Case No. 19/06-20/06
THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA
RULING
ON THE COMPLIANCE OF ITEM 34 OF THE LICENSING RULES FOR
BUYING-UP SCRAP AND WASTE OF NON-PRECIOUS METALS MEANT
FOR REALISATION (WORDING OF 31 AUGUST 2004) APPROVED BY
GOVERNMENT OF THE REPUBLIC OF LITHUANIA RESOLUTION NO.
177 "ON APPROVING THE LICENSING RULES FOR BUYING-UP
SCRAP AND WASTE OF NON-PRECIOUS METALS MEANT FOR
REALISATION" OF 6 FEBRUARY 2002 (WORDING OF 31 AUGUST
2004) WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA
15 March 2008
Vilnius
The Constitutional Court of the Republic of Lithuania,
composed of the Justices of the Constitutional Court Egidijus
Kűris, Kćstutis Lapinskas, Zenonas Namavičius, Ramutë Ruđkytë,
Vytautas Sinkevičius, Stasys Stačiokas and Romualdas Kćstutis
Urbaitis,
with the secretary of the hearing—Daiva Pitrënaitë,
in the presence of the representatives of the Government of
the Republic of Lithuania, the party concerned, who were Lina
Lukođevičiűtë, Head of Legislative and Law Application Division
of the Law and Public Procurement Department of the Ministry of
Economy of the Republic of Lithuania, and Birutë Janutënienë,
Deputy Head of the Internal Trade Division of the Trade
Department of the Ministry of Economy,
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, in its public
hearing on 13 March 2008 heard constitutional justice case No.
19/06-20/06 subsequent to the petitions (No. 1B-17/2006 and No.
1B-18/2006) of the Klaipëda Regional Administrative Court, the
petitioner, requesting to investigate whether Item 34 of the
Licensing Rules for Buying-up Scrap and Waste of Non-Precious
Metals Meant for Realisation (wording of 31 August 2004) approved
by Government of the Republic of Lithuania Resolution No. 177 "On
Approving the Licensing Rules for Buying-up Scrap and Waste of
Non-Precious Metals Meant for Realisation" of 6 February 2002
(wording of 31 August 2004), to the extent that, according to the
petitioner, it does not provide for a possibility, after having
taken account of the nature of the violation, liability
mitigating and other significant circumstances, not to apply the
sanction—deletion of the address of the place where scrap and
waste of non-precious metals are bought up from the licence for
buying-up scrap and waste of non-precious metals meant for
realisation—as well as that it does not establish the duration of
such deletion, is not in conflict with Paragraph 3 of Article 46
of the Constitution of the Republic of Lithuania, and with the
constitutional principles of justice and a state under the rule
of law.
By the 1 October 2007 Decision "On joining petitions into
one case" of the Constitutional Court, petitions No. 1B-17/2006
(case No. 19/06) and No. 1B-18/2006 (case No. 20/06) of the
Klaipëda Regional Administrative Court, the petitioner, were
joined into one case and it was given reference No. 19/06-20/06.
The Constitutional Court
has established:
I
1. The Klaipëda Regional Administrative Court, the
petitioner, was investigating administrative cases. By its
ruling, the said court suspended the consideration of the cases
and applied to the Constitutional Court with petitions requesting
to investigate whether Item 34 of the Licensing Rules for Buying-
up Scrap and Waste of Non-Precious Metals Meant for Realisation
(wording of 31 August 2004; hereinafter also referred to as the
Rules) approved by Government Resolution No. 177 "On Approving
the Licensing Rules for Buying-up Scrap and Waste of Non-Precious
Metals Meant for Realisation" of 6 February 2002 (wording of 31
August 2004; hereinafter also referred to as Government
Resolution No. 177 of 6 February 2002), to the extent that,
according to the petitioner, it does not provide for a
possibility, after having taken account of the nature of the
violation, liability mitigating and other significant
circumstances, not to apply the sanction—deletion of the address
of the place where scrap and waste of non-precious metals are
bought up (hereinafter also referred to as the address of buying-
up) from the licence for buying-up scrap and waste of non-
precious metals meant for realisation (hereinafter also referred
to as the licence)—as well as that it does not establish the
duration of such deletion, is not in conflict with Paragraph 3 of
Article 46 of the Constitution, and with the constitutional
principles of justice and a state under the rule of law.
II
The petitions of the Klaipëda Regional Administrative Court,
the petitioner, are grounded on the following arguments.
1. Under Paragraph 2 of Article 2 of the Republic of
Lithuania Law on Buying-up Scrap and Waste of Non-Precious Metals
Meant for Realisation, scrap and waste of non-precious metals
(ferrous and non-ferrous) shall be the metalwork of these metals
which is not suitable to use for its purpose because of the fact
that it is worn, broken or wrecked in other way, as well as waste
which formed during the production or mechanical processing of
non-precious metals.
2. Item 34 of the Rules (wording of 31 August 2004) provides
that the executive institution of the municipality, in the
territory of which the buyer-up has been founded, shall delete
the address of the place of buying-up from the licence, if the
buyer-up, within one year, violated the conditions of the
licensed activity twice at the same place of buying-up and once
while buying-up scrap and waste of non-ferrous metals. The
conditions of the licensed activity are provided for in Chapter
VII of the Rules; Item 23 which is set forth therein establishes
an "abstract" requirement for the buyers-up "to follow the
requirements of <...> laws, other legal acts and these Rules",
while Items 27-29 contain "specific" requirements for the buyers-
up a failure to follow which is considered as violation of the
conditions of the licensed activity.
Chapter II of the Rules for Buying-up, Record and Storing
Scrap and Waste of Non-Precious Metals approved by 12 February
2002 Order of the Minister of Economy of the Republic of
Lithuania No. 49 "On Approving the Rules for Buying-up, Record
and Storing Scrap and Waste of Non-Precious Metals" (wording of 2
May 2005) provides for the requirements for the establishment of
the place for buying-up, inter alia the fact that at the place of
buying-up there must be metrologically checked weighting tools,
welfare room, lockup means (containers) with special application
for collection and storing dangerous waste (when scrap including
dangerous waste (accumulators, oil lubricant filters or others)
is bought-up), the necessary individual work safety means and
primary fire extinguishing means, the means ensuring the safety
of the existing valuables and record documents, the instrument
for measuring the radiation level for establishing the radiation
level of the bought-up scrap and waste, other means specified in
normative legal acts (Items 9-10). Such big requirements of
facilities' equipment raised for the installation of the place of
buying-up are closely related to the investments of the economic
entity.
3. Under Paragraph 3 of Article 46 of the Constitution, the
state shall regulate economic activity so that it serves the
general welfare of the Nation. While establishing the liability
for the violations of law, one must heed the requirement of
reasonableness, as well as the principle of proportionality,
under which established legal means must be necessary in a
democratic society and suitable for the legal and universally
significant purposes sought; they may not restrict the rights of
persons more than it is necessary in order to attain these
purposes.
However, according to the Klaipëda Regional Administrative
Court, the petitioner, the provision of Item 34 of the Rules
(wording of 31 August 2004), entrenching the sanction for the
buyer-up for the one-time violation of the conditions of the
licensed activity of buying-up of scrap and waste of non-ferrous
metals is imperative and applicable regardless of the
circumstances, extent thereof, liability mitigating and other
significant circumstances of the commission of the violation of
law; even though different licences are issued for buying-up of
scrap and waste of non-ferrous metals and buying-up of scrap and
waste of ferrous metals, for the violation of the conditions of
the licensed activity the address of the place of buying-up is
deleted from the annexes of both licences, regardless of the fact
as to the conditions of which licensed activity were violated; in
addition, the place of buying-up from the licence is deleted for
indefinite time (because no period of time is established). The
petitioner doubts whether the imperative requirement in all cases
to delete the address of the place of buying-up from the licence
for indefinite time even for one violation of the conditions of
the licensed activity committed in the same place of buying-up
during the period of one year is the necessary measure for
achieving the universally important objectives; in its opinion,
such sanction for the violator of law may in certain cases be
obviously too big, disproportionate to the committed violation of
law and, therefore, unfair, as the address of the place of
buying-up, where there are the facilities created to engage in
that activity which belong to the corresponding economic entity,
is deleted from the licence for a small violation of law
committed for the first time and thus, the activity of the
enterprise is ruined.
III
In the course of preparation of the case for the
Constitutional Court hearing, written explanations were received
from the representatives of the Government, the party concerned,
who were L. Lukođevičiűtë and B. Janutënienë, in which it is
stated that the disputed legal regulation is not in conflict with
the Constitution. The position of the representatives of the
Government, the party concerned, is based on the following
arguments.
1. Freedom of economic activity is not absolute, its
implementation is related to the interests of society, thus, the
state has to regulate the economic activity so that it serves the
general welfare of the Nation and so that legitimate interests of
various groups of society are not violated. The regulation of
economic activity is usually related to the establishment of
conditions of economic activity, regulation of corresponding
procedures, control of economic activity, as well as certain
restrictions and prohibitions of this activity.
2. By the sanction for the violations of the requirements of
the licensed activity—deletion of the address of the place of
buying-up from the licence—which is established in Paragraph 5
(wording of 13 April 2004) of Article 3 of the Law on Buying-up
Scrap and Waste of Non-Precious Metals Meant for Realisation and
in Item 34 of the Rules (wording of 31 August 2004), one aims to
ensure the control of the activity of buying-up of non-precious
metals and to protect society from the harm caused by thefts of
non-precious metalwork.
Even though under the List of Scrap and Waste of Non-
Precious Metals Whose Buy-up Is Prohibited approved by Minister
of Economy Order No. 77 "Regarding the Approval of the List of
Scrap and Waste of Non-Precious Metals Whose Buy-up Is
Prohibited" of 28 February 2002, it is prohibited to buy-up
equipment of electricity and communications, covers of wells of
heating and other routes, rails, decorative fences of graves,
crosses, bells, etc. (save cases when one submits the documents
confirming the property right of these things), devastation of
cemeteries, thefts of aluminium wires and various cables and
destruction rails continue. Therefore, the activity of economic
entities is disrupted and society experiences big material
losses. Paragraph 5 (wording of 23 October 2001) of Article 3 of
the Law on Buying-up Scrap and Waste of Non-Precious Metals Meant
for Realisation established that the address of the place of
buying-up shall be deleted from the licence if the buyer-up,
within one year, twice violates the requirements of this law and
other legal acts, which regulate the buying-up of scrap and waste
of non-precious metals meant for realisation. However, this
provision was not effective.
