THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA
DECISION
ON THE PETITION OF THE VILNIUS REGIONAL ADMINISTRATIVE
COURT, THE PETITIONER, REQUESTING TO INVESTIGATE
WHETHER ARTICLE 4 (WORDINGS OF 4 NOVEMBER 2004, 19 MAY
2005, 17 NOVEMBER 2005, 23 DECEMBER 2005, AND 4 MAY
2006) OF THE REPUBLIC OF LITHUANIA LAW ON STATE SOCIAL
INSURANCE AND ARTICLE 2 (WORDINGS OF 4 NOVEMBER 2004,
19 MAY 2005 AND 17 NOVEMBER 2005) OF THE REPUBLIC OF
LITHUANIA LAW ON STATE SOCIAL INSURANCE PENSIONS ARE
NOT IN CONFLICT WITH THE CONSTITUTION OF THE REPUBLIC
OF LITHUANIA
5 November 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, Ramutė Ruškytė, 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 Vilnius Regional Administrative
Court, the petitioner, requesting to investigate "whether Art. 4
(wordings of 04-11-2004, 19-05-2005, 17-11-2005, 23-12-2005, 04-
05-2006) of the 21-05-1991 Law on State Social Insurance (wording
of 04-11-2004), Art. 2 (wording of 04-11-2004) of the 18-07-1994
Law on State Social Insurance Pensions and Art. 2 (wordings of
19-05-2005 and 17-11-2005) of the 18-07-1994 Law on State Social
Insurance Pensions (wording of 19-05-2005), to the extent that it
is not established that a person who works in several places of
employment, and who, during the accounting period, has paid the
contribution for reception of the main part of the pension (basic
pension) from the income received in a concrete place of
employment, does not have to pay the contributions for the same
accounting period for reception of the main part of the pension
(basic pension) from the income received in the other places of
employment, are not in conflict with Par. 1 of Art. 29 of the
Constitution, the provision of Art. 52 thereof that the state
shall guarantee to citizens the right to receive old age
pensions, Par. 1 of Art. 23 thereof, and the constitutional
principles of justice and a state under the rule of law".
The Constitutional Court
has established:
The Vilnius Regional Administrative Court, the petitioner,
was considering an administrative case. By its ruling the said
court suspended the consideration of the case and applied to the
Constitutional Court with a petition requesting to investigate
"whether Art. 4 (wordings of 04-11-2004, 19-05-2005, 17-11-2005,
23-12-2005, 04-05-2006) of the 21-05-1991 Law on State Social
Insurance (wording of 04-11-2004), Art. 2 (wording of 04-11-2004)
of the 18-07-1994 Law on State Social Insurance Pensions and Art.
2 (wordings of 19-05-2005 and 17-11-2005) of the 18-07-1994 Law
on State Social Insurance Pensions (wording of 19-05-2005), to
the extent that it is not established that a person who works in
several places of employment, and who, during the accounting
period, has paid the contribution for reception of the main part
of the pension (basic pension) from the income received in a
concrete place of employment, does not have to pay the
contributions for the same accounting period for reception of the
main part of the pension (basic pension) from the income received
in the other places of employment, are not in conflict with Par.
1 of Art. 29 of the Constitution, the provision of Art. 52
thereof that the state shall guarantee to citizens the right to
receive old age pensions, Par. 1 of Art. 23 thereof, and the
constitutional principles of justice and a state under the rule
of law".
The Constitutional Court
holds that:
I
1. The Vilnius Regional Administrative Court, the
petitioner, requests to investigate whether Article 4 (wordings
of 4 November 2004, 19 May 2005, 17 November 2005, 23 December
2005, and 4 May 2006) of the Law on State Social Insurance and
Article 2 (wordings of 4 November 2004, 19 May 2005 and 17
November 2005) of the Law on State Social Insurance Pensions,
both to the extent that, according to the petitioner, it is not
established that a person who works in several places of
employment, and who, during the accounting period, has paid the
contribution for reception of the main part of the pension (basic
pension) from the income received in a concrete place of
employment, does not have to pay the contributions for the same
accounting period for reception of the main part of the pension
(basic pension) from the income received in the other places of
employment, are not in conflict with Paragraph 1 of Article 23,
Paragraph 1 of Article 29 of the Constitution, the provision of
Article 52 thereof that the state shall guarantee to citizens the
right to receive the old age pension, and with the constitutional
principles of justice and a state under the rule of law.
2. The petition of the Vilnius Regional Administrative
Court, the petitioner, is substantiated by the following
arguments.
The disputed Article 4 of the Law on State Social Insurance
and Article 2 of the Law on State Social Insurance Pensions do
not establish explicitly that a person who works in several
places of employment, and who, during the accounting period, has
paid the contribution for reception of the main part of the
pension (basic pension) from the income received in a concrete
place of employment, does not have to pay the contributions for
the same accounting period for reception of the main part of the
pension (basic pension) from the income received in the other
places of employment. Since these legal acts do not contain the
exceptionabsence of the obligation to pay the contribution for
reception of the main part of the pension (basic pension) for the
same accounting periodall persons must pay the contributions for
reception of the main part of the pension (basic pension) for the
same period in all places of employment, although the main
(basic) pension to all persons does not depend on whether these
persons work in one or several places of employment.
