Case No. 05/08
THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA
RULING
ON THE COMPLIANCE OF ITEMS 1 AND 2 OF RESOLUTION OF THE
GOVERNMENT OF THE REPUBLIC OF LITHUANIA NO. 226 "ON
APPROVING THE TYPES, AMOUNTS AND PRINCIPLES OF
APPLICATION OF LEVIES OF THE KLAIPĖDA STATE SEAPORT" OF
13 FEBRUARY 2002 AND ITEM 1 OF RESOLUTION OF THE
GOVERNMENT OF THE REPUBLIC OF LITHUANIA NO. 226 "ON
APPROVING THE TYPES, MAXIMUM AMOUNTS AND PRINCIPLES OF
APPLICATION OF LEVIES OF THE KLAIPĖDA STATE SEAPORT" OF
13 FEBRUARY 2002 (WORDING OF 27 MAY 2003) WITH THE
CONSTITUTION OF THE REPUBLIC OF LITHUANIA
12 February 2010
Vilnius
The Constitutional Court of the Republic of Lithuania,
composed of the Justices of the Constitutional Court Armanas
Abramavičius, Toma Birmontienė, Pranas Kuconis, Kęstutis
Lapinskas, Zenonas Namavičius, Ramutė Ruškytė, Egidijus Šileikis,
Algirdas Taminskas, and Romualdas Kęstutis Urbaitis,
with the secretary of the hearingDaiva Pitrėnaitė,
in the presence of the representatives of the Government of
the Republic of Lithuania, the party concerned, who were Janina
Žukauskienė, Head of the Law Division of the Ministry of
Transport and Communications of the Republic of Lithuania,
Saulius Kerza, Head of the State Property and Public Procurement
Division of the Ministry of Transport and Communications, and
Juozas Darulis, Director of the Water and Railway Transport
Department of the Ministry of Transport and Communications,
pursuant to Articles 102, 105 of the Constitution Republic
of Lithuania and Article 1 of the Law on the Constitutional Court
of the Republic of Lithuania, on 10 February 2010, in its public
hearing heard constitutional justice Case No. 05/08 subsequent to
the petition of the Supreme Administrative Court of the Republic
of Lithuania, the petitioner, requesting to investigate whether
Item 1 of Resolution of the Government of the Republic of
Lithuania No. 226 "On Approving the Types, Amounts and Principles
of Application of Levies of the Klaipėda State Seaport" of 13
February 2002 as well as the Types and Amounts of Levies of the
Klaipėda State Seaport approved by the said item, Item 2 of the
same resolution as well as the Principles of Application of
Levies of the Klaipėda State Seaport approved by the said item,
and Item 1 of Resolution of the Government of the Republic of
Lithuania No. 226 "On Approving the Types, Maximum Amounts and
Principles of Application of Levies of the Klaipėda State
Seaport" of 13 February 2002 (wording of 27 May 2003) and the
Types and the Maximum Amounts of Levies of the Klaipėda State
Seaport approved by the said item, are not in conflict with Item
15 of Article 67, Paragraph 3 of Article 127 of the Constitution
of the Republic of Lithuania and with the constitutional
principle of a state under the rule of law.
The Constitutional Court
has established:
I
The Supreme Administrative Court of Lithuania, the
petitioner, was investigating an administrative case. By its
ruling, the said court suspended the consideration of the case
and applied to the Constitutional Court with a petition,
requesting to investigate whether Items 1 and 2 of Government
Resolution No. 226 "On Approving the Types, Amounts and
Principles of Application of Levies of the Klaipėda State
Seaport" of 13 February 2002 (hereinafter also referred to as
Government resolution No. 226 of 13 February 2002) and Item 1 of
the same Government resolution (wording of 27 May 2003) are not
in conflict with Item 15 of Article 67, Paragraph 3 of Article
127 of the Constitution and with the constitutional principle of
a state under the rule of law.
II
The petition of the Supreme Administrative Court of
Lithuania, the petitioner, is substantiated by the following
arguments.
The disputed Government resolution established the types and
essential elementsthe amounts (maximum amounts), principles of
applicationof the levy of the Klaipėda State Seaport
(hereinafter also referred to as the port levy) which, according
to the petitioner, according to its essence and nature is to be
regarded as a compulsory payment. While invoking the official
constitutional doctrine, the petitioner maintains that the types
of the port levy and the said elements should be established by a
law, adopted by the Seimas, but not by means of a resolution of
the Government.
The fact that the port levy is collected by the Klaipėda
State Seaport Authority (hereinafter also referred to as the Port
Authority), that it is not included into the state budget and is
collected for using the port, does not remove the doubts as
regards the compliance of the disputed legal regulation with the
Constitution. In the opinion of the petitioner, the port levy is
a compulsory fee regulated by norms of public law and the
functions of this fee are virtually no different from the
traditional functions of taxesto receive income necessary for
discharging state functions and regulation of economic processes,
whereas the compulsory payments and levies specified in Item 15
of Article 67 and Paragraph 3 of Article 127 of the Constitution
may be established for certain services or state property use and
they do not necessarily have to be paid to the state budget.
In the opinion of the petitioner, even if the port levy did
not match the concept of the levy specified in Paragraph 3 of
Article 127 of the Constitution, or that of the compulsory
payments specified in Item 15 of Article 67 of the Constitution,
nevertheless, the constitutional principle of a state under the
rule of law gives rise to the requirement that the types and
essential elements (inter alia the amounts (maximum amounts)) of
this levy and the principles of its application be established by
means of a law.
III
In the course of the preparation of the case for the
Constitutional Court hearing, written explanations were received
from J. Žukauskienė, Director of the Legal Department of the
Ministry of Transport and Communications, S. Kerza, Head of the
Juridical Division of the same department, and J. Darulis,
Director of the Water Transport Department of the Ministry of
Transport and Communications, wherein it is maintained that Items
1 and 2 of Government resolution No. 266 of 13 February 2002 and
Item 1 of the same Government resolution (wording of 27 May 2003)
are not in conflict with the Constitution.