3. Article 1 of the Republic of Lithuania Law on Amending
Article 3 of the Law on Buying-up Scrap and Waste of Non-Precious
Metals Meant for Realisation adopted by the Seimas on 7 November
2002 amended Paragraph 5 (wording of 23 October 2001) of Article
3 of the Law on Buying-up Scrap and Waste of Non-Precious Metals
Meant for Realisation and it established that the address of the
place of buying-up shall be deleted from the licence by the mayor
of the municipality under the procedure established by the
Government, inter alia if the buyer-up violated the requirements
of this law and other legal acts which regulate the buying-up of
scrap and waste of non-precious metals meant for realisation.
Under Article 2 of the Law on Amending Article 3 of the Law on
Buying-up Scrap and Waste of Non-Precious Metals Meant for
Realisation, the Government had to approve the amendment to the
Licensing Rules for Buying-up Scrap and Waste of Non-Precious
Metals Meant for Realisation until 1 February 2003.
The Government did that on 6 February 2003, by adopting
Resolution No. 191 "On Amending Government of the Republic of
Lithuania Resolution No. 177 'On Licensing the Buying-up of Scrap
and Waste of Non-Precious Metals Meant for Realisation' of 6
February 2002"; in addition, the liability of the buyers-up for
violations of the conditions of the licensed activity was made
stricter and Item 34 of the Rules (wording of 6 February 2003)
established that the address of the place of buying-up shall be
deleted from the licence if the buyer-up, within one year,
violated the conditions of the licensed activity twice at the
same place of buying-up and once while buying-up scrap and waste
of non-ferrous metals. The same provision is also enshrined in
Item 34 of the Rules (wording of 31 August 2004). According to
the representatives of the Government, the party concerned, this
provision performs a preventive function, it encourages the
buyers-up to follow the conditions of the licensed activity, by
the said provision one aims to prevent buying-up stolen scrap and
waste of non-precious metals and to ensure the protection of the
person's right to ownership which is enshrined in Article 23 of
the Constitution. Under Article 28 of the Constitution, while
implementing his rights and freedoms, the person must observe the
Constitution and the laws of the Republic of Lithuania and must
not restrict the rights and freedoms of other persons; therefore,
also the buyer-up, while buying-up scrap and waste of non-
precious metals, must follow the conditions of the licensed
activity as they help to protect the rights and legitimate
interests of other persons. The discussed sanction—deletion of
the address of the place of buying-up from the licence—is applied
to all the persons who are engaged in the same activity for the
same violations of the requirements of the legal acts. The fact
that, according to the Klaipëda Regional Administrative Court,
the petitioner, there is no provided possibility, after having
taken account of the nature of the violation of law, liability
mitigating and other significant circumstances, not to apply the
sanction—deletion of the address of the place of buying-up from
the licence—is fair and not too strict.
4. For the violations of the conditions of the licensed
activity, the following sanctions are provided for in the Rules:
deletion of the address of the place of buying-up from the
licence; suspension of validity of the licence; abolition of
validity of the licence. It is specified in the said Rules for
what violations which sanction is applied. While establishing
these sanctions, one assessed such circumstances as the nature,
frequency and gravity of the violation of the conditions of the
licensed activity. The deletion of the address of the place of
buying-up from the licence is such a sanction, which is
proportionate to the gravity of the committed violation of law.
The Rules do not provide in what cases one could repeatedly
enter such address of the place of buying-up into the licence,
which has been deleted from the licence for the violations of the
conditions of the licensed activity. However, according to the
representatives of the Government, the party concerned, the Rules
do not limit the possibility of the buyer-up to request to enter
the new addresses of the place of buying-up into the licence; in
the licences of most buyers-up, there is not a single, but
several or dozens of the places of buying-up. Therefore, the
deletion of the address of the place of buying-up from the
licence is the sanction which meets the requirement of the
Constitution that the state would regulate the economic freedom
of a person so that it serves the general welfare of the Nation.
IV
At the Constitutional Court hearing, the representatives of
the Government, the party concerned, who were L. Lukođevičiűtë
and B. Janutënienë, virtually reiterated the arguments set forth
in their written explanations, as well as presented additional
explanations.
The Constitutional Court
holds that:
I
1. On 6 February 2002, the Government adopted Resolution No.
177 "On Licensing the Buying-up of Scrap and Waste of Non-
Precious Metals Meant for Realisation" which came into force on 1
March 2002. Item 1 of this resolution approved the Licensing
Rules for Buying-up Scrap and Waste of Non-Precious Metals Meant
for Realisation. Government Resolution No. 177 of 6 February 2002
(and the Rules approved by it) was amended by Government
Resolution No. 191 "On Amending Government of the Republic of
Lithuania Resolution No. 177 'On Licensing the Buying-up of Scrap
and Waste of Non-Precious Metals Meant for Realisation' of 6
February 2002" of 6 February 2003 which came into force on 13
February 2003, while Item 1 of Government Resolution No. 1096 "On
Amending Government of the Republic of Lithuania Resolution No.
177 'On Licensing the Buying-up of Scrap and Waste of Non-
Precious Metals Meant for Realisation' of 6 February 2002" of 31
August 2004, which came into force on 1 December 2004, amended
Government Resolution No. 177 of 6 February 2002 (wording of 6
February 2002 with subsequent amendments) and set it forth in a
new wording; the title of Government Resolution No. 177 of 6
February 2002 was also amended—the Resolution was called "On
Approving the Licensing Rules for Buying-up Scrap and Waste of
Non-Precious Metals Meant for Realisation".
2. The Klaipëda Regional Administrative Court, the
petitioner, requests to investigate whether Item 34 of the Rules
(wording of 31 August 2004) approved by Government Resolution No.
177 of 6 February 2002, to the extent that, according to the
petitioner, it does not provide for a possibility, after having
taken account of the nature of the violation, liability
mitigating and other significant circumstances, not to apply the
sanction—deletion of the address of the place where scrap and
waste of non-precious metals are bought up from the licence—as
well as that it does not establish the duration of such deletion,
is not in conflict with Paragraph 3 of Article 46 of the
Constitution which establishes that the state shall regulate
economic activity so that it serves the general welfare of the
Nation, and with the constitutional principles of justice and a
state under the rule of law.
3. Item 34 of the Rules (wording of 31 August 2004) is to be
construed while taking account of the fact what legal regulation
is enshrined in the laws, namely in the Law on Buying-up Scrap
and Waste of Non-Precious Metals Meant for Realisation, as well
as in the Republic of Lithuania Law on Waste Management and in
the Republic of Lithuania Code of Administrative Violations of
Law (hereinafter referred to as the CAVL).
4. On 23 October 2001, the Seimas adopted the Law on Buying-
up Scrap and Waste of Non-Precious Metals Meant for Realisation
which came into force on 1 March 2002. Article 1 of the Law on
Amending Article 3 of the Law on Buying-up Scrap and Waste of
Non-Precious Metals Meant for Realisation, which was adopted on 7
November 2002 by the Seimas and which came into force on 22
November 2002, amended Paragraph 5 (wording of 23 October 2001)
of Article 3 of the Law on Buying-up Scrap and Waste of Non-
Precious Metals Meant for Realisation and it was set forth in a
new wording. Article 1 of the Law on Amending Article 3 of the
Law on Buying-up Scrap and Waste of Non-Precious Metals Meant for
Realisation, which was adopted by the Seimas on 13 April 2004 and
which came into force on 24 April 2004, amended Paragraph 3
(wording of 23 October 2001) and Paragraph 5 (wording of 7
November 2002) of Article 3 of the Law on Buying-up Scrap and
Waste of Non-Precious Metals Meant for Realisation.
Article 1 titled "Purpose of the Law" of the Law on Buying-
up Scrap and Waste of Non-Precious Metals Meant for Realisation
specifies that this law shall establish "the legal grounds of the
economic activity which is related to the buying-up of scrap and
waste of non-precious metals meant for realisation". Article 2
titled "Main definitions of the Law" of the law defines that the
non-precious metals shall be cast iron and steel (ferrous
metals), copper, nickel, aluminium, lead, zinc, tin, tungsten,
molybdenum, tantalum, magnesium, cobalt, bismuth, cadmium,
titanium, zirconium, antimony, manganese, beryllium, chromium,
germanium, vanadium, gallium, hafnium, indium, niobium, rhenium,
thallium and their alloys (non-ferrous metals)" (Paragraph 1);
scrap and waste of non-precious metals shall be "metalwork of
non-precious metals which is not suitable to use for their
purpose because of the fact that they are worn, broken or wrecked
in other way, as well as waste which formed during the production
or mechanical processing of non-precious metals" (Paragraph 2);
the buyer-up shall be "an enterprise, founded under procedure
established in laws, which buys-up scrap and waste of non-
precious metals meant for realisation under the procedure
established in this Law" (Paragraph 3); the place of buying-up
shall be "premises or a site specially established under the
requirements established by the Government or an institution
authorised by it, the address of which is specified in the
licence of the buyer-up and in which scrap and waste of non-
precious metals are bought-up and/or stored" (Paragraph 4).
Article 3 titled "Licensing of the Activity Linked to
Buying-up of Scrap and Waste of Non-Precious Metals Meant for
Realisation" (wording of 13 April 2004) of the Law on Buying-up
Scrap and Waste of Non-Precious Metals Meant for Realisation
establishes the following: buying-up of scrap and waste of non-
precious metals meant for realisation shall be a licensed
activity (Paragraph 1); only the buyers-up who were granted
licences under the procedure established by the Government, will
be able to engage themselves in the activity linked to buying-up
of scrap and waste of non-precious metals meant for realisation
(Paragraph 2); the executive institution of the municipality in
whose territory the buyer-up is established shall grant the
licences, as well as shall suspend and annul their validity
(Paragraph 3); when the places of buying-up are established in
the territories of the municipalities other than those in which
the buyer-up has been established, the address of the places of
buying-up must be coordinated with the corresponding
municipalities and written into the licences (Paragraph 4); the
executive institution of the municipality shall delete the
address of the place of buying-up from the licence under the
procedure established by the Government while following the
request of the buyer-up or provided that the buyer-up violated
the requirements of this law and other legal acts regulating the
buying-up of scrap and waste of non-precious metals meant for
realisation (Paragraph 5).