The petitioner has doubts whether the failure to establish
such legal regulation in the said legal acts means that "they
contain legal gaps, which could be treated as legislative
omission, i.e. such legal gap that is prohibited by the
Constitution".
According to the petitioner, the provisions entrenched in
Article 4 of the Law on State Social Insurance and Article 2 of
the Law on State Social Insurance Pensions "are in part
overlapping, i.e. they virtually regulate the same legal
relations". In the opinion of the petitioner, "it is in these
articles (which define the group of persons who are compulsory
insured by social insurance of pensions) of the said laws, that
one should establish that a person, who works in several places
of employment, after he, during the accounting period, has paid a
contribution for reception of the main part of the pension (basic
pension) from the income received in one place of employment does
not have to pay contributions for reception of the main part of
the pension (basic pension) from the income received in other
places of employment for the same accounting period".
3. It needs to be noted that it is clear from the petition
of the petitioner by which he applied to the Constitutional Court
that in the administrative case a dispute is being settled
regarding payment of contributions by a person (who worked in a
closed joint-stock company, where he was insured by state social
insurance and where the same person, alongside, conducted
individual activity (he is a self-employed person)) to social
insurance of pensions from the income received from such
activity. The annual sum of income received by this person from
the individual activity exceeded the sum of 12 minimum monthly
salaries computed under procedure established by law.
Thus, in the administrative case considered by the Vilnius
Regional Administrative Court, the petitioner, the dispute arose
not regarding all persons who, according to the petitioner, work
in several places of employment and who in one place of
employment pay contributions for reception of the main part of
the pension (basic pension) for a certain account period, and who
have a duty to pay one more time for the same accounting period,
but in the said there is a dispute only regarding a person, who
works under employment contract and at the same time conducts
individual activity (he is a self-employed person). It is also
clear that the dispute arose not regarding the payment of
contributions of social insurance, according to the petitioner,
from all income received in other places of employment, but only
from the annual sum of the income of a self-employed person,
which were received while conducting individual activity (in the
capacity of a self-employed person) and which exceed the sum of
12 minimum monthly salaries.
Thus, the petitioner requests investigation into the
compliance of Article 4 (wordings of 4 November 2004, 19 May
2005, 17 November 2005, 23 December 2005, and 4 May 2006) of the
Law on State Social Insurance and Article 2 (wordings of 4
November 2004, 19 May 2005 and 17 November 2005) of the Law on
State Social Insurance Pensions with the Constitution in the
aspects regarding which there was no dispute in the case
considered by him, and in the course of settlement of the said
case it would not be necessary to apply the parts of these laws
to the extent specified by the petitioner.
II
1. The Vilnius Regional Administrative Court, the
petitioner, disputes inter alia the compliance of Article 4
(wordings of 4 November 2004, 19 May 2005, 17 November 2005, 23
December 2005, and 4 May 2006) of the Law on State Social
Insurance (to corresponding extent) with the Constitution.
The following was established in Article 4 (wording of 4
November 2004) of the Law on State Social Insurance:
"1. The following persons shall be covered on a compulsory
basis by social insurance of the types specified in Article 3 of
this Law:
1) the persons employed under employment contracts with
legal or natural persons, notary candidates (assessors) as well
as the persons receiving remuneration for work and holding
elected posts in elected organisations, appointed to region,
town, district and local electoral and referendum commissions and
receiving remuneration for work;
2) the state politicians, judges, and state officials
indicated in the Law on the Remuneration of State Politicians,
Judges and State Officials and the Law on the State Service (with
the exception of the state servants indicated in Paragraph 2 of
this Article) as well as the persons receiving remuneration for
work and appointed to office by the Seimas, the Speaker of the
Seimas, the President of the Republic or the Prime Minister.
2. The following persons shall be covered on a compulsory
basis by social insurance of the types specified in Items 1 and 3
of Article 3 of this Law:
1) officers of the system of the interior service, the
system of the State Security Department, the Special
Investigation Service and the Prisons Department under the
Ministry of Justice of the Republic of Lithuania as well as the
officials of the establishments and enterprises subordinate
thereto;
2) servicemen in the professional military service of the
system of national defence and the statutory servants in the
civil national defence service at the Second Investigation
Department under the Ministry of National Defence;
3) the spouses of state servants and servicemen in
professional military service who have not attained the
pensionable age and do not receive the income related to
employment relationsduring a period when they reside abroad
together with a state servant, where the state servant has been
transferred to a post at a diplomatic mission, consular post of
the Republic of Lithuania, mission of the Republic of Lithuania
at an international organisation;
4) the servicemen fulfilling mandatory initial military
service in the armed forces of the Republic of Lithuania and the
persons fulfilling alternative national defence service.
