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On refusing to consider a petition

 THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

 DECISION

ON THE PETITION OF A GROUP OF MEMBERS OF THE SEIMAS OF THE REPUBLIC OF LITHUANIA, THE PETITIONER, REQUESTING AN INVESTIGATION INTO THE COMPLIANCE OF CERTAIN PROVISIONS OF THE REPUBLIC OF LITHUANIA’S LAW ON ENVIRONMENTAL PROTECTION WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA

 13 March 2014, No. KT10-S7/2014
Vilnius

The Constitutional Court of the Republic of Lithuania, composed of the Justices of the Constitutional Court: Toma Birmontienė, Pranas Kuconis, Gediminas Mesonis, Ramutė Ruškytė, Egidijus Šileikis, Algirdas Taminskas, Romualdas Kęstutis Urbaitis, and Dainius Žalimas

The court reporter—Sigutė Brusovienė

The Constitutional Court of the Republic of Lithuania, at the procedural sitting of the Constitutional Court, considered a petition (No. 1B-1/2014 ) of a group of members of the Seimas of the Republic of Lithuania, the petitioner, requesting an investigation into whether:

“1. The regulation established in Paragraph 2 of Article 32 of the LEP [the Law on Environmental Protection], under which ‘[t]he users of natural resources and persons carrying out economic activities (hereinafter referred to as economic entities) must take all possible measures so as to avoid any damage to the environment, human health and life, the property and interests of other persons, whilst those who have caused damage must restore the state of the environment, if there is such a possibility, to the original state that existed prior to the occurrence of damage to the environment, as well as compensate for all losses’, in view of the content and the scope of regulation, is not in conflict with the constitutional principle of a state under the rule of law, the constitutional principle of justice, the constitutional principle of the equality of rights of persons consolidated in Article 29 of the Constitution, the principle of the inviolability of property consolidated in Paragraph 1 of Article 23 of the Constitution, and the constitutional imperative of environmental protection consolidated in Paragraph 1 of Article 54 of the Constitution.

  1. The regulation established in Paragraph 4 of Article 32 of the LEP, under which ‘[d]amage to the environment shall be assessed and calculated on the basis of the methodology approved by the Minister of Environment by evaluating the original state (conditions), the significance of negative impact on the environment, the possibilities and period of the natural recovery of the environment, however, the negative impact that was established earlier, i.e. prior to the occurrence of damage to the environment, resulting from a specific economic activity which is allowed, under the established procedure, by authorised institutions and which is carried out without violating the requirements of environmental protection, shall not be assessed’, in view of the content and the scope of regulation, is not in conflict with the constitutional principle of a state under the rule of law consolidated in Article 29 of the Constitution, the constitutional principle of justice, and the principle of the inviolability of property consolidated in Paragraph 1 of Article 23 of the Constitution.
  2. The regulation established in Paragraph 5 of Article 32(1) of the LEP, under which ‘[m]easures for environmental restoration shall be carried out only with the prior approval of the Ministry of Environment or an institution authorised by it. The procedure for choosing measures for environmental restoration and obtaining prior approval shall be established by the Minister of Environment’, in view of the content and the scope of regulation, is not in conflict with the constitutional principles of a state under the rule of law and justice, legal security, freedom of economic activity and initiative as well as the separation of powers, Paragraphs 1, 2, 3 and 5 of Article 46 of the Constitution, and Paragraph 1 of Article 5 of the Constitution.
  3. The regulation established in Article 32(2) of the LEP, under which ‘[a]ll costs of preventive measures and/or measures for environmental restoration shall be compensated for by the economic entity that has caused damage to the environment or posed a real threat of it, even in those cases when the measures in question were carried out by institutions (themselves or through third parties) authorised by the municipality or the state. The economic entity shall not be bound by the obligation to compensate for the costs of preventive measures and/or measures for environmental restoration only if damage to the environment or a real threat of it occurred for reasons of force majeure, also if it proves that damage to the environment or a real threat of it occurred: 1) due to a third party’s actions (act, omission), although all appropriate safety measures were applied; 2) while precisely carrying out an obligatory instruction of an institution authorised by law, with the exception of an instruction concerning pollution or an event resulting from the activities (act, omission) of the economic entity itself. The costs borne by the economic entity in carrying out preventive measures and/or measures for environmental restoration in cases referred to in Paragraph 2 of this article shall be compensated for by the persons who have caused damage to the environment, and, if it is not possible to identify these persons, the said costs shall be compensated for by state or municipal institutions’, in view of the content and the scope of regulation, is not in conflict with the constitutional principle of a state under the rule of law, the constitutional principle of justice, the principle of the inviolability of property consolidated in Paragraph 1 of Article 23 of the Constitution, and the constitutional imperative of environmental protection consolidated in Paragraph 1 of Article 54 of the Constitution.
  4. The regulation established in Paragraph 2 of Article 33 of the LEP, under which “‘[t]he Ministry of Environment, state or municipal institutions that are subordinate to it or other state or municipal institutions may, within the scope of their competence, make claims for compensation for damage to the environment and other losses, including the execution of preventive measures and/or measures for environmental restoration, to the economic entity or another person that has caused damage to the environment or posed a real threat of it, during the period of five years starting from the day when these measures were completed or when the responsible economic entity or another person was identified, taking account of the fact which of the above-mentioned circumstances occurred later’, in view of the content and the scope of regulation, is not in conflict with the constitutional principle of a state under the rule of law, the constitutional principle of justice as well as the principle of freedom of economic activity and initiative consolidated in Paragraph 1 of Article 46 of the Constitution.”