Article 4 titled "Requirements for the Buyer-up" of the Law
on Buying-up Scrap and Waste of Non-Precious Metals Meant for
Realisation establishes that the buyer-up must, under the
procedure established by the law, buy-up scrap and waste of non-
precious metals, administer their record and store them only at
the place of buying-up (Item 1 of Paragraph 1), manage the
bought-up scrap and waste of non-precious metals under the Law on
Waste Management and other legal acts regulating management of
waste (Item 2 of Paragraph 1), provide information, under the
established procedure, about the bought-up and realised scrap and
waste of non-precious metals (Item 3 of Paragraph 1); it also
established that the list of scrap and waste of non-precious
metals whose buying-up is prohibited shall be approved by the
Government or an institution authorised by it (Paragraph 2).
Under Article 6 titled "Proposals for the Government" of the
Law on Buying-up Scrap and Waste of Non-Precious Metals Meant for
Realisation, the Government had to approve the Licensing Rules
for Buying-up Scrap and Waste of Non-Precious Metals Meant for
Realisation until 1 January 2002 (Paragraph 1); in addition, the
Government or an institution authorised by it had to approve the
procedure for buying-up, record and storing of scrap and waste of
non-precious metals and to establish the requirements for
equipping the places of buying-up until 1 January 2002 (Item 1 of
Paragraph 2), as well as to approve the list of scrap and waste
of non-precious metals whose buying-up is prohibited (Item 2 of
Paragraph 2).
5. While summarising the discussed legal regulation
established in the Law on Buying-up Scrap and Waste of Non-
Precious Metals Meant for Realisation (wording of 23 October 2001
with subsequent amendments) in the context of the constitutional
justice case at issue, one is to hold the following: buying-up of
scrap and waste of non-precious metals meant for realisation is a
licensed activity, i.e. such activity, in order to engage in
which the economic entity must have a corresponding permission—
licence; the procedure for issuing of licences is established by
the Government; the executive institution of the municipality in
whose territory the buyer-up is established grants the licences,
as well as suspends and annuls their validity; in the licence, in
addition to other things, the address of the place of buying-up
is specified; the address of the place of buying-up is deleted
from the licence under the procedure established by the
Government; it will be done by the executive institution of the
municipality, inter alia if the buyer-up violated the
requirements of the said law and other legal acts regulating
buying-up of scrap and waste of non-precious metals meant for
realisation; the said law does not the establish specific terms
of this prohibition sanction, as well as those of the preventive
measure—deletion of the address of the place of buying-up, nor
does it establish a final list of the grounds or legal acts in
which such grounds are established; the requirements for
violation of which the address of the place of buying-up is
deleted from the licence are established not only in this law—
they may be established also in other legal acts which regulate
buying-up of scrap and waste of non-precious metals meant for
realisation, as well as other relations linked to waste
management. It needs also to be held that the Law on Buying-up
Scrap and Waste of Non-Precious Metals Meant for Realisation
(wording of 23 October 2001 with subsequent amendments) does not
include any provisions which would prevent the buyer-up from
lodging a complaint to court against a decision of the competent
institution do delete the address of buying-up fro the licence;
neither does it include provisions, which would not allow the
court, taking account of the nature of the violation of law
committed by that economic entity, liability mitigating and other
significant circumstances, not to apply this prohibition
sanction; in addition, the said law does not include any
provisions which would prevent the buyer-up from lodging a
complaint to court against the decision of a competent
institution to apply any of the sanctions provided for in this
law—suspension of the validity of the licence or abolition of the
licence. In general, the Law on Buying-up Scrap and Waste of Non-
Precious Metals Meant for Realisation (wording of 23 October 2001
with subsequent amendments), is not designed for regulating the
relations linked to resolving disputes regarding a decision on
application of the said prohibition sanction or other sanctions
provided for in it (suspension of the validity of the licence or
abolition of the licence), inter alia to the powers of the court
while considering corresponding complaints, and it does not
regulate these relations: it only provides for these sanctions
and establishes the subject which applies them—as it has been
mentioned, under this law, according to the procedure established
by the Government, the executive institution of the municipality
has the powers to apply the sanctions established in this law.
6. It needs to be noted that the most important requirements
which must be followed by the buyer-up when he implements his
economic activity are defined—in general terms, however, clearly
enough—in the Law on Buying-up Scrap and Waste of Non-Precious
Metals Meant for Realisation (wording of 23 October 2001 with
subsequent amendments). It is obvious from Item 2 of Paragraph 1
of Article 4 of the Law on Buying-up Scrap and Waste of Non-
Precious Metals Meant for Realisation that more detailed
requirements which must be followed by the buyer-up while he
implements his economic activity are established in the Law on
Waste Management (to which reference is made in that item). It is
also to be noted that the clause "established procedure" of Item
1 of Paragraph 1 of Article 4 of the Law on Buying-up Scrap and
Waste of Non-Precious Metals Meant for Realisation and the
analogous clause of Item 3 of the same paragraph, as well as the
provision of Paragraph 2 of this article that the list of scrap
and waste of non-precious metals, whose buying-up is prohibited,
shall be approved by the Government or an institution authorised
by it, mean that the law-making institutions which, under their
competence, issue substatutory legal acts, are committed to
detail and concretise these most important requirements. It needs
to be emphasised that the legal regulation established by the
Government and other institutions which issue the said
substatutory legal acts may not compete with the one established
in the said laws.
7. In the context of the constitutional justice case at
issue, it also needs to be held that Paragraph 4 of Article 2 of
the Law on Buying-up Scrap and Waste of Non-Precious Metals Meant
for Realisation introduces such definition of the notion "place
of buying-up" and this law enshrines such concept of the place of
buying-up, whereby in the licence also such address of the place
of buying-up may be specified which was previously deleted by the
executive institution of the municipality from the licence held
by the buyer-up, inter alia for a corresponding committed
violation of law, but which was entered into the licence again.
Therefore, even though, under this law, the address of the place
of buying-up is deleted from the licence held by the buyer-up
without specifying the term, it is not necessarily deleted from
the licence for good—if the place of buying-up meets the
requirements, it may be entered into the licence again (moreover,
that there is no explicit prohibition to do that); on the other
hand, one should certainly not to reject the fact that in cases
where the prohibition sanction is applied for a violation of law
committed by the economic entity, after one takes account of the
nature of that violation of law, liability mitigating and other
significant circumstances, the address of the place of buying-up
must be deleted from the licence held by the buyer-up namely for
good and it must not be permitted to enter it into the licence
again. It is a matter of application of this law and it is not
subject to investigation in this constitutional justice case at
issue.
It needs also to be noted that the Law on Buying-up Scrap
and Waste of Non-Precious Metals Meant for Realisation (wording
of 23 October 2001 with subsequent amendments) does not include
any provisions from which one could decide in what cases and
under which circumstances (as well as after how much time) it is
to be permitted to enter that address of the place of buying-up
into the licence, which previously was deleted from the licence
held by the buyer-up (inter alia for the corresponding violation
of law committed by that economic entity) by the competent
institution, and in which cases and under which circumstances (as
well as after what period of time)—not to be permitted. In this
respect, the legal regulation established in the law is not
sufficient, it includes a gap; this legal gap must be filled in.
While filling in the said legal gap, the legislator must heed the
norms and principles of the Constitution, inter alia the
constitutional principles of justice, reasonableness,
proportionality and good faith.
It has been mentioned that the Law on Buying-up Scrap and
Waste of Non-Precious Metals Meant for Realisation (wording of 23
October 2001 with subsequent amendments) does not include any
provisions which would prevent the buyer-up from lodging a
complaint to court against a decision of the competent
institution to delete the address of the place of buying-up from
the licence; neither does it include provisions, which would not
allow the court, taking account of the nature of the violation of
law committed by that economic entity, liability mitigating and
other significant circumstances, not to apply this prohibition
sanction. Thus, it is to be held that this law does not prevent
one from lodging a complaint to court also against decisions of
the competent institution—the executive institution of the
municipality—to delete the place of buying-up from the licence,
while the court (namely an administrative court because the
executive institution of the municipality is a subject of
administration of municipalities (a subject of public
administration) the judicial verification of the lawfulness of
acts and actions whereof, under Item 2 of Paragraph 1 (wordings
of 19 September 2000, 11 November 2004 and 7 June 2007) of
Article 15 of the Republic of Lithuania Law on the Proceedings of
Administrative Cases, is attributed to administrative courts) has
the powers to decide regarding the application of this
prohibition sanction. While adopting a decision in a case, the
court must always follow laws (in the considered case—not only
the Law on Buying-up Scrap and Waste of Non-Precious Metals Meant
for Realisation, but also the Law on the Proceedings of
Administrative Cases (wording of 19 September 2000 with
subsequent amendments and supplements) and other laws) and law,
inter alia the principles of justice, reasonableness,
proportionality and good faith which stem from the Constitution.
8. It has been mentioned that in Item 2 of Paragraph 1 of
Article 4 of the Law on Buying-up Scrap and Waste of Non-Precious
Metals Meant for Realisation, reference is made to the Law on
Waste Management, as well as that it is obvious from the said
item that more detailed requirements which must be followed by
the buyer-up when he implements his economic activity are
established in the Law on Waste Management.
The Law on Waste Management was adopted on 16 June 1998 and
it came into force on 1 July 1998. It has been amended, and
Article 1 of the Republic of Lithuania Law on Amending the Law on
Waste Management, which was adopted by the Seimas on 1 July 2002
and which came into force on 1 January 2003, with the exception
established in the law, amended and set it forth in a new
wording. The Law on Waste Management (wording of 1 July 2002) has
been amended and supplemented later more than once.