3. Self-employed persons, with the exception of the persons
engaged in individual activities under business certificates,
shall be covered on a compulsory basis only by pension social
insurance to receive the main and supplementary parts of a
pension. These persons shall be insured on a compulsory basis to
receive the supplementary part of the pension where the annual
sum of their income as calculated by deducting the sum of income
tax for the tax year from the taxable profit calculated according
to the Law on Income Tax or the annual sum of income as
calculated by deducting the sum of income tax for the tax year
from the taxable income calculated according to the Law on
Personal Income Tax is equal to or exceeds the sum of 12 minimum
monthly salaries. Where the persons listed in this paragraph are
covered by pension social insurance to receive the supplementary
part of a pension, they may take out insurance for the pension
benefits provided for in the Law on the Accumulation of Pensions.
4. The following persons shall be covered on a compulsory
basis by pension social insurance to receive only the main part
of a pension:
1) the persons engaged in individual activities under a
business certificate;
2) at the choice of a family, a mother (adoptive mother) or
a father (adoptive father) who actually raises a child or a
child's guardian raising a child under 3 years of age;
3) clergymen of traditional and other religious communities
and associations recognised by the State as well as the nuns and
monks working only in a convent and monastery;
4) one of the parents (adoptive parents) of a totally
disabled person, or a person who has been declared, in accordance
with the established procedure, a guardian or custodian of the
totally disabled person and who nurses the said totally disabled
person at home.
5. The following persons shall be covered on a compulsory
basis only by social insurance of occupational accidents and
occupational diseases:
1) pupils of vocational schools, students of post-secondary
and higher schools as well as the persons posted by local labour
exchange offices for vocational training or vocational
rehabilitationduring their vocational practice at an
establishment or enterprise;
2) the persons receiving remuneration for work and placed in
social and psychological rehabilitation institutionsduring the
period of their work;
3) the persons sentenced to deprivation of freedomduring
the period of their work.
6. The persons permanently resident in the Republic of
Lithuania or an EU Member State who are at least 16 years of age
may take out voluntary pension social insurance to receive the
main or the main and supplementary part of a pension as well as
sickness and maternity social insurance to receive sickness and
maternity benefits during a period when they are not compulsorily
covered by the social insurance of these types or are
compulsorily covered by (have taken out) pension social insurance
in accordance with the procedure laid down by laws to receive
only the main part of the pension. The procedure for paying
social insurance contributions and for concluding agreements
shall be laid down by the Government or an institution authorised
by it.
7. With the exception of the persons who have attained the
pensionable age, the persons who are compulsorily covered by
pension social insurance to receive the main and supplementary
part of a pension shall have the right at their own choice to
accumulate a portion of the pension social insurance contribution
with pension accumulation companies under the Law on Reform of
the Pension System and the Law on the Accumulation of Pensions."
2. Although Article 4 (wording of 4 November 2004) of the
Law on State Social Insurance was amended and supplemented more
than once, the legal regulation established therein, whereby
self-employed persons (with the exception of the persons engaged
in individual activities under business certificates) are
attributed to the persons who are covered on a compulsory basis
by pension social insurance to receive the main and supplementary
parts of a pension (the appearance of the insurance for the
supplementary part of the pension is related with the
corresponding annual sum of the income received by them) which is
computed in the manner established in this article), remained
unchanged.
Article 4 (wording of 4 November 2004 with subsequent
amendments and supplements) of the Law on State Social Insurance
was (and is) titled "Persons Covered by Social Insurance
According to the Types of Social Insurance", this article was
(and is) designed for the regulation of the relations linked with
the establishment of groups of persons who are who are covered on
a compulsory basis by pension social insurance according to the
types of social insurance (Paragraph 3 of this article indicates
the group of self-employed persons (with the exception of the
persons engaged in individual activities under business
certificates) and, alongside, it is established that these
persons are covered only by one type of social insurancepension
social insurance (for the main and supplementary parts of a
pension), also the conditions are pointed out under which such
persons are insured for the supplementary part of a pension.
Thus, this article disputed by the petitioner is designed for
definition of groups of persons insured by state social insurance
and it does not regulate situations, where persons, inter alia
self-employed ones, are permitted, when they have other insured
income, not to pay social insurance contributions (for the main
and supplementary parts of a pension) from the income from their
individual activity.
It needs to be noted that the petitioner does not dispute
the fact that certain groups of persons, inter alia groups of
self-employed persons, which, under the Law on State Social
Insurance, are insured by social insurance on a compulsory basis,
and which are pointed out in Article 4 (wordings of 4 November
2004, 19 May 2005, 17 November 2005, 23 December 2005, and 4 May
2006) of this law, have to be insured by state social insurance.
The petitioner disputes something which, according to the
petitioner, does not exist in this article, but which, in the
opinion of the petitioner, should have been established.
