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On refusing to consider a petition

 THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

 DECISION

ON THE PETITION OF THE VILNIUS REGIONAL ADMINISTRATIVE COURT, THE PETITIONER, REQUESTING AN INVESTIGATION INTO WHETHER THE PROVISIONS OF THE RESOLUTION OF THE GOVERNMENT OF THE REPUBLIC OF LITHUANIA (NO. 810) “ON THE APPROVAL OF PROMOTION QUOTAS FOR THE USE OF RENEWABLE ENERGY SOURCES TO GENERATE ELECTRICITY AND ON THE APPROVAL OF AUCTION REGIONS” OF 4 JULY 2012 ARE NOT IN CONFLICT WITH THE REPUBLIC OF LITHUANIA’S LAW ON ENERGY FROM RENEWABLE SOURCES

 29 August 2014, No. KT39-S28/2014
Vilnius

The Constitutional Court of the Republic of Lithuania, composed of the Justices of the Constitutional Court: Elvyra Baltutytė, Vytautas Greičius, Danutė Jočienė, Pranas Kuconis, Gediminas Mesonis, Vytas Milius, Egidijus Šileikis, Algirdas Taminskas, and Dainius Žalimas

The court reporter—Daiva Pitrėnaitė

The Constitutional Court of the Republic of Lithuania, in its procedural sitting, considered the petition (No. 1B-42/2014) of the Vilnius Regional Administrative Court, the petitioner.

The Constitutional Court

has established:

The Constitutional Court received the petition of the Vilnius Regional Administrative Court, the petitioner, requesting “an investigation into whether Item 1.1 of the 4 July 2012 resolution (No. 810) of the Government of the Republic of Lithuania and the provisions of Item 1 of the List of Auction Regions for the Distribution of Promotion Quotas for the Use of Renewable Energy Sources to Generate Electricity and the Promotion Quotas Assigned to the said Regions, as approved by Item 2 of the said resolution, to the effect that the promotion quota for the total installed capacity of 500 MW for wind power plants in relation to the use of renewable energy sources to generate electricity excludes the total installed capacity of small power plants with an installed capacity not exceeding 30 kW” are not in conflict with Item 1 (wording of the law (No. XII-169) of 17 January 2013 which has been in force since 1 February 2013) of Paragraph 3 of Article 13 of the Law on Energy from Renewable Sources”.

The Constitutional Court

holds that:

  1. The Vilnius Regional Administrative Court, the petitioner, requests an investigation into whether Item 1.1 of the Resolution of the Government of the Republic of Lithuania (No. 810) “On the Approval of Promotion Quotas for the Use of Renewable Energy Sources to Generate Electricity and on the Approval of Auction Regions” of 4 July 2012 (hereinafter also referred to as government resolution No. 810 of 4 July 2012) and “the provisions that the promotion quota for the total installed capacity of 500 MW for wind power plants in relation to the use of renewable energy sources to generate electricity excludes the total installed capacity of small power plants with an installed capacity not exceeding 30 kW” of Item 1 of the List of Auction Regions for the Distribution of Promotion Quotas for the Use of Renewable Energy Sources to Generate Electricity and the Promotion Quotas Assigned to the said Regions (hereinafter also referred to as the List), as approved by the said resolution, are not in conflict with Item 1 (wording of 17 January 2013) of Paragraph 3 of Article 13 of the Republic of Lithuania’s Law on Energy from Renewable Sources.
  2. Item 1.1 of government resolution No. 810 of 4 July 2012 prescribes: “To approve the following promotion quotas for the use of renewable energy sources to generate electricity (hereinafter referred to as the promotion quotas) which are established according to the total installed capacity of the power plants that are connected to electricity grids: 1.1. for wind energy—the total installed capacity of 500 MW for wind power plants excluding small power plants with an installed capacity not exceeding 30 kW;”.