In Paragraph 1 of Article 1 titled "Purpose of the Law"
(wording of 29 April 2004) of the Law on Waste Management, it is
specified that this law shall establish "the basic requirements
for the prevention, record keeping, collection, storage,
transportation, utilisation and removal of waste with a view to
prevent its negative effects on the environment and human health,
as well as the main principles of organisation and planning
principles of waste management", while in Paragraph 3 it is
specified that "the requirements for management of specific waste
flow or categories thereof shall be established by laws and
other legal acts". The Law on Waste Management is designed for
regulating the relations linked to establishment of priorities in
waste management, waste management (its organisation, plans for
saving natural resources and minimisation of waste, issuance of
permits, waste records and procedure for provision of reports,
waste storage, safekeeping of waste management documentation,
utilisation and removal of waste), peculiarities of hazardous
waste management (licensing of hazardous waste management,
identification and declaration, mixing, packaging and labelling,
procedure for transportation of waste, record keeping of
transport, export and import of waste, accident prevention and
liquidation), state regulation of waste management, plans of
waste management, systems of communal waste management, economic
and financial measures of waste management; in this law, also the
rights and duties of the manufacturers, importers and
distributors in the sphere of waste management are established.
The Law on Buying-up Scrap and Waste of Non-Precious Metals
Meant for Realisation (wording of 23 October 2001 with subsequent
amendments) does not regulate these relations in detail; the
buyers-up must manage waste by following the requirements
established in the Law on Waste Management (and other legal
acts). The Law on Waste Management establishes not only these
requirements but also the fact that the Government or the
institution authorised by it have the powers to regulate certain
relations (linked to management of waste of various categories,
not only of metals and metal compounds) in more detail; in the
said law also references are made to other laws (for instance,
the Republic of Lithuania Law on Pollution Tax), international
agreements of the Republic of Lithuania, and other legal acts.
9. Under the CAVL, the natural persons who committed the
administrative violations of law linked to buying-up, record and
storage of scrap and waste of non-precious metals shall be held
administrative liable. For example, Article 193-2 titled
"Violation of the Procedure for Buying-Up, Record, Storage and
Utilisation of Non-Ferrous Metals, Their Compounds, Scrap and
Waste" (wording of 10 June 1993) of the CAVL established that
violation of the procedure for buying-up, record, storage and
utilisation of non-ferrous metals and their alloys, scrap and
waste shall incur a fine of fifty thousand to five hundred
thousand coupons either together with seizure of the scrap and
waste of non-ferrous metals and their compounds or without it;
after this article was set forth in the wording of 18 December
2007 (and after it was given the title "Buying-up Scrap and Waste
of Non-precious Metals Which are Included into the List of Scrap
and Waste of Non-precious Metals Which are Prohibited from
Buying-up or Violations of the Procedure for Buying-up, Record
and Storage of Scrap and Waste of Non-precious Metals"), it was
established that buying-up of scrap and waste of non-precious
metals which are included into the list of scrap and waste of
non-precious metals which are prohibited from buying-up or
violations of the procedure for buying-up, record and storage of
scrap and waste of non-precious metals shall incur a fine of two
thousand to five thousand litas either together with confiscation
of the scrap and waste of non-precious metals and their compounds
or without confiscation.
In this context, one is to take account of the legal
position of the Constitutional Court in the constitutional
justice case, in which, subsequent to the petition of the Higher
Administrative Court, the petitioner, it was investigated inter
alia whether the provision of Paragraph 3 (wording of 2 July
1998) of Article 50 of the Republic of Lithuania Law on Tax
Administration which entrenches the sanctions for economic
entities (both those who have the rights of a legal person and
those who do not have) for the corresponding violations of law
and at the same time a possibility to bring certain employees or
owners of that economic entity to criminal or administrative
liability. In the Constitutional Court ruling of 6 December 2000,
which was adopted in the said constitutional justice case, one
followed the legal position whereby the said entities are brought
to legal responsibility for violations of law which, even though
related, are in fact different; the disputed provision was
recognised as being not in conflict with the Constitution.
In the context of the constitutional justice case at issue,
it needs to be noted that natural persons who committed
administrative violations of law linked to buying-up, record and
storage of scrap and waste of non-precious metals and who are
brought to administrative liability under the CAVL, and the
economic entities—legal persons—to which, under the Law on
Buying-up Scrap and Waste of Non-Precious Metals Meant for
Realisation (wording of 23 October 2001 with subsequent
amendments), the sanction—deletion of the place of buying-up from
the licence—is applied, are subjects of violations of law which,
even though related, are in fact different.
10. Item 34 of the Rules (wording of 31 August 2004), whose
compliance (to the specified extent) is disputed by the Klaipëda
Regional Administrative Court, the petitioner, provides the
following: "The executive institution of the municipality in the
territory of which the buyer-up has been founded, shall delete
the address of the place of buying-up from the licence, if the
buyer-up, within one year, violated the conditions of the
licensed activity twice at the same place of buying-up and once
while buying-up scrap and waste of non-ferrous metals." This item
is to be construed while taking account of the provisions of
other items.
The Rules (wording of 31 August 2004) establish that there
are two types of licences: for buying-up scrap and waste of non-
ferrous metals meant for realisation (Item 4.1) and for buying-up
scrap and waste of ferrous metals meant for realisation (Item 4.
2); a separate licence shall be issued for the activity of each
type (Item 5). In the licence, inter alia the type of the licence
(Item 7.4) and the addresses of the places where scrap and waste
of non-precious metals are bought up (Item 7.5) are specified.
The licences shall be issued by the executive institution of the
municipality in the territory of which the buyer-up has been
founded (Item 8). The buyer-up who wants to enter the address of
the place of buying-up into the licence or to delete it from the
licence, shall submit a corresponding request (in which the
following must be specified: the name of the buyer-up, the legal
form, code, seat, the type of the held licence, its date of issue
and number, addresses of the entered or deleted places of buying-
up, the position, name and surname of the manager of the buyer-up
or the person authorised by him who filled in the request, and
the date of submission of the request) to the executive
institution of the municipality; the buyer-up who has terminated
his activity at the place of buying-up, must apply to the
executive institution of the municipality regarding the deletion
of the address of this place of buying-up from the licence within
5 working days (Item 17). Together with the request to enter the
addresses of the new places of buying-up, one shall inter alia
present copies of the agreement on the grounds of which the
buyer-up uses the entered new place of buying-up (when the place
of buying-up is not the buyer's-up property) and copies of the
documents which prove the ownership of the place of buying-up
(Item 18.1), the documents which confirm that the place of
buying-up meets the requirements for the installation of the
places of buying-up established by the Ministry of Economy (which
are to be presented when the place of buying-up is established in
the territory of the municipality in which the buyer-up has been
founded) (Item 18.2), the note from the municipality stating that
the establishment of the place of buying-up at the specified
address has been coordinated with the municipality, in the
territory of which it is established (which is to be presented
when the places of buying-up are established in the territory of
other municipalities than the one in which the buyer-up has been
founded) (Item 18.3). The licence is not issued if "the validity
of the licence has been abolished under the requirements
established in one of these Items—38.3, 38.4 and 38.5 (the
licence shall not be issued to the buyer-up for 5 years as from
the day of the abolishment of its validity)" (Item 21.5).
In Chapter VII titled "Conditions of the Licensed Activity"
(Items 23-32) of the Rules (wording of 31 August 2004), it is
established that: the buyers-up must follow the requirements of
laws, other legal acts, as well as of the Rules (Item 23); the
buyers-up must manage the bought-up scrap and waste of non-
precious metals under the Law on Waste Management and other legal
acts which regulate waste management (Item 24); the buyers-up who
have licences to buy-up scrap and waste of non-ferrous metals
meant for realisation may buy-up scrap and waste of non-ferrous
metals from enterprises, institutions and organisations of the
Republic of Lithuania and from natural persons (Item 25), while
those who have licences to buy-up scrap and waste of ferrous
metals meant for realisation may buy up scrap and waste of
ferrous metals (Item 26); the buyers-up shall be prohibited from
buying-up scrap and waste of non-precious metals which are
specified in the Minister of Economy approved list of scrap and
waste of non-precious metals, whose buying-up is prohibited,
(Item 27); the buyers-up may not authorise other persons to
engage in the activity specified in the licence or transfer this
right to them under an agreement (Item 28); the buyers-up may
buy-up and/or store scrap and waste of non-precious metals only
at the places of buying-up specified in the licence (Item 29);
the original licence must be kept at the seat of the buyer-up, at
the address specified in the licence, and its copies—at the
places of buying-up (Item 30); after a reporting quarter is over,
the buyers-up must, according to the form established by the
Ministry of Economy, present, within 20 calendar days, the
information about the bought-up and realised scrap and waste of
non-precious metals to the Ministry of Economy and the executive
institution of the municipality in the territory of which the
buyer-up has been founded (Item 31); after the calendar year is
over, the buyers-up shall present the accounting reports of waste
to the Ministry of Environment under the established procedure
(Item 32).
Under Item 33 of the Rules (wording of 31 August 2004), the
buyers-up shall have the right: to engage in the activity
specified in the licence (Item 33.1); to require grounded written
explanations, if it is rejected to grant the licence, to enter
and/or to delete the address of the place of buying-up, or if the
validity of the licence is suspended or abolished (Item 33.2);
under the procedure established by the laws, to lodge a complaint
against the decision regarding the refusal to issue the licence,
suspension or abolition of the validity of the licence, deletion
of the address of the place of buying-up from the licence, or
refusal to enter the address of the place of buying-up into the
licence (Item 33.3).
Under Item 36 of the Rules (wording of 31 August 2004), the
executive institution of the municipality shall suspend the
validity of the licence if: it comes into light that false data
were presented in order to get the licence (Item 36.1); the
buyer-up, to whom the address of the place of buying-up is
deleted from the licence, carries out the activity specified
therein (Item 36.2); 2 addresses of the place of buying-up have
been deleted from the licence of the buyer-up for violations of
the conditions of the licensed activity within one year, or the
buyer-up has, within one year, violated the requirements of Items
27 or 28 of the Rules twice (Item 36.6); the buyer-up is in tax
arrears for the budget of the Republic of Lithuania, the budget
of the municipality or funds, the taxes paid whereto are
administered by the State Tax Inspectorate (save the cases when
paying of taxes, fines for unpaid taxes and fines for the buyer-
up are postponed under the procedure established in legal acts of
the Republic of Lithuania, or when tax disputes regarding these
taxes, fines for unpaid taxes and fines are taking place), does
not fulfil its obligations for the customs, is indebted for the
budget of the State Social Insurance Fund (Item 36.4); the buyer-
up does not present the information about the licensed activity
to the Ministry of Economy and the executive institution of the
municipality in which it has been founded, or provides false
information (Item 36.5).