According to the representatives of the party concerned, the
port levy is not a state tax. This levy is not within the area of
regulation of the Republic of Lithuania Law on Tax Administration
and, according to its object or the subject rendering services,
it is not a state levy. The representatives of the Government
maintain that the port levy is a reward of the possessor of a
ship to the state enterprise Seaport Authority for services
rendered directly and indirectly, which the possessor of the ship
receives when he is making use of the port and its
infrastructure. Under the Republic of Lithuania Law on the Basics
of Transport Activity, these funds are used only to secure the
functioning of the port infrastructure.
The disputed Government resolution was adopted in the course
of implementation of the provisions of the State and Municipal
Enterprise Law of the Republic of Lithuania whereby a state
enterprise may establish inter alia the prices and tariffs of the
services rendered by it, with the exception of the situations
when such prices and tariffs are established by the Government,
the municipal council or another institution established by laws,
and in the course of implementation of Paragraph 2 of Article 34
of the Law on the Klaipėda State Seaport whereby the types of
port levies, their maximum amounts, and the principles of their
application shall be established by the Government.
The Government, while approving the types of levies of the
Klaipėda State Seaport and their maximum amounts by the disputed
resolution, did not expand the object of the levy (port levy)
established in the Law on the Basics of Transport Activity and
the Law on the Klaipėda State Seaport.
The representatives of the Government maintain that the
Klaipėda State Seaport must be dynamic and be able to adapt fast
to changing economic conditions. If the types of port levies,
their maximum amounts, and the procedure of their application
were established by means of a law, the Klaipėda State Seaport
would not be able to compete with other ports because of lengthy
procedures of adoption of laws.
IV
In the course of the preparation of the case for the
Constitutional Court hearing, written explanations were received
from Eglė Radušytė, the then Vice-minister of Justice of the
Republic of Lithuania, Valentinas Miltienis, the then Vice-
minister of Finance of the Republic of Lithuania, and Assoc.
Prof. Bronius Sudavičius who works at the Department of
Constitutional and Administrative Law of the Faculty of Law of
Vilnius University.
V
At the Constitutional Court hearing, J. Žukauskienė, S.
Kerza and J. Darulis, the representatives of the Government, the
party concerned, virtually reiterated the arguments set forth in
the written explanations, answered to the questions of the
justices of the Constitutional Court, and submitted additional
explanations.
The Constitutional Court
holds that:
1. On 13 February 2002, the Government adopted Resolution
No. 226 "On Approving the Types, Amounts and Principles of
Application of Levies at Klaipėda State Seaport" wherein it was
inter alia established:
"Conforming to Article 34 of the Republic of Lithuania Law
on Klaipėda State Seaport (Official Gazette Valstybės žinios,
1996, No. 53-1245; 2000, No. 75-2265), the Government of the
Republic of Lithuania shall resolve:
1. To approve the types and amounts of levies of the
Klaipėda State Seaport (attached).
2. To approve the principles of application of levies of the
Klaipėda State Seaport (attached).
<...>
4. This resolution shall come into force as from 1 July
2002."
1.1. The Annex "The Types and Amounts of Levies of the
Klaipėda State Seaport" to Government resolution No. 226 of 13
February 2002 prescribed:
"THE TYPES AND AMOUNTS OF LEVIES OF THE KLAIPĖDA STATE SEAPORT
----------------------------------------------------------------+
Title of levy Amount of levy |
----------------------------------------------------------------+
I. Vessel levy |
1. For call to the port:
1.1. tramp vessel; liner cargo vessel* 2 litas per GT unit
1.2. liner train ferry and liner ro-ro 0.3 litas per GT
passenger vessel* unit
1.3. liner ro-ro cargo vessel and liner 1.35 litas per GT
vessel carrying only containers* unit
1.4. tramp vessel with GT less than 1000 0.5 litas per GT
units and fishing vessel holding a unit
fishing vessel classification
certificate
1.5. inland waterways vessel; non-propelled 0.8 litas per one
floating structure cubic metre
1.6. passenger (non ro-ro) vessel 0.8 litas per GT
unit
II. Navigation levy
2. For call to the port
2.1. tramp vessel; liner cargo vessel* 0.4 litas per GT
unit
2.2. liner ro-ro cargo vessel;* liner 0.2 litas per GT
vessel carrying only containers;* unit
passenger (non ro-ro) vessel
2.3. ro-ro passenger vessel; train ferry 0.1 litas per GT
unit
2.4. inland waterways vessel 0.2 litas per one
cubic metre
III. Berth levy
3. For berthing while carrying out cargo
handling operations:
3.1. cargo vessel 0.4 litas per GT
unit
3.2. ro-ro vessel; vessel carrying only 0.25 litas per GT
containers unit
4. For berthing (upon receiving a permit
from the state enterprise Klaipėda State
Seaport Authority) while not carrying out
any cargo handling operations:
4.1. cargo vessel 0.05 litas per GT
unit (as per one
day)
4.2. ro-ro vessel; vessel carrying only 0.04 litas per GT
containers unit (as per one
day
4.3. inland waterways vessel 0.02 litas per one
cubic metre (as per
one day)
IV. Tonnage levy
5. For call to the port for cargo
operations, save ro-ro vessels and
vessels carrying only containers:
5.1. cargo vessel 5.6 litas per GT
unit
5.2. for a tanker carrying oil and oil 6 litas per GT unit
products
6. For a vehicle loaded onto/unloaded from
ro-ro vessel:
6.1. a bus (more than 12 seats, including 20 litas per unit
driver's seat)
6.2. trailer; auto trailer; railcar; truck;
traction vehicle; roll trailer and
container on carrier in ro-ro
operations:
with cargo 20 litas per unit
without cargo 7 litas per unit
6.3. car; bus (no more than 12 seats, 12 litas per unit
including driver's seat)
7. For a container loaded by crane onto ro-
ro vessel carrying only containers/
unloaded by crane from ro-ro vessel
carrying only containers:
with cargo 20 litas per TEU
without cargo 7 litas per TEU
V. Sanitary levy
8. For the vessel's stay at the port:
up to 10 days inclusive 0.25 litas per GT
unit
from the 11th day for each following 0.025 litas per GT
day unit
VI. Passenger levy
|
9. for each passenger embarking/ 4 litas per one |
disembarking a vessel passenger |
----------------------------------------------------------------+
* The shipping lines must be registered under procedure
established by the Minister of Transport and Communications."
