THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA
DECISION
ON THE ACCEPTANCE OF THE PETITION OF THE SEIMAS OF THE
REPUBLIC OF LITHUANIA, THE PETITIONER, SET FORTH IN
SEIMAS RESOLUTION NO. X-1729 "ON APPLYING TO THE
CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA WITH
A PETITION REQUESTING TO INVESTIGATE WHETHER THE
REPUBLIC OF LITHUANIA LAW ON AMENDING AND SUPPLEMENTING
ARTICLES 8, 10, 11, AND 20 OF THE LAW ON THE NUCLEAR
POWER PLANT IS NOT IN CONFLICT WITH THE CONSTITUTION OF
THE REPUBLIC OF LITHUANIA" REQUESTING TO INVESTIGATE
WHETHER THE PROVISIONS OF ARTICLES 10 AND 11 (WORDING
OF 1 FEBRUARY 2008) OF THE REPUBLIC OF LITHUANIA LAW ON
THE NUCLEAR POWER PLANT ARE NOT IN CONFLICT WITH THE
CONSTITUTION
8 October 2008
Vilnius
The Constitutional Court of the Republic of Lithuania,
composed of the Justices of the Constitutional Court Armanas
Abramavičius, Toma Birmontienė, Pranas Kuconis, Kęstutis
Lapinskas, Zenonas Namavičius, Egidijus Šileikis, Algirdas
Taminskas and Romualdas Kęstutis Urbaitis,
with the secretary of the sittingDaiva Pitrėnaitė,
at a procedural sitting of the Constitutional Court
considered the petition of the Seimas of the Republic of
Lithuania, the petitioner, set forth in Seimas Resolution No. X-
1729 "On Applying to the Constitutional Court of the Republic of
Lithuania with a Petition Requesting to Investigate Whether the
Republic of Lithuania Law on Amending and Supplementing Articles
8, 10, 11, and 20 of the Law on the Nuclear Power Plant Is Not in
Conflict with the Constitution of the Republic of Lithuania" of
22 September 2008 requesting to investigate:
1) whether Paragraph 1 (Official Gazette Valstybės žinios,
2008, No. 19-674) of Article 2 of the Republic of Lithuania Law
on Amending Articles 8, 10, 11, and 20 of the Law on the Nuclear
Power Plant, which amends Paragraph 1 of Article 10 of the Law on
the Nuclear Power Plant and provides that "the national investor
shall be an independent private legal entity registered in the
Republic of Lithuania, established for an indefinite period of
time and operating under the laws of the Republic of Lithuania,
the aim of whose activity shall be gaining benefits for itself
and all its shareholders in a socially responsible manner" is not
in conflict with Paragraph 5 of Article 46 of the Constitution of
the Republic of Lithuania;
2) whether Paragraph 1 of Article 2 of the Republic of
Lithuania Law on Amending Articles 8, 10, 11, and 20 of the Law
on the Nuclear Power Plant, which amends Paragraph 1 of Article
10 of the Law on the Nuclear Power Plant and provides that "the
national investor shall be the national power company managing
through its subsidiaries the main part of the Lithuanian power
systemthe electricity transmission and distribution networks.
Seeking to attain the goal of its activity, the national investor
shall participate, on the basis of private initiative, in
implementing in Lithuania the project of construction of a new
nuclear power plant, as well as constructing, according to the
procedure established by the Law on Electricity and other legal
acts, the interconnections of the power system of the Republic of
Lithuania with the power systems of the Republic of Poland and
the Kingdom of Sweden" is not in conflict with Paragraphs 3 and 4
of Article 46 of the Constitution of the Republic of Lithuania;
3) whether Item 1 of Paragraph 1 of Article 11 of the Law on
the Nuclear Power Plant, which is set forth in Article 3 of the
Republic of Lithuania Law on Amending Articles 8, 10, 11, and 20
of the Law on the Nuclear Power Plant, and which provides that
"the Government of the Republic of Lithuania implementing the
provisions of Article 10 of this Law shall have the right to
negotiate with the shareholder of the controlling stake in the
public limited liability company VST on the establishment of the
national investor and on the investment of all the shares owned
by that shareholder in the public limited liability company VST,
or part thereof amounting to more than 2/3 of the shares of the
public limited liability company VST carrying more than 2/3 of
votes at the general shareholders' meeting, as well as on the
acquisition of newly issued shares of the national investor", is
not in conflict with Article 29 and Paragraph 4 of Article 46 of
the Constitution of the Republic of Lithuania.