Under Item 38 of the Rules (wording of 31 August 2004), the
executive institution of the municipality shall abolish the
validity of the licence, if: the buyer-up presents a request to
abolish the validity of the licence (Item 38.1); the buyer-up is
liquidated or reorganised when terminating its activity as an
individual economic entity (Item 38.2); the buyer-up, to whom the
validity of the licence is abolished, does not remove the
violations of the conditions of the licensed activity within the
established period of time (Item 38.3); the buyer-up, to whom the
validity of the license is suspended, undertakes the activity
specified in the licence (Item 38.4); for the buyer-up the
validity of the licence has been suspended twice within one year
(Item 38.5).
11. While summing-up the legal regulation discussed in the
Rules (wording of 31 August 2004), in the context of the
constitutional justice case at issue, it needs to be held that:
licences are issued by the executive institution of the
municipality in the territory of which the buyer-up has been
founded; the addresses of places of buying-up of scrap and waste
of ferrous metals must be specified in the licence for buying-up
scrap and waste of ferrous metals meant for realisation, while
the addresses of places of buying-up of scrap and waste of
ferrous metals—in the licence for buying-up scrap and waste of
non-ferrous metals meant for realisation; the buyer-up has the
right to request (the executive institution of the municipality)
to enter a new address of the place of buying-up into the
licence; the number of the addresses of places of buying-up
entered into the licence is not limited (neither the smallest nor
the largest number of the addresses of places of buying-up has
been established); the buyers-up shall be obliged to follow the
requirements of laws and other legal acts (inter alia Government
resolutions, orders of the Minister of Economy), as well as those
of the Rules; deletion of an address of the place of buying-up
from the licence is linked namely with the violation of the
conditions of the licensed activity: if, while buying-up scrap
and waste of non-ferrous metals meant for realisation, the buyer-
up, within one year, violated the conditions of the licensed
activity twice at the same place of buying-up, the address of
such place of buying-up is deleted from the licence for buying-up
scrap and waste of ferrous metals meant for realisation without
specifying the term, and, when buying-up scrap and waste of non-
ferrous metals meant for realisation, the buyer-up, within one
year, violated the conditions of the licensed activity at the
same place of buying-up once, the address of such place of
buying-up is deleted from the licence for buying-up scrap and
waste of non-ferrous metals meant for realisation without
specifying the term; however, the Rules (wording of 31 August
2004), inter alia Chapter VII thereof, designed for defining the
conditions of the licensed activity, do not include the duties of
the buyer-up, the final list of prohibitions applied to him and
requirements upon violation of which the address of the place of
buying-up, in which the violation has been committed, would be
deleted from the licence, in other words, there is not any final
list of the grounds for deletion of the address of the place of
buying-up from the licence; also, there is not any established
term of deletion of the place of buying-up, in which the
violations have been established, from the licence, or any term
after which the buyer-up could apply with a request to enter that
address of the place of buying-up, which has been deleted from
the licence for the violations of the conditions of the licensed
activity, into the licence again. It also needs to be held that
all three sanctions established in the Rules, as well as the
preventive measures which are applied to the buyers-up for
committed violations of law—namely the deletion of the address of
the place of buying-up from the licence, suspension of the
validity of the licence and abolition of the validity of the
licence—are provided for not only in this substatutory legal act,
but also in the Law on Buying-up Scrap and Waste of Non-Precious
Metals Meant for Realisation (Article 3 (wording of 13 April
2004) thereof), in addition, deletion of the address of the place
of buying-up from the licence is the mildest sanction, while
abolition of the validity of the licence—the strictest sanction;
the Rules enshrine final lists of the grounds for suspension and
abolition of the validity of the licence; the buyer-up has the
right to lodge a complaint against the application of all these
sanctions under the procedure established by laws.
12. It has been held that the most important requirements
which must be followed by the buyer-up when he carries out his
economic activity are defined—in general terms, however, clearly
enough—in the Law on Buying-up Scrap and Waste of Non-Precious
Metals Meant for Realisation (wording of 23 October 2001 with
subsequent amendments), as well as that these requirements are
established in more detail in the Law on Waste Management. It has
also been held that the Government or an institution authorised
by it has the powers to regulate some of these relations in more
detail; the legal regulation established by the Government and
other institutions which pass substatutory legal acts may not
compete with the legal regulation established in the said laws.
It has also been held that the Law on Buying-up Scrap and Waste
of Non-Precious Metals Meant for Realisation (wording of 23
October 2001 with subsequent amendments) does not establish any
specific terms of this prohibition sanction, as well as those of
the preventive measure—deletion of the address of the place of
buying-up—nor does it establish a final list of the grounds or
that of legal acts in which such grounds are established; the
requirements for violation of which the address of the place of
buying-up is deleted from the licence are established not only in
this law—they may also be established in other legal acts which
regulate buying-up of scrap and waste of non-precious metals
meant for realisation, as well as other relations linked to waste
management.
It needs to be noted that the Klaipëda Regional
Administrative Court, the petitioner, does not dispute the
provisions of the Rules (wording of 31 August 2004) which
consolidate the corresponding requirements; these provisions are
not subject of investigation in this constitutional justice case.
13. In the context of the constitutional justice case at
issue, it also needs to be noted that in the Rules (wording of 31
August 2004), the notion "new address of the place of buying-up"
is not defined in more detail.
In this context, it needs to be noted that, as it has been
mentioned, even though, under the Law on Buying-up Scrap and
Waste of Non-Precious Metals Meant for Realisation (wording of 23
October 2001 with subsequent amendments), the address of the
place of buying-up is deleted from the licence held by the buyer-
up without specifying the term, it is not necessarily deleted
from the licence for good—if the place of buying-up meets the
requirements, it may be entered into the licence again; on the
other hand, this law does not include the provisions from which
one could decide, under what circumstances (as well as in after
what time) it is permitted to enter this address of the place of
buying-up into the licence which was deleted from the licence
held by the buyer-up by a competent institution earlier (inter
alia for the corresponding violation of law committed by that
economic entity) and in what cases and under what circumstances
it is not permitted to do so.
In an analogous manner one is also to construe the fact that
Item 34 of the Rules (wording of 31 August 2004) whose compliance
with the Constitution is disputed in this constitutional justice
case, does not require to specify any term for deletion of the
address of the place of buying-up from the licence held by the
buyer-up, either.
Therefore, it needs to be held that the concept of a new
address of the place of buying-up, when being construed and
assessed in the context of the content of the place of buying-up
enshrined in the Law on Buying-up of Scrap and Waste of Non-
Precious Metals, gives no legal ground for stating that the
notion "new address of the place of buying-up", which is used in
the Rules, does not include such address of the place of buying-
up that was deleted from the licence held by the buyer-up for
committed violations of law, but which was later entered into it
again (specifically, when there is not any corresponding explicit
prohibition of that).
It has been held in this Constitutional Court ruling that
the Law on Buying-up Scrap and Waste of Non-Precious Metals Meant
for Realisation (wording of 23 October 2001 with subsequent
amendments) does not include any provisions which would prevent
the buyer-up from lodging a complaint to court against a decision
of the competent institution to delete the address of the place
of buying-up from the licence; neither does it include
provisions, which would not allow the court, taking account of
the nature of the violation of law committed by that economic
entity, liability mitigating and other significant circumstances,
not to apply this prohibition sanction. It has also been held
that the said law does not prevent from lodging a complaint to
court also against decisions of the executive institution of the
municipality to delete the address of the place of buying-up from
the licence, while the court which investigates the case (while
following laws, thus, not only the Law on Buying-up Scrap and
Waste of Non-Precious Metals Meant for Realisation, but also the
Law on the Proceedings of Administrative Cases (wording of 19
September 2000 with subsequent amendments and supplements) and
other laws, as well as law, inter alia the constitutional
principles of justice, reasonableness, proportionality and
fairness) has the powers to decide regarding application of this
sanction; in addition, Item 33.3 of the Rules expressis verbis
enshrines the right of the buyer-up to lodge a complaint, under
the procedure established by laws, against a decision of the
competent institution—executive institution of the municipality—
regarding the deletion of the address of the place of buying-up
from the licence. Therefore, it needs to be held that the legal
regulation established in the Rules does not prevent, under the
procedure established by the laws, from lodging complaints
against such decisions to court—an administrative court.
14. While deciding subsequent to the petitions of the
Klaipëda Regional Administrative Court, the petitioner, whether
Item 34 of the Rules (wording of 31 August 2004), to the extent
that, according to the petitioner, it does not provide for a
possibility, after having taken account of the nature of the
violation, liability mitigating and other significant
circumstances, not to apply the sanction—deletion of the address
of the place where scrap and waste of non-precious metals are
bought up from the licence for buying-up scrap and waste of non-
precious metals meant for realisation—as well as that it does not
establish the duration of such deletion, is not in conflict with
Paragraph 3 of Article 46 of the Constitution, and with the
constitutional principles of justice and a state under the rule
of law, it needs to be noted that, as the Constitutional Court
has held in its ruling of 13 May 2005 (as well as other acts),
not only the right but also the obligation of the state to
regulate economic activity by legal acts so that it serves the
general welfare of the Nation is consolidated in the provision
"the State shall regulate economic activity so that it serves the
general welfare of the Nation" of Paragraph 3 of Article 46 of
the Constitution; by means of regulation of economic activity the
state must seek the welfare of not individual persons but
precisely the general welfare of the Nation; freedom of economic
activity of a person is not absolute, it may be limited when it
is necessary to defend the values that are enshrined in the
Constitution; the prohibition of freedom of economic activity of
a person which is established in the law must in all cases be
clear, designed for the protection of the values (fair
competition, interests of the consumers, etc.) which are
consolidated in the Constitution. In the Constitutional Court
ruling of 31 May 2006 it was held that freedom and initiative of
economic activity of a person imply, among other things, freedom
of fair competition.