1.2. The Annex "The Principles of Application of Levies of
the Klaipėda State Seaport" to Government resolution No. 226 of
13 February 2002 prescribed:
"THE PRINCIPLES OF APPLICATION OF LEVIES OF THE KLAIPĖDA STATE
SEAPORT
1. The levies of the Klaipėda State Seaport (hereinafter
referred to as port levies) shall be collected by the state
enterprise Klaipėda State Seaport Authority.
2. At the Klaipėda State Seaport levies of the same amount
shall be collected from foreign vessels as from the vessels
registered in the Republic of Lithuania.
3. Foreign navy and other non-commercial vessels shall be
exempted from port levies under procedure established by the
Government of the Republic of Lithuania.
4. Vessel, navigation, berth, and sanitary levies shall be
computed according to the general tonnage (GT) specified in the
vessel measurements certificate computed in pursuance with the
International Convention on Tonnage Measurement of Ships of 23
June 1969 (TONNAGE 69).
5. Tonnage levy shall be computed:
5.1. for all vessels, save those specifies in Items 5.2 and
5.3according to the vessel's GT;
5.2. for ro-ro shipsfor every unit of means of transport;
for container twenty-foot equivalent unit (hereinafter referred
to as TEU) loaded onto the vessel/unloaded from the vessel by
means of a crane;
5.3. for vessels carrying only containersfor TEU loaded
onto the vessel/unloaded from the vessel by means of a crane.
6. For inland waterways vessel port levies shall be computed
according to the vessel's capacity module by applying the
formula:
M = LBT, where:
Mvessel's capacity module (in cubic metres);
Lbiggest length of the vessel (in metres);
Bbiggest width of the vessel (in metres);
Tmaximum draught of the vessel (in metres).
7. Passenger levy shall be computed for each passenger
embarking/disembarking a vessel.
8. Port levies shall be computed in litas."
2. On 27 May 2003, the Government adopted Resolution No. 651
"On Amending Some Resolutions and on Recognising Some Resolutions
of the Government of the Republic of Lithuania as No Longer
Valid" (hereinafter also referred to as Government resolution No.
651 of 27 May 2003), by Item 6 whereof it amended Government
resolution No. 266 of 13 February 2002in its title after the
word "types" the word "maximum" was entered (Item 6.1), in Item 1
thereof after the words "types and" the word "maximum" was
entered (Item 6.2), in the title of the Types and Amounts of
Levies of the Klaipėda State Seaport after the words "types and"
the word "maximum" was entered (Item 6.3). This Government
resolution came into force on 31 May 2003.
3. Summing up the discussed legal regulation, which was
entrenched in Government resolution No. 226 of 13 February 2002
(wordings of 13 February 2002 and 27 May 2003), whose provisions
are disputed in the constitutional justice case at issue, it
needs to be noted that:
- by Item 1 (wordings of 13 February 2002 and 27 May 2003)
of the said resolution the types, amounts, (maximum amounts) and
principles of application of levies of the Klaipėda State Seaport
were approved. The Annex "The Types and Amounts of Levies of the
Klaipėda State Seaport" (wording of 13 February 2002) and "The
Types and Maximum Amounts of Levies of the Klaipėda State
Seaport" (wording of 27 May 2003) to the said resolution
consolidated the vessel, navigation, berth, tonnage, sanitary and
passenger port levies paid for using the port (inter alia for
services rendered), whereas the amounts (maximum amounts) of the
port levies depended inter alia upon the type of vessel (in
establishing the vessel, navigation, berth, tonnage levies), the
duration of stay of the vessel at the port (in establishing the
sanitary levy), number of passengers (in establishing the
passenger levy);
- by Item 2 (wording of 13 February 2002) of the said
resolution the principles of application of levies of the
Klaipėda State Seaport were approved. The Annex "The Principles
of Application of Levies of the Klaipėda State Seaport" of the
resolution inter alia established the rules (formulas) for
computing the vessel, navigation, berth, tonnage and sanitary
levies, which were applied correspondingly by taking account of a
vessel's tonnage, capacity module etc.
4. It needs to be noted that, on 5 March 2008, the
Government adopted Resolution No. 245 "On Approving the Types,
Maximum Amounts and Principles of Application of Levies of the
Klaipėda State Seaport", which came into force on 1 July 2008.
Item 1 of this Government resolution approved the types and
maximum amounts of levies of the Klaipėda State Seaport (Item 1.
1) and the principles of application of levies of the Klaipėda
State Seaport (Item 1.2), whereas Item 2 of the same resolution
recognised Government resolution No. 226 of 13 February 2002
(Item 2.1) and Government resolution No. 651 of 27 May 2003 (Item
2.2) as no longer valid. It needs to be mentioned that Government
resolution No. 245 of 5 March 2008 inter alia approved a new type
of levyport waters levy, changed (i.e. reduced) and further
differentiated all maximum amounts of all levies, and changed the
principles of application of port levies.
Thus, the provisions of Government resolution No. 226 of 13
February 2002 (wordings of 13 February 2002 and 27 May 2003) are
not valid at present.