The Constitutional Court
has established:
1. On 28 June 2007, a group of the Seimas of the Republic of
Lithuania, the petitioner, adopted the Republic of Lithuania Law
on the Nuclear Power Plant, which came into force on 10 July
2007. This law was amended by the Republic of Lithuania Law on
Amending Articles 8, 10, 11, and 20 of the Law on the Nuclear
Power Plant, which came into force on 14 February 2008.
1.1. By Paragraph 1 of Article 2 of the Law on Amending
Articles 8, 10, 11, and 20 of the Law on the Nuclear Power Plant,
Paragraph 1 of Article 10 the Law on the Nuclear Power Plant
(wording of 28 June 2007) was amended and it was set forth as
follows:
"The national investor shall be an independent private legal
entity registered in the Republic of Lithuania, established for
an indefinite period of time and operating under the laws of the
Republic of Lithuania, the aim of whose activity shall be gaining
benefits for itself and all its shareholders in a socially
responsible manner and taking part in implementing the strategic
goal of Lithuania provided for in paragraph 3 of Article 8 of
this Law. The legal form of the national investor shall be a
public limited liability company; the registered office of the
national investor shall be located in the Republic of Lithuania.
The national investor shall be the national power company
managing through its subsidiaries the main part of the Lithuanian
power systemthe electricity transmission and distribution
networks. Seeking to attain the goal of its activity, the
national investor shall participate, on the basis of private
initiative, in implementing in Lithuania the project of
construction of a new nuclear power plant, as well as
constructing, according to the procedure established by the Law
on Electricity and other legal acts, the interconnections of the
power system of the Republic of Lithuania with the power systems
of the Republic of Poland and the Kingdom of Sweden."
1.2. By Article 3 of the Law on Amending Articles 8, 10, 11,
and 20 of the Law on the Nuclear Power Plant, Article 11 the Law
on the Nuclear Power Plant (wording of 28 June 2007) was amended
and it was set forth as follows:
"The Government of the Republic of Lithuania implementing
the provisions of Article 10 of this Law shall have the right to:
1) negotiate with the shareholder of the controlling stake
in the public limited liability company VST on the establishment
of the national investor and on the investment of all the shares
owned by that shareholder in the public limited liability company
VST, or part thereof amounting to more than 2/3 of the shares of
the public limited liability company VST carrying more than 2/3
of votes at the general shareholders' meeting, as well as on the
acquisition of newly issued shares of the national investor;
<
>."