The Constitutional Court

has established:

On 28 January 2014, the Constitutional Court received a petition (Nr. 1B-1/2014) of a group of members of the Seimas requesting an investigation into the compliance of certain provisions of the Law on Environmental Protection with the Constitution, namely, into whether:

– the provisions of Paragraph 2 of Article 32 (wording of 24 March 2005) of the Law on Environmental Protection to the effect that “[t]he users of natural resources and persons carrying out economic activities (hereinafter referred to as economic entities) must take all possible measures so as to avoid any damage to the environment, human health and life, the property and interests of other persons, whilst those who have caused damage must restore the state of the environment, if there is such a possibility, to the original state that existed prior to the occurrence of damage to the environment, as well as compensate for all losses”, in view of the content of norms and the scope of regulation, are not in conflict with the constitutional principles of a state under the rule of law and justice, the principle of the equality of rights of persons consolidated in Article 29 of the Constitution, the principle of the inviolability of property consolidated in Paragraph 1 of Article 23 of the Constitution, and the imperative of environmental protection consolidated in Paragraph 1 of Article 54 of the Constitution;

– Paragraph 4 of Article 32 (wording of 24 March 2005) of the Law on Environmental Protection, in view of the content of norms and the scope of regulation, is not in conflict with “the constitutional principle of a state under the rule of law consolidated in Article 29 of the Constitution”, the constitutional principle of justice, and the principle of the inviolability of property consolidated in Paragraph 1 of Article 23 of the Constitution;

– Paragraph 5 of Article 321 of the Law on Environmental Protection, in view of the content of norms and the scope of regulation, is not in conflict with “the constitutional principles of a state under the rule of law and justice, legal security, freedom of economic activity and initiative as well as the separation of powers”, Paragraph 1 of Article 5, and Paragraphs 1, 2, 3 and 5 of Article 46 of the Constitution;

– Article 322 of the Law on Environmental Protection, in view of the content of norms and the scope of regulation, is not in conflict with the constitutional principles of a state under the rule of law and justice, the principle of the inviolability of property consolidated in Paragraph 1 of Article 23 of the Constitution, and the imperative of environmental protection consolidated in Paragraph 1 of Article 54 of the Constitution;

– Paragraph 2 of Article 33 of the Law on Environmental Protection, in view of the content of norms and the scope of regulation, is not in conflict with the constitutional principles of a state under the rule of law and justice as well as the principle of freedom of economic activity and initiative consolidated in Paragraph 1 of Article 46 of the Constitution.

The Constitutional Court

holds that:

1. A group of members of the Seimas, the petitioner, requests an investigation into whether the provisions (specified by it) of Paragraph 2, and Paragraph 4 of Article 32 (wording of 24 March 2005), Paragraph 5 of Article 321, Article 322, and Paragraph 2 of Article 33 of the Law on Environmental Protection are not in conflict with the Constitution.2. The Constitutional Court has held on more than one occasion that, under the Constitution and the Law on the Constitutional Court, it does not decide the questions concerning the application of legal acts, also that such questions are decided by the institution that has the powers to apply legal acts; if laws contain obscurities, ambiguities, and gaps, it is the duty of the legislature to eliminate them (the Constitutional Court’s decisions of 23 September 2002, 20 November 2006, 6 September 2007, 12 September 2007, 16 November 2010, and 5 September 2011, its ruling of 18 April 2012, and its decision of 11 May 2012). The issues of the application of law that have not been decided by the legislature are a matter of judicial practice (the Constitutional Court’s ruling of 9 July 1998, its decisions of 20 November 2006, 6 September 2007, and 12 September 2007, its ruling of 18 April 2012, and its decision of 11 May 2012); thus, these issues may be decided by courts which consider disputes regarding the application of respective legal acts (parts thereof) (the Constitutional Court’s decisions of 20 November 2006, 6 September 2006, and 12 September 2007).Petitions requesting the construction as to how the provisions of a law (or another legal act) must applied do not fall under the jurisdiction of the Constitutional Court (the Constitutional Court’s decisions of 23 September 2002, 20 November 2006, 2 July 2010, 16 November 2010, and 5 September 2011).3. 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. As mentioned before, a group of members of the Seimas, the petitioner, requests an investigation, inter alia, into the compliance of the provisions (specified in the petition) of Paragraph 2 of Article 32 (wording of 24 March 2005) of the Law on Environmental Protection, in view of the content of norms and the scope of regulation, with the constitutional principles of a state under the rule of law and justice, the principle of the inviolability of property consolidated in Paragraph 1 of Article 23 of the Constitution, the principle of the equality of rights of persons consolidated in Article 29 of the Constitution, and the imperative of environmental protection consolidated in Paragraph 1 of Article 54 of the Constitution, as well as into the compliance of Article 322 of the Law on Environmental Protection, in view of the content of norms and the scope of regulation, with the constitutional principles of a state under the rule of law and justice, the principle of the inviolability of property consolidated in Paragraph 1 of Article 23 of the Constitution, and the imperative of environmental protection consolidated in Paragraph 1 of Article 54 of the Constitution.In the petition, the petitioner also provided some of the explanations regarding the compliance of the impugned provisions of Paragraph 2 of Article 32 (wording of 24 March 2005) of the Law on Environmental Protection and the legal regulation consolidated in Article 322 of the said law with the Constitution.4.1. Paragraph 2 of Article 32 “Damage to the Environment and the Restoration of the State of the Environment” of the Law on Environmental Protection, inter alia, prescribes: “The users of natural resources and persons carrying out economic activities (hereinafter referred to as economic entities) must take all possible measures so as to avoid any damage to the environment, human health and life, the property and interests of other persons, whilst those who have caused damage must restore the state of the environment, if there is such a possibility, to the original state that existed prior to the occurrence of damage to the environment, and compensate for all losses. <...>”Article 322 “Compensation for Costs” of the Law on Environmental Protection prescribes:“All costs of preventive measures and/or measures for environmental restoration shall be compensated for by the economic entity that has caused damage to the environment or posed a real threat of it, even in those cases when the measures in question were carried out by institutions (themselves or through third parties) authorised by the municipality or the state.The economic entity shall not be bound by the obligation to compensate for the costs of preventive measures and/or measures for environmental restoration only if damage to the environment or a real threat of it occurred for reasons of force majeure, also if it proves that damage to the environment or a real threat of it occurred:1) due to a third party’s actions (act, omission), although all appropriate safety measures were applied;2) while precisely carrying out an obligatory instruction of an institution authorised by law, with the exception of an instruction concerning pollution or an event resulting from the activities (act, omission) of the economic entity itself.The costs borne by the economic entity in carrying out preventive measures and/or measures for environmental restoration in cases referred to in Paragraph 2 of this article are compensated for by the persons who have caused damage to the environment, and, if it is not possible to identify these persons, the said costs shall be compensated for by state or municipal institutions.”4.2. It has been mentioned that a group of members of the Seimas, the petitioner, requests an investigation, inter alia, into the compliance of the provisions (specified by it) of Paragraph 2 of Article 32 (wording of 24 March 2005) and Article 322 of the Law on Environmental Protection with, among other things, the constitutional principles of a state under the rule of law and justice.4.2.1. The petitioner’s position concerning the compliance of this legal regulation with the constitutional principles of a state under the rule of law and justice is virtually substantiated by the fact that, according to the petitioner, this legal regulation implies compensation for damage to the environment twice: it establishes an obligation for the person who has caused damage to the environment to compensate for damage in kind (to apply measures for environmental restoration) and, at the same time, to compensate for it in money (to compensate for losses); thereby the compensatory function of civil liability is negated.4.2.2. However, these statements of the petitioner provide no legal substantiation why such legal regulation under which the economic entity that has caused damage to the environment is under the obligation to restore the state of the environment, if there is such a possibility, to the original state that existed prior to the occurrence of damage to the environment, as well as to compensate for all losses, would be in conflict with the constitutional principles of a state under the rule of law and justice.It is not clear from the petitioner’s statements why the legal regulation which is established in Paragraph 2 of Article 32 (wording of 24 March 2005) and Article 322 of the Law on Environmental Protection and which establishes, among other things, an obligation to restore the state of the