Item 1 of the List, as approved by government resolution No. 810 of 4 July 2012, prescribes: “The auction region for promotion quotas for wind power plants is the whole territory of the Republic of Lithuania. The promotion quota for the auction region is 260 MW (including 210 MW for power plants to be connected to the transmission grid and 50 MW for power plants to be connected to the distribution grid), excluding small power plants with an installed capacity not exceeding 30 kW.”

  1. The petitioner has doubts about the compliance of the provisions of Item 1.1 of government resolution No. 810 of 4 July 2012 and the provisions of Item 1 of the List with Item 1 (wording of 17 January 2013) of Paragraph 3 of Article 13 of the Law on Energy from Renewable Sources, which prescribes: “The tasks of this Law in the electricity sector until 2020 shall be: 1) to increase the total installed capacity of the wind power plants that are connected to electricity grids up to 500 MW. Upon reaching the installed capacity of 500 MW for wind power plants, the Government shall draw up and approve the description of the procedure for further development of wind power plants and the infrastructure of transmission and distribution grids, smart grids and electricity storage, taking in account the commitments of the Republic of Lithuania regarding the reduction of environmental pollution and requirements for ensuring secure and reliable energy supply and the protection of the rights and legitimate interests of consumers;”.
  2. The petitioner requests an investigation into whether, inter alia, the provision that “the promotion quota for the total installed capacity of 500 MW for wind power plants in relation to the use of renewable energy sources to generate electricity excludes the total installed capacity of small power plants with an installed capacity not exceeding 30 kW” of Item 1 of the List is not in conflict with Item 1 (wording of 17 January 2013) of Paragraph 3 of Article 13 of the Law on Energy from Renewable Sources.

The petitioner maintains that Item 1 of the List and Item 1 (wording of 17 January 2013) of Paragraph 3 of Article 13 of the Law on Energy from Renewable Sources establish different promotion quotas for wind power in relation to the use of renewable energy sources to generate electricity: “[T]he law establishes the quota for the total installed capacity of 500 MW for wind power plants and the government resolution establishes the quota for the total installed capacity of 500 MW for wind power plants as well, however, it is calculated by including small power plants with an installed capacity not exceeding 30 kW”.

4.1. It has been mentioned that Item 1 of the List prescribes: “The auction region for promotion quotas for wind power plants is the whole territory of the Republic of Lithuania. The promotion quota for the auction region is 260 MW (including 210 MW for power plants to be connected to the transmission grid and 50 MW for power plants to be connected to the distribution grid), excluding small power plants with an installed capacity not exceeding 30 kW.”

Thus, Item 1, which is impugned by the petitioner, of the List entrenches the promotion quota, the size of which is 260 MW, for auction regions and not the promotion quota, the size of which, as mentioned before, is 500 MW, for the total installed capacity of wind power plants, i.e. Item 1 of the List does not contain the provision the investigation of the compliance of which with the law is requested by the petitioner.

Consequently, the impugned legal regulation which, according to the petitioner, is established in Item 1 of the List is actually not established therein, therefore, a matter for investigation is absent in the petition of the petitioner.

4.2. The fact that a matter for investigation is absent in the petition of the petitioner means that the petition does not fall under the jurisdiction of the Constitutional Court (inter alia, the Constitutional Court’s decisions of 13 May 2003, 8 August 2006, 5 November 2008, 2 July 2010, and 2 May 2013).

Under Item 2 of Paragraph 1 of Article 69 of the Law on the Constitutional Court, the Constitutional Court, by its decision, refuses to consider petitions requesting an investigation into the compliance of a legal act with the Constitution if the consideration of the petition does not fall under the jurisdiction of the Constitutional Court.

4.3. In the light of the foregoing arguments, the conclusion should be drawn that there are grounds to refuse to consider the petition of the Vilnius Regional Administrative Court, the petitioner, requesting an investigation into whether Item 1 of the List, as approved by government resolution No. 810 of 4 July 2012, is not in conflict with Item 1 (wording of 17 January 2013) of Paragraph 3 of Article 13 of the Law on Energy from Renewable Sources.