2. On 22 September 2008, the Seimas, the petitioner, adopted
Resolution No. X-1729 "On Applying to the Constitutional Court of
the Republic of Lithuania with a Petition Requesting to
Investigate Whether the Republic of Lithuania Law on Amending and
Supplementing Articles 8, 10, 11, and 20 of the Law on the
Nuclear Power Plant Is Not in Conflict with the Constitution of
the Republic of Lithuania" whereby it requested that the
Constitutional Court investigate:
"1) whether Paragraph 1 (Official Gazette Valstybės žinios,
2008, No. 19-674) of Article 2 of the Republic of Lithuania Law
on Amending Articles 8, 10, 11, and 20 of the Law on the Nuclear
Power Plant, which amends Paragraph 1 of Article 10 of the Law on
the Nuclear Power Plant and provides for the sole aim of the
activity of the national investor and which stipulates that 'the
national investor shall be an independent private legal entity
registered in the Republic of Lithuania, established for an
indefinite period of time and operating under the laws of the
Republic of Lithuania, the aim of whose activity shall be gaining
benefits for itself and all its shareholders in a socially
responsible manner', and which does not entrench the protection
of the rights of consumers, is not in conflict with Paragraph 5
of Article 46 of the Constitution of the Republic of Lithuania
which provides that 'the State shall defend the interests of the
consumer'. It needs to be noted that the sub-chapter titled
"Economic Policy" of Chapter 4 of Part I of the Appendix to the
Republic of Lithuania Law on the Basics of National Security
names the energy sector as a sector which is of strategic
importance to national security, therefore, securing of
production, distribution and supply of electricity in a manner
which does not violate the rights of the consumers, is of special
significance to the Lithuanian economy and residentsconsumers of
electricity;
2) whether the fact that the Republic of Lithuania Law on
the Nuclear Power Plant provides for establishment of the
national investor which, as an owner, would concentrate in its
hands the main portion of production of electricity, its
transmission, distribution, export and import, and Paragraph 1 of
Article 2 of the Republic of Lithuania Law on Amending and
Supplementing Articles 8, 10, 11, and 20 of the Law on the
Nuclear Power Plant, which amends Paragraph 1 of Article 10 of
the said law, and which provides that 'the national investor
shall be the national power company managing through its
subsidiaries the main part of the Lithuanian power systemthe
electricity transmission and distribution networks. Seeking to
attain the goal of its activity, the national investor shall
participate, on the basis of private initiative, in implementing
in Lithuania the project of construction of a new nuclear power
plant, as well as constructing, according to the procedure
established by the Law on Electricity and other legal acts, the
interconnections of the power system of the Republic of Lithuania
with the power systems of the Republic of Poland and the Kingdom
of Sweden', is not in conflict with Paragraph 3 of Article 46 of
the Constitution of the Republic of Lithuania, which provides: '
The State shall regulate economic activity so that it serves the
general welfare of the Nation', and Paragraph 4 of the same
article, which provides: 'The law shall prohibit monopolisation
of production and the market and shall protect freedom of fair
competition.' It needs to be noted that the sub-chapter titled
"Economic Policy" of Chapter 4 of Part I of the Appendix to the
Republic of Lithuania Law on the Basics of National Security
emphasises that a single investor shall be prohibited from
dominating in an economic sector of strategic importance to
national security;
It also needs to be noted that the Seimas of the Republic of
Lithuania has ratified the Treaty of Lisbon amending the Treaty
on European Union and the Treaty establishing the European
Community, Item a of Paragraph 1 of Article 176a whereof
provides: '1. In the context of the establishment and functioning
of the internal market and with regard for the need to preserve
and improve the environment, Union policy on energy shall aim, in
a spirit of solidarity between Member States, to:
(a) ensure the functioning of the energy market;';
3) whether Item 1 of Paragraph 1 of Article 11 of the Law on
the Nuclear Power Plant, which is set forth in Article 3 of the
Republic of Lithuania Law on Amending Articles 8, 10, 11, and 20
of the Law on the Nuclear Power Plant, which provides that 'the
Government of the Republic of Lithuania implementing the
provisions of Article 10 of this Law shall have the right to
negotiate with the shareholder of the controlling stake in the
public limited liability company VST on the establishment of the
national investor and on the investment of all the shares owned
by that shareholder in the public limited liability company VST,
or part thereof amounting to more than 2/3 of the shares of the
public limited liability company VST carrying more than 2/3 of
votes at the general shareholders' meeting, as well as on the
acquisition of newly issued shares of the national investor', is
not in conflict with the provision of Paragraph 4 of Article 46
of the Constitution of the Republic of Lithuania, which
stipulates: 'The law shall prohibit monopolisation of production
and the market and shall protect freedom of fair competition',
and with the principle of equality of rights entrenched in
Article 29 of the Constitution of the Republic of Lithuania,
since in the course of establishment of the national investor the
state chose, without competition and application of the legal
norms regulating fair competition, the only partner, the public
limited liability company VST, i.e. the state chose this partner
not on the grounds of the Law, and established exclusive rights
of the shareholder of this company, i.e. the Law entrenched
different legal regulation of economic subjects. Under the
Constitution, the state, while regulating economic activity, must
pay heed to the constitutional requirement of equality of rights
of economic entities, which is directly related to the principle
of equal rights of all persons, which is entrenched in Article 29
of the Constitution. Otherwise, the legal regulation of economic
activity would not be considered as one serving the general
welfare of the Nation (Constitutional Court ruling of 13 May
2005)."