environment, if there is such a possibility, to the original state that existed prior to the occurrence of damage to the environment, as well as to compensate for all losses, obliges the economic entity to compensate for damage to the environment, purportedly, twice. The petitioner provides no constitutional arguments why such legal regulation under which the economic entity must not only apply measures for the restoration of the state of the environment but also compensate for all losses incurred as a result of damage to the environment negates the requirement to compensate for damage in a fair manner (especially in view of, inter alia, the fact that it is not always possible to restore the state of the environment to the original state).In addition, the petitioner is silent as regards the provisions of the official constitutional doctrine, which are particularly important in the context of the petition in question, to the effect that obligations stem from Article 54 of the Constitution for all persons who are present on the territory of the Republic of Lithuania as well: they must refrain from any action that would inflict damage on the land, the underground, water, air, flora, and fauna; the legislature must prohibit any actions that inflict damage on the natural environment and its objects, and establish legal liability for such actions.4.2.3. In support of its position concerning the compliance of the provisions of Paragraph 2 of Article 32 (wording of 24 March 2005), and Article 322 of the Law on Environmental Protection with the constitutional principles of a state under the rule of law and justice, the petitioner states, among other things, the following:– “<...> A person’s obligation provided for in Article 32 of the LEP to apply measures for environmental restoration and to compensate for the damage caused, as well as the regulation of compensation for the costs of measures for environmental restoration, provided for in Article 32(2) of the same law, are not in compliance with the principles of a state under the rule of law and justice, which are established in the Constitution, since, in this case, an obligation which is composed of two parallel elements and which implies the application of dual civil liability is applied. By applying measures for environmental restoration, the person who has caused damage seeks to restore the natural environment to the original state, therefore, with the help of measures for environmental restoration, the original state of the environment is achieved or almost achieved. In this way, the provision of the law requiring compensation for damage from the person who is responsible for the damage and who has applied measures for environmental restoration and restored the natural environment completely or almost completely violates the principles of a state under the rule of law, justice, and proportionality”;– “<...> an economic entity seeking, with the help of measures for environmental restoration which are applied operatively and effectively, to reduce the damage caused to the environment, reasonably expects that the application of these measures will be assessed as a positive behaviour of an entity and that this will be taken into due account when establishing the amount of the damage. Meanwhile, neither Paragraph 2 of Article 32 nor Article 32(2) of the LEP establishes such regulation; quite to the contrary, they establish two parallel obligations, i.e. to compensate for damage both in kind and in money.”Having submitted these statements so as to substantiate the doubts regarding the non-compliance of the impugned legal regulation with the constitutional principles of a state under the rule of law and justice, the petitioner virtually seeks clarification on possible uncertainties regarding the application of the legal norms that are consolidated in Paragraph 2 of Article 32 (wording of 24 March 2005) and Article 322 of the Law on Environmental Protection.4.2.4. The petitioner’s petition also separately provides explanations concerning the compliance of the legal regulation which is indicated in the petition and established in Item 1 of Paragraph 2 of Article 322 of the Law on Environmental Protection with “the principles of a state under the rule of law and justice, legal security, freedom of economic activity and initiative as well as the inviolability of property”. However, the statements substantiating these doubts of the petitioner are virtually aimed at only seeking clarification on the content of this legal regulation and possible uncertainties regarding its application.4.2.5. Thus, there is a ground to hold that the petitioner’s petition requesting an investigation into the compliance of the provisions (specified in the petition) of Paragraph 2 of Article 32 (wording of 24 March 2005), and Article 322 of the Law on Environmental Protection, in view of the content of norms and the scope of regulation, with the constitutional principles of a state under the rule of law and justice, is virtually substantiated by uncertainties arising in the practice of the construction and application of law.4.3. It has been mentioned that a group of members of the Seimas, the petitioner, requests an investigation, inter alia, into the compliance of the provisions (specified in the petition) of Paragraph 2 of Article 32 (wording of 24 March 2005), and Article 322 of the Law on Environmental Protection with the principle of the inviolability of property consolidated in Paragraph 1 of Article 23 of the Constitution, also the compliance of the provisions (specified in the petition) of Paragraph 2 of Article 32 (wording of 24 March 2005) of the Law on Environmental Protection with the principle of the equality of rights of persons consolidated in Article 29 of the Constitution.4.3.1. In support of its position, the petitioner states: “Where an entity is active and complies with the requirements of legal acts, which are related to the elimination of negative effects on the natural environment, the scope of negative legal effects applied to it is larger than that applied to an entity which does not take any actions to restore the environment and eliminate negative effects. An entity which implements measures for environmental restoration is in a less favourable situation as compared to an entity which does not take any measures for environmental restoration at all, and particularly in those cases when, due to various reasons, the state itself does not take the said measures as well. It is clear that, under the regulation consolidated in the LEP, an entity which implements measures for environmental restoration incurs higher costs, thereby groundlessly depriving the owner of property and, accordingly, violating the principle of the inviolability of property.”However, having submitted these statements so as to substantiate the doubts regarding the non-compliance of the impugned legal regulation with the principle of the inviolability of property consolidated in Paragraph 1 of Article 23 of the Constitution, also with the principle of the equality of rights of persons consolidated in Article 29 of the Constitution, the petitioner virtually raises the questions related to the application of the impugned legal regulation and seeks clarification on the content of this legal regulation and possible uncertainties regarding its application.