  1. The petitioner also requests an investigation into whether the provision that “the promotion quota for the total installed capacity of 500 MW for wind power plants in relation to the use of renewable energy sources to generate electricity excludes the total installed capacity of small power plants with an installed capacity not exceeding 30 kW” of Item 1.1 of government resolution No. 810 of 4 July 2012 is not in conflict with Item 1 (wording of 17 January 2013) of Paragraph 3 of Article 13 of the Law on Energy from Renewable Sources.

5.1. It has been mentioned that Item 1.1 of government resolution No. 810 of 4 July 2012 prescribes: “To approve the following promotion quotas for the use of renewable energy sources to generate electricity (hereinafter referred to as the promotion quotas) which are established according to the total installed capacity of the power plants that are connected to electricity grids: 1.1. for wind energy—the total installed capacity of 500 MW for wind power plants excluding small power plants with an installed capacity not exceeding 30 kW;”.

The petitioner impugns Item 1.1 of government resolution No. 810 of 4 July 2012 only insofar as this item establishes that the promotion quota for the total installed capacity of 500 MW for wind power plants excludes the total installed capacity of small power plants with an installed capacity not exceeding 30 kW.

5.2. The petition of the Vilnius Regional Administrative Court and the material of the administrative case being considered by it make it clear that, in the said administrative case, the Vilnius Regional Administrative Court considers the issue of the lawfulness of the actions of the National Commission for Energy Control and Prices (hereinafter referred to as the Commission) in suspending the auction (organised by it) for the distribution of promotion quotas for the wind power plants the projected installed capacity of which is between 10 kW and 350 kW and which will be connected to the distribution grid. The said auction was suspended upon reaching the volume of the total installed capacity of 500 MW for wind power plants which is established in Item 1 of Paragraph 3 of Article 13 of the Law on Energy from Renewable Sources.

The aforesaid administrative case also makes it clear that therein one does not impugn the fact that the calculation of the volume of the total installed capacity of 500 MW for wind power plants, upon reaching which the auction was suspended, included the total installed capacity of small power plants with an installed capacity not exceeding 30 kW, but one impugns the fact that the Commission, the defendant, did not have any powers at all to suspend the legally launched auction for the distribution of promotion quotas even upon reaching the established volume of the total installed capacity of 500 MW for wind power plants.

The following significant factual circumstances related to the dispute which arose in the aforesaid administrative case should be mentioned:

– on 6 May 2013, the Commission launched the auction for the distribution of promotion quotas for the wind power plants the projected installed capacity of which is between 10kW and 350 kW and which will be connected to the distribution grid;

– on 21 June 2013, three closed-type joint-stock companies—the claimants in the administrative case—submitted documents concerning their participation in the aforesaid auction to the Commission;

– on 27 August 2013, in view of the Certificate of the Law Division of the Commission (No. O5-287) “On the Cancellation of the Auctions for the Distribution of Promotion Quotas for Wind Power Plants” of 23 August 2013, the Commission adopted resolution No. O3-332, by means of which it resolved to suspend the auction for the distribution of promotion quotas for the wind power plants the projected installed capacity of which is between 10 kW and 350 kW and which will be connected to the distribution grid; the said Commission’s resolution indicates that, upon reaching, under Paragraph 5 of Article 13 of the Law on Energy from Renewable Sources, the volumes of the installed capacities specified in Paragraph 3 of Article 13 of the same law, the distribution of promotion quotas, in accordance with the methods provided for in the aforesaid law and its implementing legal acts, is suspended until the specified volume of the total installed capacity is increased or free promotion quotas become available without building any power plants within the period indicated in the authorisations to develop the capacities of generating electricity from renewable energy sources;

– the aforesaid certificate of the Law Division of the Commission indicates that, upon summing up the issued authorisations to generate electricity, the authorisations to develop the capabilities of generating electricity from renewable energy sources and the promotion quotas gained in the auction, the amount of the total installed capacity exceeds the promotion quota for the total installed capacity of 500 MW for wind power plants which is established in Item 1 of Paragraph 3 of Article 13 of the Law on Energy from Renewable Sources;