3. The relations linked with the establishment of non-
payment of social insurance contributions (the establishment of
income and situations where social insurance contributions are
not computed) are regulated in Article 8 titled "Income on Which
and Cases When Social Insurance Contributions Shall Not Be
Calculated" of the Law on State Social Insurance, about which the
petitioner is silent. The following was established in Paragraph
2 (wording of 4 November 2004) of the said article:
"2. The persons indicated in Paragraph 3 of Article 4 of
this Law shall be allowed not to pay social insurance
contributions (this period will not be included in social
insurance record) only where the annual aggregate amount of
income of these persons as calculated by deducting the aggregate
amount of income (personal income) tax for the tax year from the
taxable income (personal income) calculated under the Law on
Income Tax (the Law on Personal Income Tax) is less than the sum
of 12 minimum monthly salaries and these persons:
1) receive the social insurance old-age or social insurance
work invalidity pension as awarded under the Law on State Social
Insurance Pensions;
2) receive the social assistance pension or compensation,
with the exception of the orphan's social assistance pension
awarded under the Law on State Social Assistance Benefits;
3) receive the old-age or work invalidity pension related to
social insurance relations (social insurance pension) from an EU
Member State and from a state with which the Republic of
Lithuania has concluded an international agreement on social
security;
4) are in imprisonment institutions or have been imposed, by
a court's judgement in accordance with the procedure laid down by
the Criminal Code, compulsory medical treatment measures of in-
patient observation or reformative sanctions in specialised
mental health care institutions;
5) have registered the status of an individual enterprise or
partnership in liquidation in the Legal Entities Register, and
all the employees of the individual enterprise or partnership
have been dismissed from work;
6) are compulsorily covered by social insurance under laws
of the Republic of Lithuania;
7) have the obligatory social insurance record to receive
the social insurance old-age pension under the Law on State
Social Insurance Pensions."
4. The cited Paragraph 2 of Article 8 of the Law on State
Social Insurance makes reference to Paragraph 3 (to one of the
groups of personsself-employed personsspecified in this
paragraph) of Article 4 of this law, i.e. to the article the
investigation of the compliance of which (to the corresponding
extent) with the Constitution is requested by the petitioner.
Thus, it is clear from this legal regulation that the
explicit provision, which consolidates the exception when self-
employed persons (save those engaged in individual activities
under business certificates) were allowed not to pay social
insurance contributions, was in Paragraph 2 (wording of 4
November 2004) of Article 8 of the disputed Law on State Social
Insurance. It was established in said Paragraph 2 (wording of 4
November 2004) of Article 8 of the law that self-employed persons
(save those engaged in individual activities under business
certificates) are allowed not pay social insurance contributions
"only where" the annual aggregate amount of income of these
persons as calculated by deducting the aggregate amount of income
(personal income) tax for the tax year from the taxable income
(personal income) calculated under Paragraph 2 of Article 8 is
less than the sum of 12 minimum monthly salaries and these
persons meet one or several conditions indicated in Paragraph 2
of Article 8 of the law, inter alia they are compulsorily covered
by social insurance under laws of the Republic of Lithuania (Item
6 of Paragraph 2 of Article 8).
The Law on State Social Insurance (wording of 4 November
2004) was amended and/or supplemented more than once, however,
its essence (in the aspect where the petitioner saw the
constitutional problem) has remained unchanged: the self-employed
persons (save those engaged in individual activities under
business certificates), who are specified in Paragraph 2 of
Article 8 (wordings of 4 November 2004, 19 May 2005, 17 November
2005, 23 December 2005, 3 April 2007, and 20 December 2007) of
the Law on State Social Insurance, and whose annual aggregate
amount of insured income computed under this law is less that the
sum of 12 minimum monthly salaries, and who meet one or several
conditions indicated in Paragraph 2 of Article 8 of the law,
inter alia they are compulsorily covered by social insurance
under laws of the Republic of Lithuania, are allowed not to pay
state social insurance contributions in order to receive the main
and supplementary parts of the pension.
It needs to be held that the relations (where self-employed
persons (save those engaged in individual activities under
business certificates) are allowed not to pay social insurance
contributions, when they are compulsorily covered by social
insurance under laws of the Republic of Lithuania) which,
according to the petitioner, are not regulated in Article 4
(wordings of 4 November 2004, 19 May 2005, 17 November 2005, 23
December 2005, and 4 May 2006) of the Law on State Social
Insurance, and the non-regulation of these relations, according
to the petitioner, is a legal gap prohibited by the Constitution,
i.e. it is this that the Constitutional Court is requested to
investigate, are regulated to the corresponding extent in Item 6
of Paragraph 2 of Article 8 (wording of 4 November 2004 with
subsequent amendments and/or supplements) of the said law.
In his petition the petitioner keeps silent as regards the
legal regulation established in Article 8 (wording of 4 November
2004 with subsequent amendments and/or supplements) of the Law on
State Social Insurance and does not discuss at all the relation
of this legal regulation (about which the petitioner keeps
silent) with the legal regulation entrenched in Article 4
(wording of 4 November 2004 with subsequent amendments and/or
supplements) of the Law on State Social Insurance, which is
disputed by the petitioner.