4.3.2. It should be noted that, although, in the petition, the petitioner also provides explanations regarding the compliance of Article 322 of the Law on Environmental Protection with the principle of the inviolability of property consolidated in Paragraph 1 of Article 23 of the Constitution, these explanations are virtually analogous to those regarding the compliance of the impugned legal regulation of Paragraph 2 of Article 32 (wording of 24 March 2005) and Article 322 of the Law on Environmental Protection with the constitutional principles of a state under the rule of law and justice, by means of which, as it has been held, the petitioner virtually seeks clarification on possible uncertainties regarding the application of the legal norms that are consolidated in Paragraph 2 of Article 32 (wording of 24 March 2005) and Article 322 of the Law on Environmental Protection.

4.3.3. Thus, there is a ground to hold that the petitioner’s petition requesting an investigation into the compliance of the provisions (specified in the petition) of Paragraph 2 of Article 32 (wording of 24 March 2005), and Article 322 of the Law on Environmental Protection, in view of the content of norms and the scope of regulation, with the principle of the inviolability of property consolidated in Paragraph 1 of Article 23 of the Constitution, also the compliance of the provisions (specified in the petition) of Paragraph 2 of Article 32 (wording of 24 March 2005) of the Law on Environmental Protection, in view of the content of norms and the scope of regulation, with the principle of the equality of rights of persons consolidated in Article 29 of the Constitution, is virtually substantiated by uncertainties arising in the practice of the construction and application of law.4.4. It has been mentioned that a group of members of the Seimas, the petitioner, requests an investigation, inter alia, into the compliance of the provisions (specified by it) of Paragraph 2 of Article 32 (wording of 24 March 2005), also Article 322 of the Law on Environmental Protection with the imperative of environmental protection consolidated in Paragraph 1 of Article 54 of the Constitution.4.4.1. The petitioner’s position concerning the compliance of the impugned legal regulation with the imperative of environmental protection consolidated in Paragraph 1 of Article 54 of the Constitution is virtually substantiated by the fact that, according to the petitioner, this legal regulation does not provide for compensation for damage in kind as a matter of priority. According to the petitioner, it is particularly important to provide for this priority due to the fact that, when an economic entity does not apply measures for environmental restoration, the state can also decide not apply them, therefore, situations may occur when measures for environmental restoration are not applied or applied insufficiently. In addition, the constitutional imperative of environmental protection also implies the establishment of proportionate requirements for economic entities; they cannot not be required to do what is objectively impossible.4.4.2. However, by means of these statements, the petitioner provides no legal substantiation why such legal regulation under which the economic entity that has caused damage to the environment is under the obligation to restore the state of the environment, if there is such a possibility, to the original state that existed prior to the occurrence of damage to the environment, as well as to compensate for all losses, is in conflict with the imperative of environmental protection consolidated in Paragraph 1 of Article 54 of the Constitution.The petitioner does not provide any constitutional arguments why, in its opinion, the legislature, when regulating, under the Constitution, compensation for damage to the environment and complying with the imperative of environmental protection, may not establish an obligation for the economic entity to restore the state of the environment, if there is such a possibility, to the original state that existed prior to the occurrence of damage to the environment, and entrench its obligation to compensate for losses as well.When assessing the entirety of the petitioner’s statements concerning the compliance of the provisions of Paragraph 2 of Article 32 (wording of 24 March 2005), also Article 322 of the Law on Environmental Protection with the imperative of environmental protection consolidated in Paragraph 1 of Article 54 of the Constitution, it should also be noted that the said statements are virtually aimed at seeking clarification on the content of this legal regulation and possible uncertainties regarding its application.4.4.3. Thus, there is a ground to hold that, when requesting an investigation into the compliance of the indicated provisions of Paragraph 2 of Article 32 (wording of 24 March 2005), and Article 322 of the Law on Environmental Protection, in view of the content of norms and the scope of regulation, with the imperative of environmental protection consolidated in Paragraph 1 of Article 54 of the Constitution, the petitioner virtually requests the construction as to how the impugned legal regulation must be applied.4.5. To sum up the foregoing, it should be held that the petition of a group of members of the Seimas, the petitioner, requesting an investigation into the compliance of the provisions (specified in the petition) of Paragraph 2 of Article 32 (wording of 24 March 2005), also Article 322 of the Law on Environmental Protection, in view of the content of norms and the scope of regulation, with the Constitution, is virtually substantiated by uncertainties arising in the practice of the construction and application of law.5. It has been mentioned that a group of members of the Seimas, the petitioner, requests an investigation into whether, among other things, Paragraph 4 of Article 32 (wording of 24 March 2005) of the Law on Environmental Protection, in view of the content of norms and the scope of regulation, is not in conflict with “the constitutional principle of a state under the rule of law consolidated in Article 29 of the Constitution”, the constitutional principle of justice, and the principle of the inviolability of property consolidated in Paragraph 1 of Article 23 of the Constitution.5.1. Paragraph 4 of Article 32 “Damage to the Environment and the Restoration of the State of the Environment” (wording of 24 March 2005) of the Law on Environmental Protection prescribes: “Damage to the environment shall be assessed and calculated on the basis of the methodology approved by the Minister of Environment by evaluating the original state (conditions), the significance of negative impact on the environment, the possibilities and period of the natural recovery of the environment, however, the negative impact that was established earlier, i.e. prior to the occurrence of damage to the environment, resulting from a specific economic activity which is allowed, under the established procedure, by authorised institutions and which is carried out without violating the requirements of environmental protection, shall not be assessed.”5.2. In support of its position, the petitioner notes that this legal regulation implies “<...> (i) the estimation of only mathematical losses by applying the relevant formula and, accordingly, not implying an obligation for state institutions to give the estimate of the losses that are actually caused and not hypothetical; (ii) the calculation of losses, irrespective of the result of the application of measures for restoration and other circumstances. Such regulation consolidated in the LEP determines that a punitive and not a compensatory sanction will be applied to the person who has caused damage.” According to the petitioner, “the principle of a state under the rule of law and justice consolidated in the Constitution requires that a static procedure which does not reflect a real situation would not be invoked in the assessment of the damage caused to the environment, as provided for in Paragraph 4 of Article 32 of the LEP, by completely ignoring the actual application and implementation of measures for environmental restoration”.5.3. However, these statements of the petitioner provide no legal substantiation why the impugned legal regulation of the assessment and calculation of damage to the environment, which establishes that the assessment and calculation of damage to the environment is carried out on the basis of the methodology approved by the Minister of Environment, and why only certain general principles for the assessment and calculation of damage to the environment, which are indicated, in the petitioner’s opinion, are in conflict with “the constitutional principle of a state under the rule of law consolidated in Article 29 of the Constitution”, the constitutional principle of justice, and the principle of the inviolability of property consolidated in Paragraph 1 of Article 23 of the Constitution.It is not clear from the petitioner’s statements why the legal regulation of the assessment and calculation of damage to the environment, which is established in Paragraph 4 of Article 32 (wording of 24 March 2005) of the Law on Environmental Protection, does not ensure the actual compensation for damage to the environment.It should also be noted that, in order to substantiate its doubts regarding the constitutionality of the impugned legal regulation, the petitioner also refers to the opinions of international organisations, however, the references to the position set out by the International Oil Pollution Compensation Fund cannot be regarded as legal arguments substantiating the petitioner’s doubts regarding the non-compliance of Paragraph 4 of Article 32 (wording of 24 March 2005) of the Law on Environmental Protection with the Constitution.5.4. When assessing the entirety of the petitioner’s statements concerning the compliance of Paragraph 4 of Article 32 (wording of 24 March 2005) of the Law on Environmental Protection with “the constitutional principle of a state under the rule of law consolidated in Article 29 of the Constitution”, the constitutional principle of justice, and the principle of the inviolability of property consolidated in Paragraph 1 of Article 23 of the Constitution, it should also be noted that these statements are virtually aimed at seeking clarification as to how the impugned legal regulation must be applied.5.5. Thus, there is a ground to hold that, having submitted the petition requesting an investigation into the compliance of Paragraph 4 of Article 32 (wording of 24 March 2005) of the Law on Environmental Protection, in view of the content of norms and the scope of regulation, with the Constitution, the petitioner virtually seeks clarification on possible uncertainties regarding the application of this legal regulation.6. It has been mentioned that a group of members of the Seimas, the petitioner, requests an investigation into whether, among other things, Paragraph 5 of Article 321 of the Law on Environmental Protection, in view of the content of norms and the scope of regulation, is not in conflict with “the constitutional principles of a state under the rule of law and justice, legal security, freedom of economic activity and initiative as well as the separation of powers”, Paragraph 1 of Article 5, and Paragraphs 1, 2, 3, and 5 of Article 46 of the Constitution.6.1. Paragraph 5 of Article 321 “Application of Preventive Measures and Measures for Environmental Restoration” of the Law on Environmental Protection prescribes: “Measures for environmental restoration shall be carried out only with the prior approval of the Ministry of Environment or an institution authorised by it. The procedure for choosing measures for environmental restoration and obtaining prior approval shall be established by the Minister of Environment.”6.2. The petitioner’s position concerning the compliance of this legal regulation with the Constitution is virtually substantiated by the fact that the procedure for choosing measures for environmental restoration and obtaining prior approval (at least the essential and main rules of this process), according to the petitioner, must be regulated not by sub-statutory legal act but by law.