Under Paragraph 4 of Article 69 of the Law on the
Constitutional Court, the annulment of the disputed legal act
shall be grounds to adopt a decision to dismiss the instituted
legal proceedings. However, as it was held in the jurisprudence
of the Constitutional Court more than once, when a court
investigating a case applies to the Constitutional Court after it
has doubts concerning the compliance of a law or other legal act
applicable in the case with the Constitution (other legal act of
higher power), the Constitutional Court has a duty to investigate
the request of the court regardless of the fact whether the
disputed law or other legal act is valid or not.
5. It has been mentioned that the petitioner grounds the
non-compliance of Items 1 and 2 of Government resolution No. 226
of 13 February 2002 and Item 1 of the same Government resolution
(wording of 27 May 2003) with the Constitution upon the fact that
the types and essential elements (the amounts (maximum amounts))
of this levy and the principles of its application should have
been established not by the disputed Government resolution, but
by means of a law adopted by the Seimas.
Thus, the Supreme Administrative Court of Lithuania, the
petitioner, does not dispute the types and amounts of port levies
as well as the principles of their application approved by Items
1 and 2 of Government resolution No. 226 of 13 February 2002 and
the types and maximum amounts of port levies approved by Item 1
of this Government resolution (wording of 27 May 2003); it is
clear from the arguments of the petitioner that it had doubts
whether the said items of the Government resolution, according to
the procedure of their adoption, were not in conflict with Item
15 of Article 67, Paragraph 3 of Article 127 of the Constitution,
and with the constitutional principle of a state under the rule
of law.
6. It has also been mentioned that Government resolution No.
226 of 13 February 2002 was adopted while following Article 34 of
the Law on the Klaipėda State Seaport. It needs to be noted that,
at the time of adoption of Government resolution No. 226 of 13
February 2002, Article 34 of the Law on the Klaipėda State
Seaport set forth in the wording of 29 August 2000 was in force,
whereas at the time of adoption of Government resolution No. 651
of 27 May 2003, the same article set forth in the wording of 5
December 2002 was in force. Paragraph 2 of Article 34 of the Law
on the Klaipėda State Seaport prescribed: "the types and amounts
of port levies, the principles of their application shall be
established by the Government" (wording of 29 August 2000); "the
types and maximum amounts of port levies, the principles of their
application <
> shall be established by the Government" (wording
of 5 December 2002).
7. While deciding whether the legislator was allowed by
means of Paragraph 2 of Article 34 of the Law on the Klaipėda
State Seaport to commission the Government to establish the types
and amounts (maximum amounts) of port levies, the principles of
their application, it is necessary to disclose the legal
situation of the Klaipėda State Seaport, the nature of its
activity, and the concept of port levies.
8. It needs to be noted that at the time of validity of the
disputed legal regulation, the basics of regulation of the
relations linked to transport (inter alia water transport)
activity were established in the Law on the Basics of Transport
Activity (wording of 28 February 2002). In the context of the
constitutional justice case at issue the following provisions of
the law are to be mentioned:
- "levy" means the fee set by the owner of an object of
infrastructure for use of the object of transport infrastructure,
which is paid by the customer of the object of transport
infrastructure to the possessor (owner) of the object of
transport infrastructure (Paragraph 1 of Article 2);
- all the customers of the transport infrastructure must pay
the levies for the use of the transport infrastructure to the
possessor (owner) of the object of the transport infrastructure,
whereas the amount of the levies and the procedure of payment
thereof shall be determined by the owner of the object of
transport infrastructure, taking into account the expenses needed
for the operation of these objects (Paragraph 2 of Article 9);
- the funds received for the use of the public transport
infrastructure shall be employed only to ensure the functioning
of this infrastructure and to fund the programmes set forth in
Paragraph 2 of Article 15 of this law (Paragraph 3 of Article 9);
- the funds obtained from the use of the public transport
infrastructure (inter alia seaport levies) the possessor shall
use according to the estimate approved by the owner of the object
of public transport infrastructure or an institution authorised
by him and approved special programmes (Paragraph 2 of Article
15).
9. Thus, under the Law on the Basics of Transport Activity
(wording of 28 February 2002), customers of the transport
infrastructure must pay the levies (inter alia seaport levies)
for the use of the transport infrastructure to the possessor
(owner) of the object of the transport infrastructure; the amount
of the levies and the procedure of payment thereof are determined
by the owner of the object of transport infrastructure; the
received funds are used to exploit the said objects.
10. In addition, the following provisions of the Law on the
Klaipėda State Seaport (wording of 16 May 1996 with subsequent
amendments and/or supplements), which is lex specialis with
respect to the Law on the Basics of Transport Activity, are to be
mentioned:
- "port levy" means the funds collected administratively
from the owners (possessors) of vessels for use of the port
(Section 6 of Article 2 (wording of 26 September 2000); "port
levy" means compulsory fees paid by the owners (possessors) of
vessels for using the port (Paragraph 6 of Article 2 (wording of
5 December 2002);
- the Klaipėda State Seaport shall be property of the
Republic of Lithuania (Paragraph 1 (wordings of 16 May 1996 and 6
December 2005) of Article 3);
- the founder of the port shall be the Government Republic
of Lithuania; upon commissioning by the Government, the functions
of the founder shall be performed by the Ministry of Transport
and Communications (Paragraph 2 (wording of 16 May 1996) of
Article 3);
- "port" is part of the transport system of the Republic of
Lithuania designed for serving vessels and for carrying out other
commercial and economic activity related to shipping (Paragraph 1
(wording of 16 May 1996) of Article 4);
- the Port Authority shall possess the objects of ownership
which are in the port (Paragraph 1 (wording of 16 May 1996) of
Article 10); the land of the port, port waters and the port
infrastructure shall be possessed, disposed of and used by the
Port Authority by trust under procedure and conditions
established in the Regulations of the Port Authority and legal
acts regulating its activity (Article 10 (wording of 6 December
2005));
- the Port Authority shall be a state enterprise (Paragraph
2 (wording of 29 August 2000) of Article 10, Article 10 (wording
of 6 December 2005);
- some of the main functions of the Port Authority (Article
11 (wordings of 5 December 2002 and 5 December 2006) are : to co-
ordinate the security of the port territory implemented by users
of the land, to ensure safe shipping in the port (Item 1); to
ensure the activity of the captain of the port (Item 2); to
supervise and maintain, under procedure established by the
Government, the reserve territories of the port (Item 3); to
efficiently use and possess the state property transferred by
trust (Item 4); to rent the port land (Item 5 (wording of 5
December 2006)); to collect port levies (Item 6); to implement
the port security measures against pollution and to organise
liquidation of consequences of pollution (Item 10); to build, use
and develop the infrastructure of the port (Item 11); to maintain
the projected depth in port waters and near berths and piers
(Item 12); to organise and implement the protection of port
environment (Item 13);
- the port funds are inter alia composed of port levies
(Item 1 of Paragraph 1 of Article 32);
- port levies and rent fee for port land are income not
received from sales and not subject to taxation (Paragraph 2 of
Article 32);
- port funds are used for financing (payment) for port
exploiting, development and other expenses related to port
activities (Article 33 (wordings of 16 May 1996 and 5 December
2002 with subsequent amendments);
- possessors of vessels must pay port levies for using the
port (Paragraph 1 (wording of 29 August 2000) of Article 34);
- the types and amounts (maximum amounts) of port levies,
the principles of application of the levies shall be established
by the Government (Paragraph 2 (wordings of 29 August 2000 and 5
December 2002) of Article 34).