When account is taken of the circumstances set forth, there
are grounds to hold that the petition of the Vilnius Regional
Administrative Court, the petitioner, requesting to investigate
the compliance (to the extent specified by the petitioner) of
Article 4 (wording of 4 November 2004 with subsequent amendments
and/or supplements) of the Law on State Social Insurance with the
Constitution, is grounded on the reasoning other than that
explicitly pointed out by the petitioner, thus, from this
standpoint this request of the petitioner is fictitious. Under
such circumstances this request of the petitioner is to be
assessed as not falling within the jurisdiction of the
Constitutional Court.
5. The Constitutional Court has held that a legal gap, inter
alia legislative omission, always means that the legal regulation
of corresponding social relations is established neither
explicitly nor implicitly, neither in the said legal act (part
thereof) nor in any other legal acts, even though there exists a
need for legal regulation of these social relations, while the
said legal regulation, in case of legislative omission, must be
established, while heeding the imperatives of the consistency and
inner uniformity of the legal system stemming from the
Constitution and taking account of the content of these social
relations, precisely in that legal act (precisely in that part
thereof), since this is required by a certain legal act of higher
power, inter alia the Constitution itself (Constitutional Court
decision of 8 August 2006).
6. The petitioner disputed the compliance of Article 2
(wordings of 4 November 2004, 19 May 2005, and 17 November 2005)
of the Law on State Social Insurance Pensions with the
Constitution to the same extent as he disputed the compliance of
Article 4 (wordings of 4 November 2004, 19 May 2005, 17 November
2005, 23 December 2005, and 4 May 2006) of the Law on State
Social Insurance with the Constitution. He requests to
investigate the compliance of Article 2 of the Law on State
Social Insurance Pensions with the Constitution and, alongside,
indicates that the provisions entrenched in Article 4 of the Law
on State Social Insurance and Article 2 of the Law on State
Social Insurance Pensions "are in part overlapping, i.e. they
virtually regulate the same legal relations".
The following was established in Article 2 (wording of 4
November 2004) of the Law on State Social Insurance Pensions:
"The following persons shall be covered, on a compulsory
basis, by state social pension insurance:
1) the persons employed under employment contracts with
legal or natural persons, notary candidates (assessors), the
persons receiving remuneration for work and holding elected posts
in elected organisations on the basis of membership as well as
the persons receiving remuneration for work and appointed to
region, town, district and local electoral and referendum
commissions;
2) the state politicians, judges, state officials and civil
servants indicated in the Law on the Remuneration of State
Politicians, Judges and State Officials and the Law on the State
Service (with the exception of the state servants indicated in
Items 3 and 5 of this Paragraph) as well as the persons receiving
remuneration for work and appointed by the Seimas, the Speaker of
the Seimas, the President of the Republic or the Prime Minister;
3) officers of the system of the internal service, the
Special Investigation Service and the Prisons Department under
the Ministry of Justice of the Republic of Lithuania as well as
the officials of the establishments and enterprises subordinate
thereto;
4) servicemen in the professional military service of the
system of national defence and the statutory servants in the
civil national defence service at the Second Investigation
Department under the Ministry of National Defence;
5) officers of the State Security Department system;
6) unemployed spouses of civil servants and servicemen in
the professional military service who are not in the old-age
retirement groupduring a period when they reside abroad together
with a state servant or a serviceman in the professional military
service who works or fulfils military service at a diplomatic
mission, consular post of the Republic of Lithuania or mission of
the Republic of Lithuania at an international organisation;
7) the servicemen fulfilling mandatory initial military
service in the armed forces of the Republic of Lithuania and
servicemen fulfilling alternative national defence service;
8) owners of individual enterprises, members of general
partnerships, members of limited partnerships as well as the
persons who are engaged in individual activities as defined on
the Law on Personal Income Tax, with the exception of the
individual activities exercised under a business certificate;
9) the persons engaged in individual activities and holding
a business certificate;
10) at the choice of a family, a mother (adoptive mother) or
a father (adoptive father) who actually raises a child or a
child's guardian raising a child under 3 years of age;
12) clergymen of traditional and other religious communities
and associations recognised by the State as well as the nuns and
monks working only in a convent and monastery;
13) one of the parents (adoptive parents) of a person of
complete disability, where the parent is not in the old-age
retirement group, or a person who has been declared, in
accordance with the established procedure, a guardian or
custodian of the completely disabled person and who nurses the
said person at home.
The persons indicated in Item 7 as well as Items 10-12 of
Paragraph 1 of this Article shall be covered, on a compulsory
basis, by state social pension insurance with state funds in
accordance with the procedure laid down by the Government of the
Republic of Lithuania or an institution authorised by it. The
persons indicated in Item 13 of Paragraph 1 of this Article shall
be insured, on a compulsory basis, with state funds only where
they do not receive a state social insurance pension, state
pension, social assistance pension, social pension or social
assistance pension for the nursing of invalids at home to which
they are entitled.
Other persons may be covered by state social pension
insurance on a voluntary basis at the administration
establishments of the State Social Insurance Fund effecting this
insurance in accordance with the procedure laid down by the
Government."
7. Article 2 (wording of 4 November 2004) of the Law on
State Social Insurance Pensions was amended more than once, but
Item 8 of Paragraph 1 of the said article, wherein the group of
self-employed persons was established, has not been amended or
supplemented.