6.3. However, the petitioner’s statements provide no legal substantiation why such legal regulation under which measures for environmental restoration may be carried out only with a relevant institution’s prior approval, the procedure for obtaining which as well as for choosing measures for environmental restoration is established by the Minister of Environment, is in conflict with “the constitutional principles of a state under the rule of law and justice, legal security, freedom of economic activity and initiative as well as the separation of powers”, Paragraph 1 of Article 5, and Paragraphs 1, 2, 3 and 5 of Article 46 of the Constitution.

In this context, it should be noted that the petitioner is silent, in addition to other things, as regards the provisions of the official constitutional doctrine, which are particularly important in the context of the petition in question, to the effect that an obligation stems from Article 54 of the Constitution for the state to establish such legal regulation and to act so that the natural environment and its individual objects would be protected, and that the rational use of natural resources as well as their restoration and increase would be ensured; the legislature must prohibit any actions that inflict damage on the natural environment and its objects, and establish legal liability for such actions; the state, being under the constitutional obligation to act so that the protection of the natural environment and its individual objects, the rational use of natural resources, their restoration and increase would be ensured, may establish, by means of a law, such legal regulation under which the use of individual objects (natural resources) of the natural environment would be limited while certain subjects of legal relations would be obliged to act accordingly or refrain from certain actions.

6.4. In support of its position, the petitioner states, among other things, the following: “<...> a conclusion can be drawn on the basis of the provisions of the existing sub-statutory legal regulation that when a law does not provide for any essential conditions for restricting the activities of an economic entity and when a law only provides for the delegation of responsibility to the Ministry of Environment for approving the essential conditions of economic activities, this leads to a situation when the sub-statutory regulation is unclear and an economic entity does not know and cannot know the scope of its rights and the limits of economic activities. For example, pollution response operations and measures for environmental restoration are regulated by different sub-statutory legal acts: respectively, by the Order of the Minister of Environment of the Republic of Lithuania (No. 471) “On the Approval of the Methodology of the Calculation of the Amounts of Compensation for the Damage Caused to the Environment” of 9 September 2002 (Official Gazette Valstybės žinios, 2002, No. 93-4026) (hereinafter referred to as the Methodology) and the above-mentioned Description.”

It should be noted that, having submitted these statements so as to substantiate the doubts regarding the non-compliance of the impugned legal regulation with “the constitutional principles of a state under the rule of law and justice, legal security, freedom of economic activity and initiative as well as the separation of powers”, Paragraph 1 of Article 5, and Paragraphs 1, 2, 3 and 5 of Article 46 of the Constitution, the petitioner virtually seeks clarification on arising uncertainties regarding the application of these legal norms.

6.5. Thus, there is a ground to hold that the petitioner’s petition requesting an investigation into the compliance of Paragraph 5 of Article 321 of the Law on Environmental Protection, in view of the content of norms and the scope of regulation, with the Constitution virtually requests the construction as to how the impugned legal regulation must be applied.

7. It has been mentioned that a group of members of the Seimas, the petitioner, requests an investigation, among other things, into whether Paragraph 2 of Article 33 of the Law on Environmental Protection, in view of the content and the scope of regulation, is not in conflict with the constitutional principles of a state under the rule of law and justice as well as the principle of freedom of economic activity and initiative consolidated in Paragraph 1 of Article 46 of the Constitution.7.1. Paragraph 2 of Article 33 “Claims for Compensation for Damage” of the Law on Environmental Protection prescribes: “The Ministry of Environment, state or municipal institutions that are subordinate to it or other state or municipal institutions may, within the scope of their competence, make claims for compensation for damage to the environment and other losses, including the execution of preventive measures and/or measures for environmental restoration, to the economic entity or another person that has caused damage to the environment or posed a real threat of it, during the period of five years starting from the day when these measures were completed or when the responsible economic entity or another person was identified, taking account of the fact which of the above-mentioned circumstances occurred later.”7.2. According to the petitioner, the legal regulation consolidated in Paragraph 2 of Article 33 of the Law on Environmental Protection grants, among other things, the right to the state to choose when to make a claim, and also whether to apply the legal regulation of the periods of limitation for a claim, which is established in this paragraph or the Civil Code of the Republic of Lithuania, and, thus, to establish obviously unequal rights of the state and economic entities.In support of its position concerning the constitutionality of Paragraph 2 of Article 33 of the Law on Environmental Protection, the petitioner invokes the judicial practice which, according to the petitioner, confirms its statements concerning the non-compliance of the legal regulation with the Constitution.In the petitioner’s opinion, Paragraph 2 of Article 33 of the Law on Environmental Protection provides for the moment when the right to a claim for the damage caused to the environment arises as well as the statutory limitation period for this claim, however, in the judicial practice, this provision is construed and applied differently, therefore, it is unclear. According to the petitioner, this legal regulation, as regards its application in the judicial practice, is unclear also because of the fact that, due to it, in an analogous situation, one entity is awarded a certain amount of damages, while another is awarded a totally different amount or is not required to compensate for damage any longer.7.3. It should be noted that, by means of these statements, the petitioner does not substantiate the non-compliance of the impugned legal regulation with the constitutional principles of a state under the rule of law and justice as well as the principle of freedom of economic activity and initiative consolidated in Paragraph 1 of Article 46 of the Constitution, but it provides arguments by means of which it virtually requests the construction as to how the legal regulation established in Paragraph 2 of Article 33 of the Law on Environmental Protection must be applied in hearing claims for compensation for damage to the environment.

7.4. Thus, there is a ground to hold that the petitioner’s petition requesting an investigation into the compliance of Paragraph 2 of Article 33 of the Law on Environmental Protection with the Constitution virtually requests the construction as to how the impugned legal regulation must be applied.