11. Thus, under the Law on the Klaipėda State Seaport
(wording of 16 May 1996 with subsequent amendments and/or
supplements), the purpose of the port is to provide service to
vessels and perform other commercial and economic activities
related to shipping; port levies are fees (which constitute port
funds) to be paid by owners (possessors) of vessels only when
they use the property of the Republic of Lithuaniathe Klaipėda
State Seaport; the types, amounts (maximum amounts) of the levies
and the principles of their application shall be established by
the Government; the levies are collected by the state enterprise
Port Authority; such funds are used for financing (payment) for
port exploiting, development and other expenses related to port
activities.
12. In order to disclose the legal situation of the Klaipėda
State Seaport, the nature of its activities and the concept of
port levies, it is important to elucidate the legal regulation
linked to the procedure and conditions for use, possession and
disposal of state property, which is inter alia established in
the Civil Code of the Republic of Lithuania, the Republic of
Lithuania Law on Possession, Use and Disposal of State and
Municipal Property, the Law on the Government of the Republic of
Lithuania, and the Law on State and Municipal Enterprises. In the
context of the constitutional justice case at issue it needs to
be mentioned that:
- under Item 5 (wording of 10 October 2000) of Article 22 of
the Law on the Government, the Government shall dispose of the
state property on the grounds of laws, establish a procedure of
the possession and use thereof;
- under Article 2.36 "Participation of the State and
Municipalities in Civil Relations" of the Civil Code (wording of
18 July 2000), the state and its institutions shall be subjects
of civil relations subject to the same grounds as other
participants thereof (Paragraph 1), the state shall gain civil
rights, assume civil duties and implement them through respective
public administration institutions (Paragraph 2);
- under Paragraph 1 of Article 7 of the Law on Possession,
Use and Disposal of State and Municipal Property (wording of 23
May 2002) the functions of the owner of state property shall be
implemented by the Seimas and the Government under procedure
established by laws and other legal acts; under Paragraph 2 of
the same article, inter alia state enterprises shall possess, use
and dispose of state property by trust (Item 2);
- under Item 6 (wording of 1997 December 9) of Article 4 of
the Law on State and Municipal Enterprises (wording of 21
December 1994) and Paragraph 5 of Article 3 of the same law
(wording of 16 December 2003), state enterprises were allowed and
are allowed to establish the prices and tariffs for the services
they provide, save the cases when the said prices and tariffs are
established inter alia by the Government under procedure
established by laws.
13. Summing up the aforesaid provisions of the Law on the
Basics of Transport Activity, the Law on the Klaipėda State
Seaport, the Civil Code, the Law on Possession, Use and Disposal
of State and Municipal Property, the Law on the Government, and
the Law on State and Municipal Enterprises, while construing them
together with the aforementioned provisions entrenched in
Government resolution No. 226 of 13 February 2002 (wordings of 13
February 2002 and 27 May 2003), in the context of the
constitutional justice case at issue the following conclusions
are to be made:
- the Klaipėda State Seaport is state property the functions
of the owner of which is implemented by the Government, whereas
the state enterprise Port Authority possesses, uses and disposes
of it by trust; the Government, while implementing the functions
of the owner of the Port, establishes the prices and tariffs
(inter alia the types of port levies, their amounts (maximum
amounts)) for services and the principles of application of the
prices and tariffs;
- the Port Authority is an independent economic entity, i.e.
a state enterprise, which carries out economic-commercial
activity, inter alia renders the following services related with
exploiting the port: ensures safe shipping in the port and the
activity of the captain of the port; organises the port security
measures against pollution and liquidation of consequences of
pollution; maintains the projected depth in port waters and near
berths and piers; organises and implements the protection of port
environment; etc.;
- it is only the owners (possessors) of vessels who use the
port that pay levies to the Port Authority; port levies are fees
paid by the owners (possessors) of vessels for services rendered
by the Port; recompense and two-sidedness are characteristic of
these relations; the Port Authority acts as a participant in
civil legal relations, i.e. as the other participants of these
relations, it acquires civil rights and assumes civil duties on
equal grounds; the purpose of the port is to provide service to
vessels and perform other commercial and economic activities
related to shipping;
- port levies are funds of the Klaipėda State Seaport used
for financing (payment) for port exploiting, development and
other expenses related to port activities.