Article 2 (wordings of 4 November 2004, 19 May 2005, and 17
November 2005) of the Law on State Social Insurance Pensions,
whose compliance (to the corresponding extent) with the
Constitution is disputed by the petitioner, established
previously and establishes at present the groups of persons who
are covered by state pension social insurance, but not the
exceptions when it is allowed not to pay social insurance
contributions (the exceptions when it is allowed not to pay
social insurance contributions are established, as mentioned, in
Article 8 (wording of 4 November 2004 with subsequent amendments
and/or supplements) of the Law on State Social Insurance). The
petitioner does not dispute the fact that certain groups of
persons, inter alia groups of self-employed persons, which are
covered on a compulsory basis by state pension social insurance
under the Law on State Social Insurance Pensions (wording of 4
November 2004 with subsequent amendments and supplements), in
general should not be covered by state social pension insurance.
The petitioner disputes something which, according to the
petitioner, does not exist in this article, but which, in the
opinion of the petitioner, should have been established.
8. The Constitutional Court has held that in the cases when
the petitioner disputes the fact that the law or another disputed
legal act (part thereof) indicated by the petitioner has not
established certain legal regulation, but the said legal
regulation under the Constitution (and if a substatutory legal
act (part thereof) of the Seimas, the Government and the
President of the Republic is being disputed, then also under the
laws) need not be established in that particular disputed legal
act (part thereof), the Constitutional Court holds that in the
case on the request of the petitioner the matter of investigation
is absent (Constitutional Court decisions of 6 May 2003, 13 May
2003, ruling of 13 December 2004, decision of 8 August 2006).
It has been held in this decision that the relations (where
self-employed persons (save those engaged in individual
activities under business certificates) are allowed not to pay
social insurance contributions, when they are compulsorily
covered by social insurance under laws of the Republic of
Lithuania) which, according to the petitioner, are not regulated
in Article 4 (wordings of 4 November 2004, 19 May 2005, 17
November 2005, 23 December 2005, and 4 May 2006) of the Law on
State Social Insurance, and the non-regulation of these
relations, according to the petitioner, is a legal gap prohibited
by the Constitution, i.e. it is this that the Constitutional
Court is requested to investigate, are regulated to the
corresponding extent in Item 6 of Paragraph 2 of Article 8
(wording of 4 November 2004 with subsequent amendments and/or
supplements) of the said law.
It needs to be held that there are not any preconditions for
a statement that the exception where self-employed persons (save
those engaged in individual activities under business
certificates), when they have insured income while working under
an employment contract, are allowed not to pay social insurance
contributions for reception of the main part of the pension
(basic pension) must be established, under the Constitution,
precisely in Article 4 (wordings of 4 November 2004, 19 May 2005,
17 November 2005, 23 December 2005, and 4 May 2006) of the Law on
State Social Insurance and Article 2 (wordings of 4 November
2004, 19 May 2005 and 17 November 2005) of the Law on State
Social Insurance Pensions, which are disputed by the petitioner.
9. Having held that the legal regulation (which was
specified by the petitioner in his petition and which, according
to him, was not established), under the Constitution, does not
have to be established precisely in Article 4 (wordings of 4
November 2004, 19 May 2005, 17 November 2005, 23 December 2005,
and 4 May 2006) of the Law on State Social Insurance and Article
2 (wordings of 4 November 2004, 19 May 2005 and 17 November 2005)
of the Law on State Social Insurance Pensions, and that the legal
regulation (the legal gap pointed out by the petitioner) to some
extent is established in Article 8 (wordings of 4 November 2004,
19 May 2005, 17 November 2005, 23 December 2005, 3 April 2007,
and 20 December 2007) of the Law on State Social Insurance, one
is to hold that the matter of the investigation is absent in the
petition of the petitioner.
The fact that the matter of investigation is absent in the
petition of the petitioner means that the petition does not fall
under the jurisdiction of the Constitutional Court
(Constitutional Court decisions of 6 May 2003, 13 May 2003,
ruling of 13 May 2004, decision of 8 August 2006).
It has also been held in this decision that the petition of
the Vilnius Regional Administrative Court, the petitioner,
requesting to investigate the compliance (to the extent specified
by the petitioner) of Article 4 (wording of 4 November 2004 with
subsequent amendments and/or supplements) of the Law on State
Social Insurance with the Constitution, is grounded on the
reasoning other than that explicitly pointed out by the
petitioner, thus, from this standpoint this request of the
petitioner is fictitious. Under such circumstances this request
of the petitioner is to be assessed as not falling within the
jurisdiction of the Constitutional Court.
Under Item 2 of Paragraph 1 of Article 69 of the
Constitution, by a decision, the Constitutional Court shall
refuse to consider petitions to investigate the compliance of a
legal act with the Constitution, if the consideration of the
petition does not fall under the jurisdiction of the
Constitutional Court.