  1. In this context, it should also be noted that, in the petition, a group of members of the Seimas, the petitioner formulated, among other things, a proposal to the Constitutional Court to refer to the Court of Justice of the European Union (CJEU) with a request for a preliminary ruling on the construction of certain provisions of Directive 2004/35/CE of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage (hereinafter referred to as the Directive), for the purpose of implementing which, according to the petitioner, the impugned legal regulation is established.

8.1. The petitioner, when requesting that a reference to the Court of Justice of the European Union be made with a request for a preliminary ruling on the construction of the provisions (specified by it) of the Directive, among other things:

– indicated that the Law on Environmental Protection, inter alia, implements the Directive;

– while stating that “the provisions (the issue of constitutionality of which is raised in this petition) of the LEP have been incorporated in the Lithuanian legal system” (in the context of the implementation of the Directive), did not, at the same time, indicate that this has been done improperly;

– noted that “the articles (the issue of constitutionality of which is raised) of the LEP which are specified in the petition are related to the implementation of EU law, therefore, accordingly, this petition is related to the proper construction of the law of the European Union and its proper implementation in the national law”;

– invoked the case-law of the Court of Justice of the European Union under which, among other things, in certain cases when the notions used in the national law are analogous to the notions consolidated in the law of the European Union, a court of final instance is under the obligation to make a reference for a preliminary ruling on the construction of the provisions of the legal acts of the European Union;

– underlined that “it is clear that the constitutional justice case at issue raises complex issues, which are related to the implementation of the essential principles of the environmental policy of the European Union, regarding the construction of law, therefore, <...> not only the national interest but that of the European Union as well is important in order to properly and correctly adjust the rules taken from the law of the European Union and to ensure the smooth <...> implementation of the provisions of environmental policy at the national level”;

– formulated a proposal that “in the constitutional justice case at issue, the Constitutional Court, before giving its decision on the compatibility of the indicated provisions of the LEP with the Constitution, would assess and, if the relation of the provisions with EU law is impugned, and, if deemed necessary, would refer to the CJEU for a preliminary ruling”.

8.2. The petitioner substantiated the necessity to refer to the Court of Justice of the European Union as regards the construction of particular provisions of the Directive, among other things, by the statements which are analogous to those by means of which it substantiated its doubts regarding the non-compliance of the impugned legal regulation consolidated in the Law on Environmental Protection with the Constitution, i.e. by those statements which, as it was mentioned before, virtually request the construction as to how the impugned legal regulation must be applied.

8.3. When assessing the entirety of the indicated and other statements as regards the petitioner’s request that the Constitutional Court refer to the Court of Justice of the European Union for a preliminary ruling on the construction of the provisions (specified by the petitioner) of the Directive, in the context of the arguments provided in the petitioner’s petition requesting an investigation into the constitutionality of the indicated provisions of the Law on Environmental Protection, it should be noted that the said statements virtually do not substantiate the necessity, when deciding on the constitutionality of the impugned legal regulation, to get clarification as to how the provisions of the Directive for the purpose of implementing which, inter alia, according to the petitioner, the impugned legal regulation is intended, must be understood, but they are aimed at seeking clarification on uncertainties, according to the petitioner, arising in the application and construction of the legal regulation which is impugned by the petitioner and established in the Law on Environmental Protection.

  1. Thus, to summarise the above, it should be held that the entirety of the arguments submitted by a group of members of the Seimas, the petitioner, in the petition provides a ground to draw a conclusion that the petitioner’s petition requesting an investigation, to the extent indicated in the petition, into the compliance of the provisions of Paragraph 2, and Paragraph 4 of Article 32 (wording of 24 March 2005), Paragraph 5 of Article 321, Article 322, and Paragraph 2 of Article 33 of the Law on Environmental Protection with the Constitution, is virtually substantiated by uncertainties arising in the practice of the construction and application of law.

As mentioned before, petitions requesting the construction as to how the provisions of a law (or another legal act) must applied do not fall under the jurisdiction of the Constitutional Court.

It has also been mentioned that, under Item 2 of Paragraph 1 of Article 69 of the Law on the Constitutional Court, by its decision, the Constitutional Court 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.

  1. In the light of the foregoing arguments, the Constitutional Court must refuse to consider the petition of a group of members of the Seimas, the petitioner, requesting an investigation into whether:

– the provisions of Paragraph 2 of Article 32 (wording of 24 March 2005) of the Law on Environmental Protection to the effect that “[t]he users of natural resources and persons carrying out economic activities (hereinafter referred to as economic entities) must take all possible measures so as to avoid any damage to the environment, human health and life, the property and interests of other persons, whilst those who have caused damage must restore the state of the environment, if there is such a possibility, to the original state that existed prior to the occurrence of damage to the environment, as well as compensate for all losses”, in view of the content of norms and the scope of regulation, are not in conflict with the constitutional principles of a state under the rule of law and justice, the principle of the equality of rights of persons consolidated in Article 29 of the Constitution, the principle of the inviolability of property consolidated in Paragraph 1 of Article 23 of the Constitution, and the imperative of environmental protection consolidated in Paragraph 1 of Article 54 of the Constitution;

– Paragraph 4 of Article 32 (wording of 24 March 2005) of the Law on Environmental Protection, in view of the content of norms and the scope of regulation, is not in conflict with “the constitutional principle of a state under the rule of law consolidated in Article 29 of the Constitution”, the constitutional principle of justice, and the principle of the inviolability of property consolidated in Paragraph 1 of Article 23 of the Constitution;

– Paragraph 5 of Article 321 of the Law on Environmental Protection, in view of the content of norms and the scope of regulation, is not in conflict with “the constitutional principles of a state under the rule of law and justice, legal security, freedom of economic activity and initiative as well as the separation of powers”, Paragraph 1 of Article 5, and Paragraphs 1, 2, 3 and 5 of Article 46 of the Constitution;

– Article 322 of the Law on Environmental Protection, in view of the content of norms and the scope of regulation, is not in conflict with the constitutional principles of a state under the rule of law and justice, the principle of the inviolability of property consolidated in Paragraph 1 of Article 23 of the Constitution, and the imperative of environmental protection consolidated in Paragraph 1 of Article 54 of the Constitution;

– Paragraph 2 of Article 33 of the Law on Environmental Protection, in view of the content of norms and the scope of regulation, is not in conflict with the constitutional principles of a state under the rule of law and justice as well as the principle of freedom of economic activity and initiative consolidated in Paragraph 1 of Article 46 of the Constitution.