14. It needs to be noted that the concept of tax and the
list of taxes are entrenched in the Law on Tax Administration,
which at the time of the validity of the disputed legal
regulation was set forth in the wordings of 28 June 1995 and 13
April 2004. In the context of the constitutional justice case at
issue the following provisions of this law are to be mentioned:
- "tax" denotes monetary obligation owed by the taxpayer to
the state, established within the tax law in order that funds may
be obtained to fulfil state (municipal) functions; this
obligation is fulfilled under procedure established by laws (the
first section of Article 2 (wording of 28 June 1995 with
subsequent amendments and/or supplements, which was valid until 1
May 2004, when the Law on Tax Administration, which was adopted
by the Seimas on 13 April 2004, came into force); "levy"
indicates a monetary duty established by law to a person for
certain services provided for him by state institutions; levies
shall constitute an additional source of income for fulfilment of
state (municipal) functions (the second section of Article 2
(wording of 28 June 1995 with subsequent amendments and/or
supplements, which was valid until 1 May 2004, when the Law on
Tax Administration, which was adopted by the Seimas on 13 April
2004, came into force);
- "tax" shall mean a monetary liability in respect of the
state imposed on the taxpayer by the tax law; the concept of tax
shall also include the payments and levies specified in Article
13 (Paragraph 23 of Article 2 (wording of 13 April 2004));
- the state levy is administered under this law (Article 5
(wording of 20 December 2000 with subsequent amendments and/or
supplements, which was valid until 2004 May 1, when the Law on
Tax Administration, which was adopted by the Seimas on 13 April
2004, came into force) and Item 15 (wording of 13 April 2004) of
Paragraph 1 of Article 13);
- under this law, the state levy is administered inasmuch as
it is established in the Republic of Lithuania Law on Levies
(Paragraph 5 (wording of 20 December 2000 with subsequent
amendments and/or supplements, which was valid until 2004 May 1,
when the Law on Tax Administration, which was adopted by the
Seimas on 13 April 2004, came into force) of Article 5 and
Paragraph 3 (wording of 13 April 2004) of Article 14).
15. Thus, under the Law on Tax Administration (wordings of
28 June 1995 and 13 April 2004 with subsequent amendments and/or
supplements), the tax was and is a monetary obligation owed by
the taxpayer to the state, established within a corresponding tax
law.
16. In the context of the constitutional justice case at
issue one is also to mention the following provisions of the Law
on Levies (wording of 13 June 2000), which is lex specialis in
respect of the Law on Tax Administration:
- "state levy" is mandatory payment for services provided by
state and municipal institutions, establishments, offices or
organisations (hereinafter "institutions"), with the exception of
courts (Paragraph 1 of Article 2); "services provided by
institutions" are issuance and renewal of documents having legal
force and their duplicates, and other services (Paragraph 2 of
Article 2);
- state levies shall be credited to the budget from which
the institution providing a service is maintained, whereas the
state levy for the services provided by the Bank of Lithuania
shall be credited to the state budget (Paragraph 1 of Article
16).
17. Thus, under the Law on Levies (wording of 13 June 2000),
the state levy is mandatory payment for services provided by
state and municipal institutions, establishments, offices or
organisations, with the exception of courts; state levies shall
be credited to the budget from which the institution providing a
service is maintained.
18. Summing up the aforesaid provisions of the Law on Tax
Administration and the Law on Levies, in the context of the
constitutional justice case at issue it needs to be noted that
under the Law on Tax Administration and under the Law on Levies,
the port levy has never been a tax or a state levy.
19. It has been mentioned that in the constitutional justice
case at issue it is investigated whether Items 1 and 2 of
Government resolution No. 226 of 13 February 2002, Item 1 of this
Government resolution (wording of 27 May 2003), according to the
procedure of their adoption, were not in conflict with inter alia
Item 15 of Article 67 and Paragraph 3 of Article 127 of the
Constitution.
20. While investigating, subsequent to the petition of the
petitioner, whether the disputed legal regulation to the
specified extent was not in conflict with Item 15 "The Seimas <
>
15) shall establish State taxes and other compulsory payments" of
Article 67 of the Constitution, and Paragraph 3 "Taxes, other
payments to the budgets, and levies shall be established by the
laws of the Republic of Lithuania" of Article 127 thereof, one is
to elucidate whether the port levies are to be regarded as state
taxes and other compulsory payments in the sense of Item 15 of
Article 67 of the Constitution and as levies in the sense of
Paragraph 3 of Article 127 of the Constitution.
21. In the context of the constitutional justice case at
issue one is to mention the following provisions of the official
constitutional doctrine, which have been formulated by the
Constitutional Court when it construed the features
characteristic of taxes and other compulsory payments (save
levies):
- taxes and other obligatory payments are obligatory and
gratuitous payments, established by the law, of respective amount
by legal and natural persons at the set time to the state
(municipal) budget (Constitutional Court ruling of 24 January
2006); taxes are paid providing there exists a permanent object
subject to taxation (Constitutional Court ruling of 15 March
1996);
- state taxes and other obligatory payments are a monetary
obligation of legal subjects to the state; according to the
Constitution, only the Seimas may establish state taxes and other
obligatory payments and only by a law, this is an important
guarantee of the protection of a person's rights (Constitutional
Court ruling of 3 June 2002);
- by means of taxes economic and social processes are
regulated, useful economic efforts are induced, and priorities of
economic development are supported (Constitutional Court rulings
of 9 October 1998 and 17 November 2003); the characteristic of
taxes is that they are paid regularly during established time
limits, and their nature is not that of direct recompense, i.e.,
after they had been paid to the state which accepted the said
tax, the aforementioned institution has no obligation to perform
any actions or render any particular service for the tax payer
(Constitutional Court ruling of 15 March 1996); tax relations are
a matter of regulation by public law; tax relations are legal
relations of commanding character between the taxpayer and
institutions of the executive power of the state (Constitutional
Court ruling of 17 November 2003), therefore the method of
administrative legal regulation is applied for their realisation
first of all (Constitutional Court ruling of 10 July 1997).