10. Taking account of the arguments set forth, one is to
hold that there are grounds to refuse to consider the petition of
the Vilnius Regional Administrative Court, the petitioner,
requesting to investigate whether Article 4 (wordings of 4
November 2004, 19 May 2005, 17 November 2005, 23 December 2005,
and 4 May 2006) of the Law on State Social Insurance and Article
2 (wordings of 4 November 2004, 19 May 2005 and 17 November 2005)
of the Law on State Social Insurance Pensions, both to the extent
that, according to the petitioner, it is not established that a
person who works in several places of employment, and who, during
the accounting period, has paid the contribution for reception of
the main part of the pension (basic pension) from the income
received in a concrete place of employment, does not have to pay
the contributions for the same accounting period for reception of
the main part of the pension (basic pension) from the income
received in the other places of employment, are not in conflict
with Paragraph 1 of Article 23, Paragraph 1 of Article 29 of the
Constitution, the provision of Article 52 thereof that the state
shall guarantee to citizens the right to receive the old age
pension, and with the constitutional principles of justice and a
state under the rule of law.
III
It needs to be noted that the Constitutional Court has
already considered the compliance of corresponding articles of
the Law on State Social Insurance, inter alia Paragraph 4 (which
contained an exception when self-employed persons were allowed
not to pay social insurance contributions) of Article 34 (wording
of 4 July 2002) and Paragraph 2 of Article 8 (wording of 4
November 2004) thereof, with the Constitution.
On 26 September 2007, the Constitutional Court adopted the
Ruling "On the compliance of Paragraph 3 of Article 4 (wording of
4 November 2004), Paragraph 2 of Article 8 (wording of 4 November
2004) and Paragraphs 3 and 4 (wordings of 4 July 2002 and 7
October 2003) of Article 34 of the Republic of Lithuania Law on
State Social Insurance with the Constitution of the Republic of
Lithuania", in which it inter alia recognised that the provision
"it is permitted that the state social insurance contributions
<
> be not paid (and this period will not be included in the
state social insurance period) only in the cases when the annual
sum of the income of the owners of individual (personal)
enterprises, tenants of individual (personal) enterprises,
advocates, assistants of advocates, members of general
partnerships, actual members of commandite partnerships,
calculated from the taxed income that is calculated under the Law
on Income Tax and by subtracting the sum of the tax of the income
of tax year, while the annual sum of the income of notaries,
calculated from the taxed income that is calculated on the basis
of the Provisional Law on Income Tax of Natural Persons, by
subtracting the tax sum of the tax of the income of natural
persons of the tax year, is smaller than 12 minimum monthly
salaries, and the said persons are: <
> (7) insured by state
social insurance under laws of the Republic of Lithuania" of
Paragraph 4 (wording of 4 July 2002) of Article 34 of the Law on
State Social Insurance and the provision "the persons indicated
in Paragraph 3 of Article 4 of this Law shall be allowed not to
pay social insurance contributions (this period will not be
included in social insurance period) only where the annual sum of
income of these persons as calculated by deducting the sum of
(personal) income tax for the tax year from the taxable
(personal) income calculated under the Law on Income Tax (the Law
on Personal Income Tax) is less than the sum of 12 minimum
monthly salaries and these persons: (1) receive the social
insurance old age or social insurance work disability pension as
awarded under the Law on State Social Insurance Pensions" of
Paragraph 2 of Article 8 (wording of 4 November 2004) of the same
law were not in conflict with the Constitution.
The legal regulation, which was investigated by the
Constitutional Court and which was consolidated in the provision
of Paragraph 2 of Article 8 (wording of 4 November 2004) of the
Law on Social Insurance, whereby self-employed persons (with the
exception of the persons engaged in individual activities under
business certificates) are allowed not to pay social insurance
contributions only in one case, i.e. when their income from
individual activity was less than the sum of 12 minimum monthly
salaries (computed in the manner established in the law), was
recognised as being not in conflict with the Constitution and is
valid at present.
2. It has been mentioned that Paragraph 2 of Article 8
(wording of 4 November 2004) of the Law on State Social Insurance
inter alia provides that "the persons indicated in Paragraph 3 of
Article 4 of this Law shall be allowed not to pay social
insurance contributions (this period will not be included in
social insurance record) only where the annual aggregate amount
of income of these persons as calculated by deducting the
aggregate amount of income (personal income) tax for the tax year
from the taxable income (personal income) calculated under the
Law on Income Tax (the Law on Personal Income Tax) is less than
the sum of 12 minimum monthly salaries and these persons <
> are
compulsorily covered by social insurance under laws of the
Republic of Lithuania".
3. If one compares the provision entrenched in Paragraph 2
of Article 8 (wording of 4 November 2004 with subsequent
amendments and supplements) of the Law on State Social Insurance
(whereby the duty of a corresponding self-employed person (with
the exception of the persons engaged in individual activities
under business certificates) to pay state social insurance
contributions (inter alia for reception of the main and
supplementary parts of a pension) depends on the amount of the
income insured by state social insurance and, in case he is in a
certain legal situation, it depends on the fact whether he met
one or several conditions specified in Paragraph 2 of Article 8
(wording of 4 November 2004 with subsequent amendments and
supplements) of the Law on State Social Insurance), about which
the Vilnius Regional Administrative Court, the petitioner, keeps
silent, with the provision entrenched in Paragraph 4 of Article
34 (wording of 4 July 2002) of the Law on State Social Insurance,
which was investigated by the Constitutional Court, it is clear
that these both provisions have entrenched an analogous principle
when it is allowed not to pay social insurance contributions.