– in its written response of 13 September 2013 to the inquiries of the participants in the aforesaid auction—the claimants—regarding the suspension of the auction, the Commission indicated that, until 1 February 2013 (before the entry into force of amendments to the Law on Energy from Renewable Sources), the promotion quota for the installed capacity of 500 MW for wind power plants had excluded wind power plants with an installed capacity not exceeding 30 kW whilst after 1 February 2013 the said quota involved all power plants receiving promotion, irrespective of their capacity. This letter also indicates that, after receiving the updated information from the Ministry of Energy that the total installed capacity for wind power plants which is specified in Paragraph 3 of Article 13 of the Law on Energy from Renewable Sources was reached, the Commission suspended, by means of resolution No. O3-332 of 27 August 2013, the procedures of the auction for the distribution of promotion quotas for the wind power plants the projected capacity of which is between 10 kW and 350 kW and which will be connected to the distribution grid;

– by letter of 20 May 2014, the Ministry of Energy submitted information to the Vilnius Regional Administrative Court concerning producers and successful bidders of promotion quotas to whom promotion for the use of renewable energy sources to generate electricity is applied. This information makes it clear that, on 22 August 2013, the total installed capacity of 507.24750 MW for wind power plants, which also included the installed capacity of small power plants with an installed capacity not exceeding 30 kW, was reached.

5.3. Thus, the administrative case being considered by the Vilnius Regional Administrative Court makes it clear that, as from 1 February 2013, when amendments to Item 1 of Paragraph 3 of Article 13 of the Law on Energy from Renewable Sources came into force, the calculation of the volume of the total installed capacity of wind power plants, upon reaching which the auction was suspended, includes, inter alia, the total installed capacity of small power plants with an installed capacity not exceeding 30 kW, i.e. the auction, in respect of the suspension of which the dispute arose in the administrative case, was suspended upon reaching the volume of the total installed capacity of 500 MW which was established not under Item 1.1, which is impugned by the petitioner, of government resolution No. 810 of 4 July 2012, but under the amended Item 1 of Paragraph 3 of Article 13 of the Law on Energy from Renewable Sources.

In this context, it should be noted that Item 1 (wording of 17 January 2013) of Paragraph 3 of Article 13 of the Law on Energy from Renewable Sources, i.e. the provision under which the calculation of the volume of the total installed capacity—500 MW—for wind power plants includes, inter alia, the total installed capacity of small wind power plants with an installed capacity not exceeding 30 kW, rather than the impugned Item 1.1 of government resolution No. 810 of 4 July 2012 is indicated as the legal basis for adopting the Commission’s resolution of 27 August 2013, by means of which the aforesaid auction was suspended.

It has been mentioned that the administrative case being considered by the Vilnius Regional Administrative Court makes it clear that therein one does not impugn the fact that the calculation of the volume of the total installed capacity of 500 MW for wind power plants, upon reaching which the auction was suspended, included the total installed capacity of small power plants with an installed capacity not exceeding 30 kW, but impugns the fact that the Commission, the defendant, did not have any powers at all to suspend the legally launched auction for the distribution of promotion quotas even upon reaching the established volume of the total installed capacity of 500 MW for wind power plants. It should be noted that the material of the aforesaid administrative case also makes it clear that the said case does not include any dispute regarding the volume of the total installed capacity of 500 MW for wind power plants which is established in Item 1 of Paragraph 3 of Article 13 of the Law on Energy from Renewable Sources and in Item 1.1 of government resolution No. 810 of 4 July 2012. It should also be noted that the petition of the petitioner does not indicate why the impugned Item 1.1 of government resolution No. 810 of 4 July 2012 is significant, in the aspect specified by the petitioner, to the case being considered by the petitioner.

It has been mentioned that the petitioner impugns Item 1.1 of government resolution No. 810 of 4 July 2012 only insofar as this item establishes that the promotion quota for the total installed capacity of 500 MW for wind power plants excludes the total installed capacity of small power plants with an installed capacity not exceeding 30 kW.

