14 March 2005 which took effect on 18 March 2005, amendments were
made to the Procedure for Preparation of Privatisation Objects
for Privatisation and to the name of the Government resolution
that approved it. Since then they have been referred to
(respectively) as the Rules for Preparation of Privatisation
Objects for Privatisation and Government Resolution No. 1427 "On
the Approval of the Rules for Preparation of Privatisation
Objects for Privatisation".
By amending Item 35 (wording of 10 August 2005) of the
Rules for the Preparation of Privatisation Objects for
Privatisation approved by Government Resolution No. 1427 "On the
Approval of the Procedure for Preparation of Privatisation
Objects for Privatisation" of 18 December 1997 (wording of 10
August 2005) by Government Resolution No. 932 "On the Amendment
of Resolution of the Government of the Republic of Lithuania No.
1427 'On the Approval of the Rules for Preparation of
Privatisation Objects for Privatisation' of 18 December 1997" of
29 August 2007 that took effect on 14 September 2007, one did not
amend the quoted provision.
3. The group of Members of the Seimas, the petitioner,
requests to investigate whether Item 2 of Government Resolution
No. 1235 "On the Amendment of Resolution of the Government of the
Republic of Lithuania No. 1427 'On The Approval of the Procedure
for Preparation of Privatisation Objects for Privatisation' of 18
December 1997" of 10 August 2002 to the extent that it is
established that a privatisation object may be removed from the
list of privatisation objects, if it is required for satisfying
the necessities of society, is not in conflict with Articles 5,
46, and 124 of the Constitution.
4. It is obvious from the petition of the group of Members
of the Seimas, the petitioner, that it has doubted whether the
said legal regulation is not in conflict with not entire Article
5 of the Constitution, but only with Paragraph 3 thereof, and
with not entire Article 46 of the Constitution, but only with
Paragraph 3 thereof.
5. Therefore, the petition of the group of Members of the
Seimas, the petitioner, requesting to investigate whether Item 2
of Government Resolution No. 1235 "On the Amendment of Resolution
of the Government of the Republic of Lithuania No. 1427 'On the
Approval of the Procedure for Preparation of Privatisation
Objects for Privatisation' of 18 December 1997"of 10 August 2002
to the extent that it is established that a privatisation object
may be removed from the list of privatisation objects, if it is
required for satisfying the necessities of society, is not in
conflict with Articles 5, 46, and 124 of the Constitution is to
be treated as a petition requesting to investigate whether the
provision "A privatisation object may be removed from <
> the
list of privatisation objects <
> approved by the Government if:
<
> 35.5.5 this object is required for satisfying the necessities
of the state, a municipality or the society" of the Procedure for
Preparation of Privatisation Objects for Privatisation (wording
of 10 August 2002) approved by Government Resolution No. 1427 "On
the Approval of the Procedure for Preparation of Privatisation
Objects for Privatisation" of 18 December 1997 (wording of 10
August 2002) was not in conflict with Paragraph 3 of Article 5,
Paragraph 3 of Article 46, and Article 124 of the Constitution.
One is to note that such provision is also available in the
Rules for Preparation of Privatisation Objects for Privatisation
(wording of 29 August 2007) approved by Government Resolution No.
1427 "On the Approval of the Rules for Preparation of
Privatisation Objects for Privatisation" of 18 December 1997
(wording of 29 August 2007).
6. It is to be stated that the provision "A privatisation
object may be removed from <
> the list of privatisation objects
<
> approved by the Government if: <
> 35.5.5 this object is
required for satisfying the necessities of the state, a
municipality or the society" of the Procedure for Preparation of
Privatisation Objects for Privatisation (wording of 10 August
2002) approved by Government Resolution No. 1427 "On the Approval
of the Procedure for Preparation of Privatisation Objects for
Privatisation" of 18 December 1997 (wording of 10 August 2002) is
identical to the provision "A privatisation object may <
> be
removed from the list of privatisation objects, if it is required
for satisfying the necessities of the state, a municipality or
the society" of Paragraph 12 (wording of 5 March 2002) of Article
10 of the Law on the Privatisation of State-owned and Municipal
Property, therefore, the disputed legal regulation established by
the Government does not compete with that established in the law.
7. Having held that the provision "A privatisation object
may <
> be removed from the list of privatisation objects, if it
is required for satisfying the necessities of the state, a
municipality or the society" of Paragraph 12 (wording of 5 March
2002) of Article 10 of the Law on the Privatisation of State-
owned and Municipal Property was not in conflict with Paragraph 3
of Article 5, Paragraph 3 of Article 46, and Article 124 of the
Constitution, one is also to hold that the provision "A
privatisation object may be removed from <
> the list of
privatisation objects <
> approved by the Government if: <
> 35.
5.5 this object is required for the satisfaction of the needs of
the state, a municipality or the society" of the Procedure for
Preparation of Privatisation Objects for Privatisation (wording
of 10 August 2002) approved by Government Resolution No. 1427 "On
the Approval of the Procedure for Preparation of Privatisation
Objects for Privatisation" of 18 December 1997 (wording of 10
August 2002) was not in conflict with Paragraph 3 of Article 5,
Paragraph 3 of Article 46, and Article 124 of the Constitution,
either.
Pursuant to Articles 102 and 105 of the Constitution of the
Republic of Lithuania, 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 passed the
following
ruling:
1. To recognise that the provision "A privatisation object
may <
> be removed from the list of privatisation objects, if it
is required for satisfying the necessities of the state, a
municipality or the society" of Paragraph 12 (wording of 5 March
2002) (Official gazette Valstybės žinios, 2002, No. 31-1108) of
Article 10 of the Republic of Lithuania Law on the Privatisation
of State-owned and Municipal Property was not in conflict with
the Constitution of the Republic of Lithuania.
2. To recognise that the provision "A privatisation object
may be removed from <
> the list of privatisation objects <
>
approved by the Government if: <
> 35.5.5 this object is required
for satisfying the necessities of the state, a municipality or
the society" of the Procedure for Preparation of Privatisation
Objects for Privatisation (wording of 10 August 2002) (Official
gazette Valstybės žinios, 2002, Nr. 80-3420) adopted by
Resolution of the Government of the Republic of Lithuania No.
1427 "On the Approval of the Procedure for Preparation of
Privatisation Objects for Privatisation" of 18 December 1997
(wording of 10 August 2002) 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
Toma Birmontienė
Egidijus Kūris
Kęstutis Lapinskas
Zenonas Namavičius
Ramutė Ruškytė
Vytautas Sinkevičius
Stasys Stačiokas
Romualdas Kęstutis
Urbaitis