Both, under the legal regulation which was in force earlier, and
that which is in force at present, self-employed persons (with
the exception of the persons engaged in individual activities
under business certificates) are allowed not to pay social
insurance contributions (for reception of the main and
supplementary parts of a pension) only in case where the annual
sum of the income of these persons (which is computed in the
manner established in the law) is smaller than 12 minimum monthly
salaries, when they are in a certain legal situation, i.e. they
meet one or several conditions specified in the law, inter alia
whether they are compulsorily covered by social insurance under
laws of the Republic of Lithuania.
4. In this context it also needs to be mentioned that the
petitioner, while disputing the compliance of Article 4 (wordings
of 4 November 2004, 19 May 2005, 17 November 2005, 23 December
2005, and 4 May 2006) of the Law on State Social Insurance with
the Constitution, refers inter alia to various acts of the
Constitutional Court in which the official constitutional
doctrine regarding social security was formulated, he points out
some fragments of this doctrine, however, he does not take
account of the provisions, which are of utmost importance in the
context of the considered petition and which were formulated in
the Constitutional Court ruling of 26 September 2007, as, for
instance:
- the legal regulation should create preconditions to
distribute, by taking account inter alia of the constitutional
principle of solidarity, the corresponding burden that has fallen
upon the state among members of society. The duty of the person
to pay state social insurance contributions is linked with
reception of insured income from active economic activitiesfrom
labour relations or individual activityand such a duty appears
after one starts to work provided from the corresponding economic
activities the insured income provided for in the law is
received.
- the main part of the state social insurance old age
pension is the same to all recipients of pensions, who have the
state social insurance pension period, which is established by
the law and which is necessary for the old age pension: the main
part of the state social insurance old age pension performs the
function of redistribution of income or that of equalling the
sizes of pensions, it permits to implement the solidarity
principle, while the supplementary part of the state social
insurance old age pension depends on the state social insurance
period of the person and the income from which state social
insurance contributions were paid; the purpose of this part of
the pension is to relate the income receive by the person at his
old age with his former income from work;
- while the duty is established to working persons (those
who pursue active economic activities) to pay state social
insurance contributions, various conditions are possible, which
determine the appearance of this duty, as well as various
criteria defining these conditions are possible. It goes without
saying, it is also possible to relate the payment of state social
insurance contributions with the fact that the person receives
the insured income and it is possible to establish, by means of a
law, the corresponding minimum size of such income; this size can
also be equal to the minimum monthly salary.
In this context it needs to be mentioned that the petitioner
himself makes reference to the constitutional doctrine provision
"there are two groups of working persons: those who must pay
state social insurance contributions and those who are exempted
from state social insurance contributions. These persons are
grouped on the objective basis, which is the size of the received
insured income. Such grouping neither discriminates anyone, nor
establishes any privileges", upon which the Constitutional Court
grounded inter alia the conformity of the provision of the law,
whereby self-employed persons (with the exception of the persons
engaged in individual activities under business certificates),
who have insured income, are allowed not to pay social insurance
contributions only in one case established by the law, where the
annual sum of the income is smaller than 12 minimum monthly
salaries, with the Constitution.
Conforming to Paragraphs 3 and 4 of Article 22, Article 28,
Item 2 of Paragraph 1 of Article 69, and Paragraph 2 of Article
69 of the Law on the Constitutional Court of the Republic of
Lithuania, the Constitutional Court of the Republic of Lithuania
has adopted the following
decision:
To refuse to accept the petition of the Vilnius Regional
Administrative Court, the petitioner, requesting to investigate
whether Article 4 (wordings of 4 November 2004, 19 May 2005, 17
November 2005, 23 December 2005, and 4 May 2006) of the Republic
of Lithuania Law on State Social Insurance and Article 2
(wordings of 4 November 2004, 19 May 2005 and 17 November 2005)
of the Republic of Lithuania Law on State Social Insurance
Pensions, both to the extent that, according to the petitioner,
it is not established that a person who works in several places
of employment, and who, during the accounting period, has paid
the contribution for reception of the main part of the pension
(basic pension) from the income received in a concrete place of
employment, does not have to pay the contributions for the same
accounting period for reception of the main part of the pension
(basic pension) from the income received in the other places of
employment, are not in conflict with Paragraph 1 of Article 23,
Paragraph 1 of Article 29 of the Constitution of the Republic of
Lithuania, the provision of Article 52 thereof that the state
shall guarantee to citizens the right to receive the old age
pension, and with the constitutional principles of justice and a
state under the rule of law.
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
Ramutė Ruškytė
Egidijus Šileikis
Algirdas Taminskas
Romualdas Kęstutis Urbaitis