The Constitutional Court has also held that in a state under
the rule of law, the legislator has not only the right, but also
the duty to limit or even prohibit, by means of laws, the deeds
which essentially harm the interests of persons, society or the
state, or due to which there is a threat that such harm will
appear (Constitutional Court rulings of 8 May 2000, 10 June 2003,
29 December 2004, 10 November 2005 and 21 January 2008); while
establishing in laws the kind of deeds which are contrary to law,
as well as establishing legal liability for the deeds that are
contrary to law, the legislator enjoys broad discretion which
also includes the discretion to establish the circumstances that
would determine the sanctions to be applied for violations of law
(Constitutional Court ruling of 10 November 2005); in the
Constitution, one has consolidated the concept of a democratic
state under the rule of law where the state not only seeks to
protect and defend the person and society from crimes and other
dangerous violations of law, but also is able to do it
efficiently (Constitutional Court rulings of 29 December 2004, 16
October 2006 and 21 January 2008). In a state under the rule of
law the general principle of law cannot be disregarded whereby
one may not enjoy any profit from a violation of law committed by
him (Constitutional Court ruling of 14 March 2006).
On the other hand, in the Constitutional Court acts it has
been also more than once held that, under the Constitution, it is
permitted to limit the rights and freedoms of individuals if the
following conditions are observed: this is done by law; these
restrictions are necessary in the democratic society in order to
protect the rights and freedoms of other persons as well as the
values enshrined in the Constitution together with the
constitutionally important objectives; the restrictions do not
deny the nature and essence of the rights and freedoms; the
constitutional principle of proportionality is followed.
In the Constitutional Court ruling of 31 May 2006 it was
held that even though certain relations of economic activity may
be regulated only by laws, whereas the others may be regulated by
Government resolutions and some of them—by substatutory legal
acts of lower legal power, under the Constitution, the essential
conditions for economic activity and prohibitions as well as
limitations having essential impact on the said activity and
various sanctions for certain violations of law may be
established only by means of a law; thus, it is only by means of
a law that it is permitted to establish measures of economic
influence, which may have an essential impact on the economic
activity, and which may be applied when the established
obligations are not carried out or are carried out improperly. It
is also to be applied to the so-called economic sanctions
ascribed to the institute of administrative liability, which
create preconditions to make a negative impact on the economic
situation of the subjects of economy which are brought to legal
liability (Constitutional Court rulings of 3 November 2005 and 21
January 2008).
15. In the context of the constitutional justice case at
issue, it is to be emphasised that, as it has been mentioned,
buying-up of scrap and waste of non-precious metals meant for
realisation is a licensed activity; the licence is issued if an
economic entity meets certain necessary requirements. There are
not and there may be not any legal arguments which would allow
stating that, purportedly, licensing of buying-up of scrap and
waste of non-precious metals meant for realisation and
establishment of the requirements for the persons engaged in this
economic activity are constitutionally groundless (inter alia,
and, in particular, taking account of the fact that one may try
to sell to the buyers-up also such scrap and waste of non-
precious metals meant for realisation, which were acquired upon
seizing somebody else's property, i.e. upon commission of a
criminal deed). Compliance with the conditions of this licensed
activity and its observation are a necessary precondition for
defence of the values which are enshrined in the Constitution,
inter alia the ownership rights, human health, public order, the
system of the economy of the state, the financial order, as well
as fair competition.
16. It needs to be noted that the legislator has the powers
to establish not only the necessary requirements which must be
followed by the economic entities who seek to get the licenses
for engagement into buying-up of scrap and waste of non-precious
metals meant for realisation, but also the requirements which
must be followed by the persons who have been granted such
licences, as well as the coercive measures (sanctions) which must
be applied for violations of such requirements. One is to draw a
presumption that all economic entities, who engage themselves
into licensed activity under the held licences, are aware of and
understand the conditions which are enshrined in the legal acts
and which they must follow, as well as that they also know that
upon violation of some of these conditions, the sanctions as well
as the coercive measures established by laws will be applied to
them. Freedom of economic entity that violated the rules of fair
competition consolidated in the licence not only may, but usually
also must be limited (also by applying prohibition sanctions).
17. In this context it needs to be noted that, as it has
been held in the Constitutional Court ruling of 21 January 2008
(adopted in the constitutional justice case, in which inter alia
subsequent to the petitions of the Supreme Administrative Court
of Lithuania and the Vilnius Regional Administrative Court, the
petitioners, it was investigated whether the provisions of the
Republic of Lithuania Law on Alcohol Control, as well as the
legal regulation established by the Government which did not
permit not to abolish the validity of the licence, were not in
conflict with the Constitution), certain laws (and the
substatutory legal acts which were issued on the basis of these
laws) establish the so-called preventive measures (they are often
called this way explicitly) which are not fully comparable to
punishments or administrative penalties; the essence of
preventive measures is application of certain limitations to the
person in order that this person would not commit the deeds which
are contrary to law, to commit which he is inclined and which he
committed until a corresponding preventive measure was imposed
upon him, and in order that the public interest and the rights of
other persons would be protected; the preventive measures (which
may be more or less different from the "usual" punishments or
administrative penalties) are prohibition sanctions; regardless
of the particularity of preventive measures, there is no ground
not to consider them as sanctions in general, because preventive
measures, as well as "usual" punishments and administrative
penalties, make negative impact on the implementation of the
corresponding rights of persons, they must always be imposed by a
decision of a competent institution when reacting to such
behaviour of the person which is not tolerated by law—they are
always a response of the public power to the deeds which violate
the public interest, which are prohibited by law and which have
been committed by that person, and they are applied according to
the sanction of the corresponding legal norm; in addition, the
same requirements of justice, proportionality, expedience and
lawfulness (including the procedural one) are applied to
preventive measures as to "usual" punishments or administrative
penalties; the compliance of preventive measures (applied not
only to natural but also to the legal persons) which are
established in various laws with the Constitution has been the
matter of investigation in constitutional justice cases
considered by the Constitutional Court; in addition, the
jurisprudence of the Constitutional Court also notes the
preventive importance of "usual" punishments and administrative
penalties.
18. The prohibition sanction which is established in the
Rules (wording of 31 August 2004), as well as the preventive
measure—deletion of the address of the place of buying-up from
the licence—are applied for violations of the Law on Buying-up
Scrap and Waste of Non-Precious Metals Meant for Realisation, of
the said Rules, as well as of other legal acts (inter alia
resolutions of the Government, orders of the Minister of
Economy), which regulate buying-up of scrap and waste of non-
precious metals meant for realisation. It has been mentioned that
deletion of the address of the place of buying-up from the
licence (as well as other sanctions established in the Rules
which are applied to buyers-up for committed violations of law)
is provided for in Article 3 (wording of 13 April 2004) of the
Law on Buying-up Scrap and Waste of Non-Precious Metals Meant for
Realisation; the grounds for its application are enshrined inter
alia in Article 4 (wording of 13 April 2004) of this law.
19. Deletion of the place of buying-up from the licence is
such a sanction, as well as a preventive measure, whereby a
negative impact for the financial, economic situation of the
violator of law—economic entity—is made by not permitting him to
engage in the corresponding licensed activity in a certain place;
by this prohibition sanction, one seeks not only and not as much
to punish the violator of law—an economic entity—but, first of
all, to prevent the licence holding economic entity to implement
the corresponding activity at a certain place whose address is
written in the licence, and to prevent the one who violated the
imperative requirements of law—the conditions of the licensed
activity—from engaging in the corresponding activity in that
place in order that no harm would be made to the values which are
protected and defended by law; it is considered that if such
economic entity were permitted to continue with the activity
specified in the licence in the place where the violation was
committed, there would be a threat that one would harm the public
interest and various values which are enshrined in and protected
and defended by the Constitution. However, it needs to be
emphasised that upon application of the said prohibition sanction
to the economic entity, it is not removed from the corresponding
market in general, because after the deletion of the address of
the place of buying-up from the licence, the validity of that
licence is neither suspended (save the cases when two addresses
of the places of buying-up would be deleted from the licence of
the economic entity for violations of law within one year), nor
abolished.
20. The consolidation of strict (for the violators of law)
sanctions for violations of law in itself (without assessment of
the character, danger (gravity), extent, other features and other
circumstances) cannot be construed as unfair or inadequate for
that violation of law (Constitutional Court rulings of 3 November
2005 and 21 January 2008). This provision of the official
constitutional doctrine is to be applied also to the prohibition
sanctions (Constitutional Court ruling of 21 January 2008).
It needs to be held that the prohibition sanction—deletion
of the address of the place of buying-up from the licence—
established in Article 3 (wording of 13 April 2004) of the Law on
Buying-up Scrap and Waste of Non-Precious Metals Meant for
Realisation and in Item 34 of the Rules (wording of 31 August
2004) in itself cannot raise doubts regarding the compliance with
the constitutional principles of justice and proportionality, and
other requirements of a state under the rule of law. After all,
if the economic entity that violated the essential conditions
(which were known and comprehensible to the said entity) of being
in that market would not be applied the corresponding prohibition
sanction, one could reasonably state that the corresponding
violations of law are tolerated, fair competition is not
protected and defended and that the rights and legitimate
interests of other persons are not protected. This prohibition
sanction in itself is not to be considered as too strict,
inadequate or disproportionate to the committed violation of
law—violation of the conditions of the licensed activity—
therefore, in itself it is not unfair.
21. The Constitution shall be an integral act (Paragraph 1
of Article 6 of the Constitution). In the acts of the
Constitutional Court it has been held more than once that: all
the constitutional provisions are interrelated so that the
content of some provisions of the Constitution determine the
content of its other provisions; all provisions of the
Constitution constitute a harmonious system; there is a balance
among the values entrenched in the Constitution; it is not
permitted to oppose any provision of the Constitution against
other provisions of the Constitution, nor to construe them so
that the content of any other constitutional provision might be
distorted or denied, since then the essence of the entire
constitutional regulation would be distorted and the balance of
the constitutional values would be disturbed.