Consequently, in the administrative case, the Vilnius Regional Administrative Court, the petitioner, adopted the ruling to suspend the consideration of the case and apply to the Constitutional Court concerning the compliance of Item 1.1 of government resolution No. 810 of 4 July 2012, over which (to the specified extent) there is no dispute in the case being considered by the petitioner, with the Law on Energy from Renewable Sources.

5.4. In its acts, the Constitutional Court has held that, under the Constitution and the Law on the Constitutional Court, a court may apply to the Constitutional Court with a petition requesting an investigation into whether not any law (part thereof) or another legal act (part thereof) is not in conflict with the Constitution, but only such a law (part thereof) or another legal act (part thereof) which should be applied in the case considered by that court (the Constitutional Court’s decisions of 22 May 2007, 27 June 2007, 29 October 2009, and 16 November 2010, and its rulings of 29 November 2010 and 2 September 2011).

Thus, under the Constitution and the Law on the Constitutional Court, no court has locus standi to apply to the Constitutional Court with a petition requesting an investigation into whether a law (part thereof) or another legal act (part thereof) that should not (could not) be applied in the case considered by the court is not in conflict with the Constitution (inter alia, the Constitutional Court’s decisions of 22 May 2007 and 29 October 2009, its rulings of 29 November 2010, 2 September 2011, 18 April 2012, and 5 July 2013, and its decisions of 17 June 2014 and 7 July 2014).

Under the Law on the Constitutional Court, the Constitutional Court, by its decision, refuses to consider petitions requesting an investigation into the compliance of a legal act with the Constitution if the petition was filed by an institution or person who does not have the right to apply to the Constitutional Court (Item 1 of Paragraph 1 of Article 69).

5.5. In the light of the foregoing arguments, the conclusion should be drawn that there are grounds to refuse to consider the petition of the Vilnius Regional Administrative Court, the petitioner, requesting an investigation into whether the provision that “the promotion quota for the total installed capacity of 500 MW for wind power plants in relation to the use of renewable energy sources to generate electricity excludes the total installed capacity of small power plants with an installed capacity not exceeding 30 kW” of Item 1.1 of government resolution No. 810 of 4 July 2012 is not in conflict with Item 1 (wording of 17 January 2013) of Paragraph 3 of Article 13 of the Law on Energy from Renewable Sources.

Conforming to Paragraphs 3 and 4 of Article 22, Article 28, and Items 1 and 2 of Paragraph 1 and Paragraph 2 of Article 69 of the Law on the Constitutional Court of the Republic of Lithuania, the Constitutional Court of the Republic of Lithuania adopts the following

decision:

To refuse to consider the petition (No. 1B-42/2012) of the Vilnius Regional Administrative Court, the petitioner, requesting an investigation into whether Item 1.1 of the Resolution of the Government of the Republic of Lithuania (No. 810) “On the Approval of Promotion Quotas for the Use of Renewable Energy Sources to Generate Electricity and on the Approval of Auction Regions” of 4 July 2012 and “the provisions that the promotion quota for the total installed capacity of 500 MW for wind power plants in relation to the use of renewable energy sources to generate electricity excludes the total installed capacity of small power plants with an installed capacity not exceeding 30 kW” of Item 1 of the List of Auction Regions for the Distribution of Promotion Quotas for the Use of Renewable Energy Sources to Generate Electricity and the Promotion Quotas Assigned to the said Regions, as approved by the said resolution, are not in conflict with Item 1 (wording of 17 January 2013) of Paragraph 3 of Article 13 of the Republic of Lithuania’s Law on Energy from Renewable Sources.

This decision of the Constitutional Court is final and not subject to appeal.

Justices of the Constitutional Court:                                    Elvyra Baltutytė
                                                                                                         Vytautas Greičius
                                                                                                         Danutė Jočienė
                                                                                                         Pranas Kuconis
                                                                                                         Gediminas Mesonis
                                                                                                         Vytas Milius
                                                                                                         Egidijus Šileikis
                                                                                                         Algirdas Taminskas
                                                                                                         Dainius Žalimas