3. This petition of the Seimas, the petitioner, was
officially published in the official gazette "Valstybės žinios"
on 1 October 2008 (Official Gazette Valstybės žinios, 2008, No.
113-4291); at the Constitutional Court it was registered on 6
October 2008.
The Constitutional Court
holds that:
1. Under Paragraph 1 of Article 102 and Paragraph 1 of
Article 105 of the Constitution, the investigation of the
compliance of laws and other acts adopted by the Seimas with the
Constitution is attributed to the jurisdiction of the
Constitutional Court.
2. Under Paragraph 1 of Article 106 of the Constitution, the
Government, not less than 1/5 of all the Members of the Seimas,
and the courts, shall have the right to apply to the
Constitutional Court concerning the acts specified in Paragraph 1
of Article 105, i.e. concerning laws and other acts adopted by
the Seimas. Under Paragraph 4 of the same article, the resolution
of the Seimas asking for an investigation into the conformity of
an act with the Constitution shall suspend the validity of the
act.
While construing these provisions in a systemic manner, one
is to hold that the Seimas in corpore has constitutional
empowerments to apply to the Constitutional Court by means of a
resolution and to request that the compliance of a law with the
Constitution be investigated.
3. Under Paragraph 1 of Article 26 (wording of 28 October
2003) of the Law on the Constitutional Court of the Republic of
Lithuania, in cases when the Constitutional Court receives a
resolution of the Seimas wherein it is requested to investigate
whether a law is in compliance with the Constitution, 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.
The corresponding decision of the Constitutional Court
neither approves of nor denies the arguments on which the Seimas,
the petitioner, grounds its position; when adopting such
decisions, the fact of essential significance is whether the
petition of the petitioner is grounded on legal reasoning
(Constitutional Court decisions of 15 December 2006 and 8 January
2008).
4. It needs to be held that, in general, the petition set
forth in Seimas Resolution No. X-1729 "On Applying to the
Constitutional Court of the Republic of Lithuania with a Petition
Requesting to Investigate Whether the Republic of Lithuania Law
on Amending and Supplementing Articles 8, 10, 11, and 20 of the
Law on the Nuclear Power Plant Is Not in Conflict with the
Constitution of the Republic of Lithuania" of 22 September 2008
is grounded on legal reasoning. Although there are deficient
arguments in this petition (for example, reference is made to the
Treaty of Lisbon amending the Treaty on European Union and the
Treaty establishing the European Community, which has not become
effective yet; the doubts regarding the compliance of the
disputed law with the Constitution are inter alia grounded on
provisions of other laws, thus disregarding the doctrinal
provisions formulated by the Constitutional Court whereby the
Constitutional Court, under the Constitution, does not decide the
issues of compatibility or competition between legal acts of the
same legal power), the petition can be accepted for consideration
at the Constitutional Court.