Conforming to Paragraphs 3 and 4 of Article 22, Article 28, Item 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 of a group of members of the Seimas, the petitioner, requesting an investigation into whether:

“1. The regulation established in Paragraph 2 of Article 32 of the LEP [the Law on Environmental Protection], under which ‘[t]he users of natural resources and persons carrying out economic activities (hereinafter referred to as economic entities) must take all possible measures so as to avoid any damage to the environment, human health and life, the property and interests of other persons, whilst those who have caused damage must restore the state of the environment, if there is such a possibility, to the original state that existed prior to the occurrence of damage to the environment, as well as compensate for all losses’, in view of the content and the scope of regulation, is not in conflict with the constitutional principle of a state under the rule of law, the constitutional principle of justice, the constitutional principle of the equality of rights of persons consolidated in Article 29 of the Constitution, the principle of the inviolability of property consolidated in Paragraph 1 of Article 23 of the Constitution, and the constitutional imperative of environmental protection consolidated in Paragraph 1 of Article 54 of the Constitution.

  1. The regulation established in Paragraph 4 of Article 32 of the LEP, under which ‘[d]amage to the environment shall be assessed and calculated on the basis of the methodology approved by the Minister of Environment by evaluating the original state (conditions), the significance of negative impact on the environment, the possibilities and period of the natural recovery of the environment, however, the negative impact that was established earlier, i.e. prior to the occurrence of damage to the environment, resulting from a specific economic activity which is allowed, under the established procedure, by authorised institutions and which is carried out without violating the requirements of environmental protection, shall not be assessed’, in view of the content and the scope of regulation, is not in conflict with the constitutional principle of a state under the rule of law consolidated in Article 29 of the Constitution, the constitutional principle of justice, and the principle of the inviolability of property consolidated in Paragraph 1 of Article 23 of the Constitution.
  2. The regulation established in Paragraph 5 of Article 32(1) of the LEP, under which ‘[m]easures for environmental restoration shall be carried out only with the prior approval of the Ministry of Environment or an institution authorised by it. The procedure for choosing measures for environmental restoration and obtaining prior approval shall be established by the Minister of Environment’, in view of the content and the scope of regulation, is not in conflict with the constitutional principles of a state under the rule of law and justice, legal security, freedom of economic activity and initiative as well as the separation of powers, Paragraphs 1, 2, 3 and 5 of Article 46 of the Constitution, and Paragraph 1 of Article 5 of the Constitution.
  3. The regulation established in Article 32(2) of the LEP, under which ‘[a]ll costs of preventive measures and/or measures for environmental restoration shall be compensated for by the economic entity that has caused damage to the environment or posed a real threat of it, even in those cases when the measures in question were carried out by institutions (themselves or through third parties) authorised by the municipality or the state. The economic entity shall not be bound by the obligation to compensate for the costs of preventive measures and/or measures for environmental restoration only if damage to the environment or a real threat of it occurred for reasons of force majeure, also if it proves that damage to the environment or a real threat of it occurred: 1) due to a third party’s actions (act, omission), although all appropriate safety measures were applied; 2) while precisely carrying out an obligatory instruction of an institution authorised by law, with the exception of an instruction concerning pollution or an event resulting from the activities (act, omission) of the economic entity itself. The costs borne by the economic entity in carrying out preventive measures and/or measures for environmental restoration in cases referred to in Paragraph 2 of this article shall be compensated for by the persons who have caused damage to the environment, and, if it is not possible to identify these persons, the said costs shall be compensated for by state or municipal institutions’, in view of the content and the scope of regulation, is not in conflict with the constitutional principle of a state under the rule of law, the constitutional principle of justice, the principle of the inviolability of property consolidated in Paragraph 1 of Article 23 of the Constitution, and the constitutional imperative of environmental protection consolidated in Paragraph 1 of Article 54 of the Constitution.
  4. The regulation established in Paragraph 2 of Article 33 of the LEP, under which “‘[t]he Ministry of Environment, state or municipal institutions that are subordinate to it or other state or municipal institutions may, within the scope of their competence, make claims for compensation for damage to the environment and other losses, including the execution of preventive measures and/or measures for environmental restoration, to the economic entity or another person that has caused damage to the environment or posed a real threat of it, during the period of five years starting from the day when these measures were completed or when the responsible economic entity or another person was identified, taking account of the fact which of the above-mentioned circumstances occurred later’, in view of the content and the scope of regulation, is not in conflict with the constitutional principle of a state under the rule of law, the constitutional principle of justice as well as the principle of freedom of economic activity and initiative consolidated in Paragraph 1 of Article 46 of the Constitution.”

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

Justices of the Constitutional Court:                                     Toma Birmontienė
                                                                                                         Pranas Kuconis
                                                                                                         Gediminas Mesonis
                                                                                                         Ramutė Ruškytė
                                                                                                         Egidijus Šileikis
                                                                                                         Algirdas Taminskas
                                                                                                         Romualdas Kęstutis Urbaitis
                                                                                                         Dainius Žalimas