22. While interpreting the provision "The State budget
revenue shall be raised from taxes, compulsory payments, levies,
income from State property and other income" of Paragraph 2 of
Article 127 of the Constitution, in its ruling of 15 March 1996,
the Constitutional Court inter alia held that "<...> according to
the Constitution, five legal forms of the state budget revenues
may be singled out: regular taxes, other compulsory payments,
levies, receipts from the state property, and other income. They
are specified in particular laws." Thus, in the sense of
Paragraphs 2 and 3 of Article 127 of the Constitution, the levy
is one of the legal forms of revenues of the state budget.
23. It needs to be mentioned that in the ruling of 15 March
1996, which was adopted in the constitutional justice case
regarding the compliance of items of the stamp tax rates
confirmed by Government Resolution No. "On the confirming the
rates of stamp tax, as well as the procedure of payments and
returning of stamp tax" of 11 November 1994 with the Constitution
and laws, the Constitutional Court inter alia noted that the
stamp tax, as well as the levy, has a two-way character, as the
subjects of the legal relations which occur after the stamp tax
has been paid have the corresponding rights and obligations;
there are two essentials of paying compulsory levies: the object
subject to taxation and the actions performed, or services
rendered by the competent institutions of the state to legal, as
well as natural persons; most levies, as well as the stamp tax,
are voluntary payments, i.e., a person, who desires to get some
service or a particular action from a state office, consents to
pay a stamp tax or any other levy before the actions are
performed, or documents bearing legal power are granted, and on
such basis he becomes entitled to demand that the requested
actions be performed, or that the documents he wants be granted.
24. In the context of the constitutional justice case at
issue it needs to be noted that both taxes and state levies are
established by law and are paid to the state (municipal) budget;
however, obligation, non-recompense and one-sidedness are
characteristic of state taxes in the sense of Item 15 of Article
67 of the Constitution; tax relations are legal relations of
commanding character between the taxpayer and institutions of the
executive power of the state. Meanwhile, the levy in the sense of
Paragraphs 2 and 3 of Article 127 of the Constitution is a
compulsory payment to the state budget for actions performed or
services rendered by the competent institutions of the state to
legal, as well as natural persons.
25. It has been mentioned that: the Klaipėda State Seaport
is state property the functions of the owner of which is
implemented by the Government, whereas the state enterprise Port
Authority possesses, uses and disposes of it by trust; the
Government, while implementing the functions of the owner of the
port, establishes the prices and tariffs (inter alia the types of
port levies, their amounts (maximum amounts)) for services
rendered by the port and the principles of application of the
prices and tariffs; the Port Authority is an independent economic
entity, i.e. a state enterprise, which carries out economic-
commercial activity, inter alia renders the services related with
exploiting the port; it is only the owners (possessors) of
vessels who use the port that pay levies to the Port Authority;
port levies are fees paid by the owners (possessors) of vessels
for services rendered by the port; recompense and two-sidedness
are characteristic of these relations; the Port Authority acts as
a participant in civil legal relations, i.e. as the other
participants of these relations, it acquires civil rights and
assumes civil duties on equal grounds; the purpose of the port is
to provide service to vessels and perform other commercial and
economic activities related to shipping; port levies are not
revenues of the state budget, but funds of the Klaipėda State
Seaport used for financing (payment) for port exploiting,
development and other expenses related to port activities.
It has also been mentioned that, under the Law on Levies
(wording of 13 June 2000), the state levy is mandatory payment
for services provided by state and municipal institutions,
establishments, offices or organisations, with the exception of
courts; state levies shall be credited to the budget from which
the institution providing a service is maintained. It needs to be
noted that, as mentioned, under the Law on Tax Administration and
under the Law on Levies, the port levy has never been a tax or a
state levy.
26. It needs to be held that levies of the Klaipėda State
Seaport is a compensation paid by the owners (possessors) of
vessels to an independent economic entitythe state enterprise
Port Authority, which carries out economic-commercial activity,
for services provided by the port and those levies are not paid
to the state (municipal) budget, therefore they are not to be
regarded as state taxes or other compulsory payments in the sense
of Item 15 of Article 67 of the Constitution and Paragraphs 2 and
3 of Article 127 of the Constitution. In this context it needs to
be noted that the content and purpose of the state levies
established in Paragraph 3 of Article 127 of the Constitution and
those established in the Law on the Klaipėda State Seaport, in
sub-statutory legal acts adopted in the course of implementation
of this law, inter alia in the disputed Government resolution No.
226 of 13 February 2002 (wordings of 13 February 2002 and 27 May
2003), are different.
27. Having held this, there are no legal grounds to maintain
that the types and essential elements, inter alia maximum
amounts, of levies of the Klaipėda State Seaport had to or must
be established while following the imperative entrenched in Item
15 of Article 67 and Paragraph 3 of Article 127 of the
Constitution that state taxes, other compulsory payments and
levies must be established only by a law adopted by the Seimas
and that they could not be approved by a Government resolution.
Thus, the legislator was allowed to commission the Government, by
Paragraph 2 (wordings of 29 August 2000 and 5 December 2002) of
Article 34 of the Law on the Klaipėda State Seaport, to establish
the types, amounts (maximum amounts) of port levies and the
principles of their application.
28. Taking account of the aforesaid arguments, one is to
draw a conclusion that Items 1 and 2 of Government Resolution No.
226 "On Approving the Types, Amounts and Principles of
Application of Levies of the Klaipėda State Seaport" of 13
February 2002 and Item 1 of Government Resolution No. 226 "On
Approving the Types, Amounts and Principles of Application of
Levies of the Klaipėda State Seaport" of 13 February 2002
(wording of 27 May 2003), according to the procedure of their
adoption, were not in conflict with Item 15 of Article 67 and
Paragraph 3 of Article 127 of the Constitution.