In the context of the constitutional justice case at issue,
in which it is disputed whether Item 34 of the Rules (wording of
31 August 2004), to the extent that it, according to the Klaipëda
Regional Administrative Court, the petitioner, does not provide
for a possibility, after having taken account of the nature of
the violation, liability mitigating and other significant
circumstances, not to apply the sanction—deletion of the address
of the place of buying-up from the licence—as well as that,
according to the petitioner, it does not establish the duration
of such deletion, is not in conflict with Paragraph 3 of Article
46 of the Constitution, and with the constitutional principles of
justice and a state under the rule of law, one needs to take
account not only of these provisions of the Constitution
specified by the Klaipëda Regional Administrative Court, the
petitioner, but also of the provision of Paragraph 1 of Article
30 of the Constitution that the person whose constitutional
rights or freedoms are violated shall have the right to apply to
court, as well as of Article 109 of the Constitution in which it
is established that in the Republic of Lithuania, justice shall
be administered only by courts (Paragraph 1); that while
administering justice, the judge and courts shall be independent
(Paragraph 2); when considering cases, judges shall obey only the
law (Paragraph 3); and that the court shall adopt decisions in
the name of the Republic of Lithuania (Paragraph 4).
While construing Article 109 of the Constitution, the
Constitutional Court has held in its acts (inter alia rulings of
21 December 1999, 9 May 2006, 6 June 2006, 27 November 2006, 24
October 2007 and 21 January 2008) more than once that courts,
when they administer justice, must ensure the implementation of
law expressed in the Constitution, laws and other legal acts, to
guarantee the supremacy of law, to protect human rights and
freedoms. A duty to courts stems from Paragraph 1 of Article 109
of the Constitution to consider cases justly and objectively and
to adopt reasoned and reasonable decisions (Constitutional Court
rulings of 15 May 2007 and 24 October 2007). The principle of
justice entrenched in the Constitution as well as the provision
that justice is administered solely by courts mean that the
constitutional value is not the adoption of a decision in court,
but rather the adoption of a just court decision; the
constitutional concept of justice implies not only a formal and
nominal justice administered by the court, not only an outward
appearance of justice administered by the court, but, most
importantly, such court decisions (other court final acts), which
by their content are not unjust; the justice administered only
formally by the court is not the justice which is consolidated in
and protected and defended by the Constitution (Constitutional
Court rulings of 21 September 2006, 24 October 2007, 21 January
2008 and 20 February 2008).
The jurisprudence of the Constitutional Court more than once
stated the imperative arising from the constitutional principle
of a state under the rule of law and other provisions of the
Constitution whereby the person who believes that his rights and
freedoms have been violated has an absolute right to an
independent and impartial trial, an arbiter, which would settle
the dispute; and whereby the constitutional right of the person
to apply to court both regarding the rights which are directly
consolidated in the Constitution and regarding the acquired
rights may not be artificially restricted or its exercising may
not be unreasonably aggravated. In the Constitutional Court
decision of 8 August 2006 and 21 January 2008, it was held that
if the constitutional right of the person to apply to court were
not ensured, the generally recognised legal principle ubi ius,
ibi remedium—if there is a certain right (freedom), there must be
a measure for its protection—would be disregarded, as well as
that such legal situation where a certain right or freedom of the
person cannot be defended, also by means of the judicial
procedure, although the person himself thinks that this right or
freedom has been violated, is, under the Constitution,
impossible, nor does the Constitution tolerate this.
22. The constitutional principles of justice and a state
under the rule of law also imply that the measures established by
the state for violations of law must be proportionate (adequate)
to the violation of law and must comply with the lawful and
universally significant objectives sought and do not have to
restrain a person obviously more than it is necessary in order to
reach these objectives; there must be a fair balance
(proportionality) between the objective sought to punish the
violators of law and to ensure the prevention of the violations
of law and the measures chosen for reaching this objective; the
constitutional principle of justice requires to differentiate the
established penalties so that while applying them, one could take
account of the nature of the violation of law, of the
circumstances mitigating the liability and other circumstances
(Constitutional Court rulings of 6 December 2000, 2 October 2001,
26 January 2004, 3 November 2005, 10 November 2005 and 21 January
2008).
23. While assessing Item 34 (to the extent that, according
to the Klaipëda Regional Administrative Court, the petitioner, it
does not provide for a possibility, after having taken account of
the nature of the violation, liability mitigating and other
significant circumstances, not to apply the sanction—deletion of
the address of the place of buying-up of from the licence—as well
as that, according to the petitioner, it does not establish the
duration of such deletion) of the Rules (wording of 31 August
2004) in the aspect of its relation with the provisions (which
are closely linked to the principles of justice and a state under
the rule of law specified by the Klaipëda Regional Administrative
Court, the petitioner) of Paragraph 1 of Article 30 and Article
109 of the Constitution, it needs to be noted that, as it has
been mentioned, under Item 33.3 of the Rules (wording of 31
August 2004), the buyers-up shall have the right, under the
procedure established by the laws, to lodge a complaint against
the decision regarding the refusal to grant the licence,
suspension or abolition of the validity of the licence, deletion
of the address of the place of buying-up from the licence, or
refusal to enter the address of the place of buying-up into the
licence.
24. In this aspect, the clause "under the procedure
established by the laws" of Item 33.3 of the Rules (wording of 31
August 2004) is of particular importance.
It has been held in this Constitutional Court ruling that
one may lodge a complaint against the decisions of the executive
institution of the municipality to delete the address of the
place of buying-up from the licence, while the court shall have
the powers to decide regarding application of this sanction. It
has also been held that the Law on Buying-up Scrap and Waste of
Non-Precious Metals Meant for Realisation (wording of 23 October
2001 with subsequent amendments) does not regulate the relations
linked to resolving disputes regarding the application of the
said prohibition sanction, inter alia those linked to the powers
of the court while considering corresponding complaints.
In this context, it needs to be noted that Paragraph 5
(wording of 8 April 2003) of Article 4 of the Law on the
Proceedings of Administrative Cases provides that "if there is a
conflict between the norms of this law and other laws (save
special laws), the court must follow the norms of the Law on the
Proceedings of Administrative Cases".
If the relations linked to the application of the
prohibition sanction—deletion of the place of buying-up from the
licence—inter alia those linked the powers of a court while
considering corresponding complaints were regulated in the Law on
Buying-up Scrap and Waste of Non-Precious Metals Meant for
Realisation, this law, with regard to the Law on the Proceedings
of Administrative Cases (wording of 19 September 2000 with
subsequent amendments and supplements) would be considered as lex
specialis. The essence of the principle lex specialis derogat
legi generali is that when there is a competition between general
and special norms, the special norm shall be applied
(Constitutional Court ruling of 21 January 2008). However, as it
has been mentioned, because of the fact that the Law on Buying-up
Scrap and Waste of Non-Precious Metals Meant for Realisation does
not regulate these relations, it cannot be considered as the
"special law" specified in Paragraph 5 (wording of 8 April 2003)
of Article 4 of the Law on the Proceedings of Administrative
Cases; while considering corresponding complaints, one must
follow the Law on the Proceedings of Administrative Cases
(wording of 19 September 2000 with subsequent amendments and
supplements). Thus, it is necessary to elucidate whether under
the Law on the Proceedings of Administrative Cases (wording of 19
September 2000 with subsequent amendments and supplements), a
court, which considers a complaint of an economic entity
regarding the decision of the competent institution—the executive
institution of the municipality—to delete the address of the
place of buying-up held by the buyer-up from the licence for a
violation of law committed by that economic entity, may, after
having taken account of the nature of the violation, liability
mitigating and other significant circumstances, decide not to
apply the sanction.
Under Item 2 of Paragraph 1 (wordings of 19 September 2000,
11 November 2004 and 7 June 2007) of Article 15 of the Law on the
Proceedings of Administrative Cases, administrative courts shall
decide cases related to "lawfulness of acts passed and actions
performed by the entities of municipal administration, also the
lawfulness and validity of refusal by the said entities to
perform the actions within the remit of their competence or delay
in performing the said actions"; the entities of municipal
administration means "entities of public administration acting as
municipal institutions or establishments, their officials or
state servants" (Paragraph 9 of Article 2 (wording of 7 June
2007) of the Law on the Proceedings of Administrative Cases).
Under Items 1, 2, 3 and 4 (wordings of 19 September 2000 and 7
June 2007) of Article 88 of this Law, upon considering the case,
the administrative court shall adopt one of these decisions: (1)
to reject the complaint (petition) as groundless; (2) to meet the
complaint (petition) and to revoke the contested act (or
paragraph thereof) or to oblige the corresponding entity of
administration to remove the committed violation or to implement
a different order of the court; (3) to meet the complaint
(petition) and to oblige a subject of municipal administration to
accordingly implement the law, the Government resolution or other
legal act; (4) to meet the complaint and to settle the dispute in
any other manner provided for by the law. Paragraph 1 of Article
89 (wording of 19 September 2000) of the Law on the Proceedings
of Administrative Cases provides that a contested act (or a part
thereof) has to be abolished if it is (1) illegal in essence, i.
e. conflicting by its content with the legal acts of higher
power; (2) illegal by reason of being adopted by an entity of
administration which is not competent; (3) illegal as it was
adopted in violation of the basic procedures, especially the
rules which were to ensure objective evaluation of all
circumstances and validity of the decision; Paragraph 2 of this
article establishes that "the contested act (or a part thereof)
may also be abolished on other grounds recognised as important by
the administrative court".
Paragraph 1 of Article 89 (wording of 19 September 2000) of
the Law on the Proceedings of Administrative Cases introduces a
list of cases when the court, while considering the complaint,
must abolish the contested act or a part thereof, however, this
list, taking account of Paragraph 2 of this article, is not to be
considered as final, as the court may abolish the contested act
(or a part thereof) on other grounds than those established in
Paragraph 1 of Article 89 (wording of 19 September 2000) of the
Law on the Proceedings of Administrative Cases, if it recognised
them as important; neither in the said article, nor in any other
place of this law the list of such grounds is introduced; it is
reserved for the court's discretion. In this context, it needs to
be emphasised that Paragraph 2 of Article 89 (wording of 19
September 2000) of the Law on the Proceedings of Administrative
Cases is to be construed taking account of the fact that, as it
has been mentioned, the justice administered only formally by the
court is not the justice which is consolidated in and protected
and defended by the Constitution; that, when adopting a decision
in a case, the court must always follow the laws and law, inter
alia the principles of justice, reasonableness, proportionality
and fairness which stem from the Constitution. Therefore, when
adopting the decision in the case subsequent to the complaint of
an economic entity, the buyer-up, regarding the decision of the
executive institution of the municipality to apply the
prohibition sanction—to delete the address of the place of
buying-up from the licence held by him for the corresponding
violation of law committed by that economic entity—to that
economic entity, the court must not only establish whether that
violation of law for which this prohibition sanction is
established was really committed and whether it was committed by
that economic entity, but also assess the nature of that
violation of law and all the significant circumstances, as well
as liability mitigating circumstances.