5. Thus, the Seimas, the petitioner, requests to investigate
whether:
- Paragraph 1 (wording of 1 February 2008) of Article 10 of
the Law on the Nuclear Power Plant, which provides for only one
aim of the activity of the national investor"the national
investor shall be an independent private legal entity registered
in the Republic of Lithuania, established for an indefinite
period of time and operating under the laws of the Republic of
Lithuania, the aim of whose activity shall be gaining benefits
for itself and all its shareholders in a socially responsible
manner"and which does not entrench the protection of the rights
of consumers, is not in conflict with Paragraph 5 of Article 46
of the Constitution;
- the provision "the national investor shall be the national
power company managing through its subsidiaries the main part of
the Lithuanian power systemthe electricity transmission and
distribution networks. Seeking to attain the goal of its
activity, the national investor shall participate, on the basis
of private initiative, in implementing in Lithuania the project
of construction of a new nuclear power plant, as well as
constructing, according to the procedure established by the Law
on Electricity and other legal acts, the interconnections of the
power system of the Republic of Lithuania with the power systems
of the Republic of Poland and the Kingdom of Sweden" of Paragraph
1 (wording of 1 February 2008) of Article 10 of the Law on the
Nuclear Power Plant, according to which it is provided to create
the national investor which, as an owner, will concentrate in its
hands the main portion of production of electricity, its
transmission, distribution, export and import, is not in conflict
with Paragraphs 3 and 4 of Article 46 of the Constitution;
- Item 1 of Paragraph 1 of Article 11 (wording of 1 February
2008) of the Law on the Nuclear Power Plant which provides that
"the Government of the Republic of Lithuania implementing the
provisions of Article 10 of this Law shall have the right to
negotiate with the shareholder of the controlling stake in the
public limited liability company VST on the establishment of the
national investor and on the investment of all the shares owned
by that shareholder in the public limited liability company VST,
or part thereof amounting to more than 2/3 of the shares of the
public limited liability company VST carrying more than 2/3 of
votes at the general shareholders' meeting, as well as on the
acquisition of newly issued shares of the national investor", is
not in conflict with Paragraph 1 of Article 29 and Paragraph 4 of
Article 46 of the Constitution.
6. As mentioned, under Paragraph 4 of Article 106 of the
Constitution, the resolution of the Seimas asking for an
investigation into the conformity of an act with the Constitution
shall suspend the validity of the act. Under Paragraph 1 of
Article 107 of the Constitution, a law (or part thereof) of the
Republic of Lithuania may not be applied from the day of official
promulgation of the decision of the Constitutional Court that the
act in question (or part thereof) is in conflict with the
Constitution. While construing these provisions in a systemic
manner, one is to hold that a decision of the Constitutional
Court to accept the petition set forth in a Seimas resolution
requesting to investigate whether a law (or part thereof) is in
conformity with the Constitution, suspends the validity of this
law (or part thereof).
Under Paragraph 2 of Article 26 (wording of 28 October 2003)
of the Law on the Constitutional Court, if the Constitutional
Court adopts a decision to accept a petition for consideration,
the President of the Constitutional Court shall immediately give
an official announcement about it in the official gazette
"Valstybės žinios" ("The News of the State") as well as on the
Internet website of the Constitutional Court; in this
announcement, the President of the Constitutional Court must
state the exact title of the disputed act, the date of its
adoption, and that, in accordance with Article 106 of the
Constitution of the Republic of Lithuania, the validity of the
aforementioned act (part thereof) is suspended from the day of
its official announcement until the ruling of the Constitution
Court concerning this case is published.
Under Paragraph 3 of Article 26 (wording of 28 October 2003)
of the Law on the Constitutional Court, in cases when the
Constitutional Court, having considered a case, adopts a ruling
that the disputed act is not in conflict with the Constitution,
the President of the Constitutional Court shall immediately make
an official announcement about it under procedure established in
the Paragraph 2 of this article; in this announcement, the
President of the Constitutional Court shall state the exact title
of the disputed act, the date of its adoption, the essence of the
ruling of the Constitutional Court concerning this issue, the
date of its adoption, and that the validity of the suspended act
shall be restored from the day that this ruling is published.