29. It has been mentioned that in the constitutional justice
case at issue it is investigated whether Items 1 and 2 of
Government resolution No. 226 of 13 February 2002, Item 1 of this
Government resolution (wording of 27 May 2003), according to the
procedure of their adoption, were not in conflict with inter alia
the constitutional principle of a state under the rule of law.
30. The Constitutional Court has held more than once that
the duty of the Government to adopt sub-statutory acts which are
necessary so as to implement laws stems directly from the
Constitution, while in case there is a commissioning by the
Seimas to do so, it also stems from the laws and Seimas
resolutions concerning implementation of laws. In addition, the
Constitutional Court has held that the principle of a state under
the rule of law entrenched in the Constitution implies the
hierarchy of legal acts as well, inter alia the fact that sub-
statutory legal acts may not be in conflict with laws,
constitutional laws and the Constitution, that sub-statutory
legal acts must be adopted on the basis of laws, that a sub-
statutory legal act is an act of application of norms of the law,
irrespective of whether the act is of one-time (ad hoc)
application, or permanent validity (Constitutional Court rulings
of 31 May 2006, 13 August 2007, 29 April 2009, 8 October 2009,
and decision of 18 December 2009).
The Constitutional Court, while construing the
constitutional principle of a state under the rule of law, has
held that in the cases where the Constitution requires the
regulation of certain relations that are indicated therein namely
by a law, and when under the Constitution the regulation of such
relations is not assigned to the exceptional competence of
institutions executing the state power, inter alia the
Government, the legislator may establish also in the law that
certain relations are regulated by the Government or an
institution authorised by it (Constitutional Court ruling of 5
May 2007).
31. It has been held in this ruling that levies of the
Klaipėda State Seaport are not to be regarded as state taxes or
other compulsory payments in the sense of Item 15 of Article 67
of the Constitution and levies in the sense of Paragraphs 2 and 3
of Article 127 of the Constitution. It has also been held that
there are no legal grounds to maintain that the types and
essential elements, inter alia maximum amounts of levies of the
Klaipėda State Seaport, had to or must be established while
following the imperative entrenched in Item 15 of Article 67 and
Paragraph 3 of Article 127 of the Constitution that state taxes,
other compulsory payments and levies must be established only by
a law adopted by the Seimas and that they could not be approved
by a Government resolution.
It needs to be noted that, as mentioned, Paragraph 2
(wordings of 29 August 2000 and 5 December 2002) of Article 34 of
the Law on the Klaipėda State Seaport provides expressis verbis
that the types and amounts (maximum amounts) of port levies, the
principles of their application shall be established by the
Government, thus disputed Government resolution No. 226 of 13
February 2002 (wordings of 13 February 2002 and 27 May 2003) was
adopted while following Article 34 of the Law on the Klaipėda
State Seaport.
32. It has also been mentioned that the Annex "The Types and
Amounts of Levies of the Klaipėda State Seaport" (wording of 13
February 2002) and "The Types and Maximum Amounts of Levies of
the Klaipėda State Seaport" (wording of 27 May 2003) to disputed
Government resolution No. 226 of 13 February 2002 consolidated
the vessel, navigation, berth, tonnage, sanitary and passenger
port levies, and the amounts (maximum amounts) of the port
levies; the Annex "The Principles of Application of Levies of the
Klaipėda State Seaport" of this resolution inter alia established
the rules (formulas) for computing the vessel, navigation, berth,
tonnage and sanitary levies, which were applied correspondingly
by taking account of a vessel's tonnage, capacity module etc.
It was also mentioned that in the cases where the
Constitution requires the regulation of certain relations that
are indicated therein namely by a law, the legislator may
establish also in the law that certain relations are regulated by
the Government or an institution authorised by it. Thus, the
constitutional principle of a state under the rule of law does
not give rise to the imperative that the types and amounts
(maximum amounts) of levies or payments of other character of the
Klaipėda State Seaport and the principles of their application
must be established namely by means of a law.
Thus, there are no legal grounds to maintain that the
Government, when it approved the types and amounts (maximum
amounts) of levies of the Klaipėda State Seaport and the
principles of their application, exceeded its powers and that due
to this the disputed legal regulation, according to the procedure
of its adoption, was in conflict with the constitutional
principle of a state under the rule of law.
33. Taking account of the arguments set forth, one is to
draw a conclusion that Items 1 and 2 of Government Resolution No.
226 "On Approving the Types, Amounts and Principles of
Application of Levies of the Klaipėda State Seaport" of 13
February 2002 and Item 1 of Government Resolution No. 226 "On
Approving the Types, Amounts and Principles of Application of
Levies of the Klaipėda State Seaport" (wording of 27 May 2003),
according to the procedure of their adoption, were not in
conflict with the constitutional principle of a state under the
rule of law.
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 Items 1 and 2 of Resolution of the
Government of the Republic of Lithuania No. 226 "On Approving the
Types, Amounts and Principles of Application of Levies of the
Klaipėda State Seaport" of 13 February 2002 (Official Gazette
Valstybės žinios, 2002, No. 17-673) and Item 1 of Resolution of
the Government of the Republic of Lithuania No. 226 "On Approving
the Types, Amounts and Principles of Application of Levies of the
Klaipėda State Seaport" of 13 February 2002 (wording of 27 May
2003; Official Gazette Valstybės žinios, 2003, Nr. 52-2327),
according to the procedure of their adoption, were not in
conflict with the Constitution of the Republic of Lithuania.
This ruling of the Constitutional Court is final and not
subject to appeal.
The ruling is promulgated in the name of the Republic of
Lithuania.
Justices of the Constitutional Court: Armanas Abramavičius
Toma Birmontienė
Pranas Kuconis
Kęstutis Lapinskas
Zenonas Namavičius
Ramutė Ruškytė
Egidijus Šileikis
Algirdas Taminskas
Romualdas Kęstutis
Urbaitis