If Paragraph 2 of Article 89 (wording of 19 September 2000)
of the Law on the Proceedings of Administrative Cases were
construed that, purportedly, it does not permit the court, upon
assessment of all these circumstances, to decide that the
prohibition sanction—deletion of the address of the place of
buying-up from the licence—does not have to be applied to the
economic entity, as it is obviously too big, disproportionate
(inadequate) to the committed violation of law and therefore
unfair, one would have to recognise that this paragraph (to the
corresponding extent) is in conflict with Paragraph 1 of Article
109 of the Constitution, with the constitutional principles of
justice and a state under the rule of law. However, this
paragraph is not construed like this; on the contrary, it needs
to be held that, under the Law on the Proceedings of
Administrative Cases (wording of 19 September 2000 with
subsequent amendments and supplements), the court which considers
the complaint of the buyer-up regarding the decision of the
executive institution of the municipality to delete the address
of the place of buying-up from the licence held by that economic
entity for the corresponding violation of law has the powers,
after having taken account of the nature of the violation,
liability mitigating and other significant circumstances, to
decide that the sanction—deletion of the address of the place of
buying-up from the licence—is for that economic entity obviously
too big, disproportionate (inadequate) for the committed
violation of law, therefore, unfair, thus, is not to be applied
to that violator of law for the said violation of law. While
construing the legal regulation established in the Law on the
Proceedings of Administrative Cases (wording of 19 September 2000
with subsequent amendments and supplements) in this way, there is
no legal ground to state that it creates preconditions for
infringement of the rights of the economic entity to whom the
executive institution of the municipality applied the said
prohibition sanction and in this aspect deviates from the
imperatives of justice and a state under the rule of law which
are enshrined in the Constitution and that it violates Paragraph
3 of Article 46 of the Constitution, or any other provisions of
Article 109 of the Constitution.
Alongside, it needs to be held that the legal regulation (to
the extent that it is disputed by the Klaipëda Regional
Administrative Court, the petitioner) established in Item 34 of
the Rules (wording of 31 August 2004) also does not prevent the
court from deciding, after having assessed all these
circumstances, that the prohibition sanction—deletion of the
address of the place of buying-up from the licence—applied to the
economic entity is obviously too big, disproportionate
(inadequate) for the committed violation of law, therefore,
unfair, and thus, is not to be applied to that economic entity
for the said violation of law.
25. In this aspect, the discussed legal situation is not
analogous to the legal situation considered in the constitutional
justice cases in which the Constitutional Court rulings of 3
November 2005 and 21 January 2008 were adopted. In these
constitutional justice cases it was investigated whether inter
alia the legal regulation established accordingly in the Republic
of Lithuania Law on Tobacco Control and the Law on Alcohol
Control which, with regard to the Law on the Proceedings of
Administrative Cases (wording of 19 September 2000 with
subsequent amendments and supplements) had to be considered as
lex specialis, was not in conflict with the Constitution and,
therefore, it was not possible to state that the court, following
the Law on the Proceedings of Administrative Cases (wording of 19
September 2000 with subsequent amendments and supplements), had
the powers to decide, after having taken account of the nature of
the violation, liability mitigating and other significant
circumstances, that the corresponding "economic sanction" is not
to be applied to the violator of law who applied to court; in
addition, the Law on Alcohol Control limited (to a certain
extent) the right of the corresponding entity to apply to court
in general.
26. The fact that under the Law on the Proceedings of
Administrative Cases (wording of 19 September 2000 with
subsequent amendments and supplements), the court which considers
the complaint of the buyer-up regarding a decision of the
executive institution of the municipality to delete the address
of the place of buying-up from the licence held by that economic
entity for the corresponding violation of law has the powers,
after having taken account of the nature of the violation,
liability mitigating and other significant circumstances, to
decide that the sanction—deletion of the address of the place of
buying-up from the licence—is for that economic entity obviously
too big, disproportionate (inadequate) for the committed
violation of law, therefore, unfair, thus, is not to be applied
to that violator of law for the said violation of law, does not
mean that the court may disregard the principled provision that
the said economic entity, the buyer-up, violated the essential
conditions (which were known and comprehensible to the said
entity) of being in the market of buying-up scrap and waste of
non-precious metals meant for realisation—it did not follow the
imperative requirements of law—and that this market must be
protected from such participants who, while being in that market,
acted not according to, but against its rules. Therefore, such
cases when the said prohibition sanction does not have to be
applied may only be very rare, and exceptional. It would be
constitutionally unjustifiable if by not applying the prohibition
sanction, the violator would remain unpunished for an obvious
violation of law committed by him. However, if the court decided
not to apply the prohibition sanction, in the corresponding legal
act it should be clearly and rationally reasoned why this
sanction is not to be applied—what values enshrined in the
Constitution and protected and defended by it, would be violated
by deleting the address of the place of buying-up from the
licence. Otherwise, one would have to hold that the decision of
the court ignores the public interest. In addition, it needs to
be held that, as the Constitutional Court stated in its rulings
of 29 December 2004 and 21 January 2008, under the Constitution,
the state must seek to protect and defend the person and society
from dangerous violations of law, and also it has to be able to
do it efficiently. It would be not the justice that is
consolidated in the Constitution.
27. It has been mentioned that even though under the Law on
Buying-up Scrap and Waste of Non-Precious Metals Meant for
Realisation (wording of 23 October 2001 with subsequent
amendments) the address of the place of buying-up is deleted from
the licence held by the buyer-up without specifying the term, it
is not necessarily deleted from the licence for good—if the place
of buying-up meets the established requirements, it may be
entered into the licence again; however, in certain cases when
the prohibition sanction is applied for the violation of law
committed by the economic entity, upon taking account of the
nature of that violation of law, liability mitigating and other
significant circumstances, the address of the place of buying-up
must be deleted from the licence held by the buyer-up namely for
good and it must not be permitted to enter it into the licence
again. It has also been mentioned that this law does not include
any provisions from which one could decide in what cases and
under what circumstances (as well as after how much time) it is
to be permitted to enter that address of the place of buying-up
into the licence which previously was deleted from the licence
held by the buyer-up (inter alia for the corresponding violation
of law committed by that economic entity) by the competent
institution, and in which cases and under which circumstances (as
well as after what period of time)—not to be permitted. In this
respect, the legal regulation established in the law is not
sufficient, it contains a gap. It has also been mentioned that,
under Item 33.3 of the Rules, the buyer-up shall have the right,
under the procedure established by the laws, to lodge a complaint
against the decision of the competent institution—executive
institution of the municipality—regarding the refusal to enter
the address of the place of buying-up into the licence.
Therefore, it needs to be held that one may also lodge a
complaint to court against such decisions of the executive
institutions of the municipality, when it is refused to enter
that address of the place of buying-up into the licence which
formerly had been deleted from the licence held by the buyer-up
by the executive institution of the municipality inter alia for
the corresponding violation of law committed by that economic
entity. When adopting a decision in such a case, the court must
inter alia follow not only the laws which, as it has been
mentioned, include legal gaps, but also law, inter alia the
principles of justice, reasonableness, proportionality and good
faith which stem from the Constitution.
28. It needs also to be emphasised that in such cases, the
decisions of the court may fill in the corresponding gap of the
legal regulation only ad hoc, only as regards a particular social
relation. The official constitutional doctrine of legal gaps
(without excluding also legislative omission) set forth inter
alia in the Constitutional Court decision of 8 August 2006,
ruling of 7 June 2007 and decision of 1 February 2008 is to be
mutatis mutandis applied to the discussed situation. In this
context it needs to be noted that absence of the corresponding
legal regulation in the law (in the considered case—the Law on
Buying-up Scrap and Waste of Non-Precious Metals Meant for
Realisation (wording of 23 October 2001 with subsequent
amendments)) does not mean that the courts that have to apply the
provisions of the law which include legal gaps may decide not to
consider those cases only because of the fact that the legislator
has not yet properly regulated the corresponding relations by the
law (or, it is, of course, not to be applied to the discussed
legal situation, the legal regulation which had been established
by the legislator was recognised as being in conflict with the
Constitution) (Constitutional Court ruling of 7 June 2007).
29. Therefore, the mere fact that, under Item 34 of the
Rules (wording of 31 August 2004) (as well as under the Law on
Buying-up Scrap and Waste of Non-Precious Metals Meant for
Realisation (wording of 23 October 2001 with subsequent
amendments)), the address of the place of buying-up is deleted
from the licence held by the buyer-up without specifying the term
of such deletion, is not to be assessed as deviation from the
imperatives of justice and a state under the rule of law which
are enshrined in the Constitution, and as violation of Paragraph
3 of Article 46 of the Constitution.
30. Taking account of the arguments set forth, one is to
draw a conclusion that Item 34 of the Rules (wording of 31 August
2004) is not in conflict with Paragraph 3 of Article 46 of the
Constitution, and with the constitutional principles of a state
under the rule of law and justice.
Conforming to Articles 102 and 105 of the Constitution of
the Republic of Lithuania and Articles 1, 53, 54, 55 and 56 of
the Law on the Constitutional Court of the Republic of Lithuania,
the Constitutional Court of the Republic of Lithuania has passed
the following
ruling:
To recognise that Item 34 (Official Gazette Valstybës
ţinios, 2004, No. 134-4858) of the Licensing Rules for Buying-up
Scrap and Waste of Non-Precious Metals Meant for Realisation
(wording of 31 August 2004) approved by Government of the
Republic of Lithuania Resolution No. 177 "On Approving the
Licensing Rules for Buying-up Scrap and Waste of Non-Precious
Metals Meant for Realisation" of 6 February 2002 (wording of 31
August 2004) is 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:
Egidijus Kűris
Kćstutis Lapinskas
Zenonas Namavičius
Ramutë Ruđkytë
Vytautas Sinkevičius
Stasys Stačiokas
Romualdas Kćstutis Urbaitis