7. It needs to be noted that the disputed provisions of
Paragraph 1 (wording of 1 February 2008) of Article 10 and Item 1
of Paragraph 1 of Article 11 (wording of 1 February 2008) of the
Law on the Nuclear Power Plant have already given rise to legal
effects.
The Constitutional Court has held that the fact that the
Constitutional Court accepts the petition of the Seimas, the
petitioner, and the suspension of the validity of a corresponding
legal act, neither quash nor change the said legal effects which
have occurred (Constitutional Court decision of 8 January 2008).
Conforming to Paragraph 1 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 adopted the
following
decision:
To accept the petition set forth in Resolution of the Seimas
of the Republic of Lithuania No. X-1729 "On Applying to the
Constitutional Court of the Republic of Lithuania with a Petition
Requesting to Investigate Whether the Republic of Lithuania Law
on Amending and Supplementing Articles 8, 10, 11, and 20 of the
Law on the Nuclear Power Plant Is Not in Conflict with the
Constitution of the Republic of Lithuania" of 22 September 2008
requesting to investigate whether:
- Paragraph 1 (wording of 1 February 2008) of Article 10 of
the Republic of Lithuania Law on the Nuclear Power Plant, which
provides for only one aim of the activity of the national
investor"the national investor shall be an independent private
legal entity registered in the Republic of Lithuania, established
for an indefinite period of time and operating under the laws of
the Republic of Lithuania, the aim of whose activity shall be
gaining benefits for itself and all its shareholders in a
socially responsible manner"and which does not entrench the
protection of the rights of consumers, is not in conflict with
Paragraph 5 of Article 46 of the Constitution of the Republic of
Lithuania;
- the provision "the national investor shall be the national
power company managing through its subsidiaries the main part of
the Lithuanian power systemthe electricity transmission and
distribution networks. Seeking to attain the goal of its
activity, the national investor shall participate, on the basis
of private initiative, in implementing in Lithuania the project
of construction of a new nuclear power plant, as well as
constructing, according to the procedure established by the Law
on Electricity and other legal acts, the interconnections of the
power system of the Republic of Lithuania with the power systems
of the Republic of Poland and the Kingdom of Sweden" of Paragraph
1 (wording of 1 February 2008) of Article 10 of the Republic of
Lithuania Law on the Nuclear Power Plant, according to which it
is provided to create the national investor which, as an owner,
will concentrate in its hands the main portion of production of
electricity, its transmission, distribution, export and import,
is not in conflict with Paragraphs 3 and 4 of Article 46 of the
Constitution of the Republic of Lithuania;
- Item 1 of Paragraph 1 of Article 11 (wording of 1 February
2008) of the Republic of Lithuania Law on the Nuclear Power Plant
which provides that "the Government of the Republic of Lithuania
implementing the provisions of Article 10 of this Law shall have
the right to negotiate with the shareholder of the controlling
stake in the public limited liability company VST on the
establishment of the national investor and on the investment of
all the shares owned by that shareholder in the public limited
liability company VST, or part thereof amounting to more than 2/3
of the shares of the public limited liability company VST
carrying more than 2/3 of votes at the general shareholders'
meeting, as well as on the acquisition of newly issued shares of
the national investor", is not in conflict with Paragraph 1 of
Article 29 and Paragraph 4 of Article 46 of the Constitution of
the Republic of Lithuania.
This decision of the Constitutional Court is final and not
subject to appeal.
The decision is promulgated in the name of the Republic of
Lithuania.
Justices of the Constitutional Court:
Armanas Abramavičius
Toma Birmontienė
Pranas Kuconis
Kęstutis Lapinskas
Zenonas Namavičius
Egidijus Šileikis
Algirdas Taminskas
Romualdas Kęstutis Urbaitis