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On accepting a petition of the petitioner

 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 TO INVESTIGATE WHETHER THE REPUBLIC OF LITHUANIA LAW ON THE LIQUEFIED NATURAL GAS TERMINAL AND THE RESOLUTION (NO. 199) OF THE GOVERNMENT OF THE REPUBLIC OF LITHUANIA “ON THE IMPLEMENTATION OF THE REPUBLIC OF LITHUANIA LAW ON THE LIQUEFIED NATURAL GAS TERMINAL” OF 15 FEBRUARY 2012 (WORDING OF 11 JULY 2012) ARE NOT IN CONFLICT WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA

 12 December 2012

Vilnius

 

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

with the secretary—Daiva Pitrėnaitė,

in a procedural Constitutional Court’s sitting, considered a petition (No. 1B-32/2012) of a group of Members of the Seimas of the Republic of Lithuania, the petitioner, requesting to investigate “whether:

  1. The regulation established in Paragraph 1 of Article 4 of the Law on the Liquefied Natural Gas Terminal (XI-2053, Official Gazette Valstybės žinios, 19/6/2012, No. 68-3466), under which ‘Upon the decision of either the Government or an institution authorised thereby, the project shall be implemented by the company implementing the project (hereinafter also referred to as the company), in which the state owns not less than 2/3 of shares giving the right to vote at a general meeting of shareholders of that company’, and the Resolution (No. 199) of the Government of the Republic of Lithuania ‘On the Installation of the Lithuanian Liquefied Natural Gas Terminal’ of 15 February 2012 (‘On the Implementation of the Republic of Lithuania Law on the Liquefied Natural Gas Terminal’) (Official Gazette Valstybės žinios, 2012, No. 25-1166; Official Gazette Valstybės žinios, 2012, No. 83-4387), whereby it is approved that ‘SC Klaipėdos Nafta, as the company implementing the project of the Liquefied Natural Gas Terminal, would implement the project of the Liquefied Natural Gas Terminal’ and under which the Government makes the principal decisions regarding the project of the Liquefied Natural Gas Terminal that are connected to the state loan and other essential property obligations assumed by the state, are not in conflict with the constitutional principle of a state under the rule of law, the constitutional principle of separation of powers, also Paragraph 2 of Article 5, Article 29, Paragraphs 1, 4 and 5 of Article 46 and Paragraph 1 of Article 128 of the Constitution.
  2. The regulation established in Paragraph 2 of Article 5 of the Law on the Liquefied Natural Gas Terminal (XI-2053, Official Gazette Valstybės žinios, 19/6/2012, No. 68-3466), under which ‘Costs (or part thereof) of installation and operation of the LNG terminal, its infrastructure and connector may, under the procedure and conditions established by the National Control Commission for Prices and Energy (hereinafter also referred to as the Commission), be included in the price of natural gas transmission service, by following the requirements for regulating energy prices as established in the Law on Energy, the Law on Natural Gas and other legal acts. The costs constituting the price of natural gas transmission service as well as the received income shall, under the procedure established by the Commission, be administered and compensated to the LNG Terminal operator by the natural gas transmission system operator (hereinafter also referred to as the transmission system operator)’, is not in conflict with the constitutional principle of a state under the rule of law, the constitutional principle of separation of powers, also Paragraph 2 of Article 5, Articles 23 and 29, Paragraphs 1, 4 and 5 of Article 46, Item 15 of Article 67 and Paragraphs 2 and 3 of Article 127 of the Constitution.
  3. The provision consolidated in Paragraphs 1, 2 and 3 of Article 11 of the Law on the Liquefied Natural Gas Terminal (XI-2053, Official Gazette Valstybės žinios, 19/6/2012, No. 68-3466), under which the volume of natural gas imported through the LNG Terminal and consumed in the internal natural gas market of the Republic of Lithuania must be not less than 25 percent of the total natural gas volume consumed in the Republic of Lithuania per year, is not in conflict with the constitutional principle of a state under the rule of law and Paragraph 2 of Article 5, Articles 23 and 29 and Paragraphs 1, 4 and 5 of Article 46 of the Constitution.
  4. The provision consolidated in Paragraph 2 of Article 11 of the Law on the Liquefied Natural Gas Terminal (XI-2053, Official Gazette Valstybės žinios, 19/6/2012, No. 68-3466), under which natural gas enterprises may not, on the grounds of agreements concluded after the entry into force of this law, be placed under an obligation to pay for the untaken natural gas volume imported through interconnectors and other natural gas pipelines of the transmission system (the so-called ‘take-or-pay’ obligation), is not in conflict with the constitutional principle of a state under the rule of law and Paragraph 2 of Article 5, Articles 23 and 29 and Paragraphs 1, 4 and 5 of Article 46 of the Constitution, to the extent that the limitation is prescribed solely with respect to the untaken natural gas volume imported through interconnectors and other natural gas pipelines of the transmission system.
  5. The provision consolidated in Paragraph 4 of Article 14 of the Law on the Liquefied Natural Gas Terminal (XI-2053, Official Gazette Valstybės žinios, 19/6/2012, No. 68-3466), under which the Government or an institution authorised thereby assesses, under the procedure and conditions established in legal acts, the issues of state aid and regulation of competition in the natural gas sector that are related to the implementation of this law and, if necessary, submits to the European Commission the information on the legal, administrative and/or organisational measures taken upon the decision of the state in the course of the implementation of the project and/or negotiates the said measures as well as the procedure and conditions for their application with the European Commission, is not in conflict with the constitutional principle of a state under the rule of law and Paragraph 4 of Article 46 of the Constitution.”

The Constitutional Court

has established:

In the operative part of its petition (No. 1B-32/2012), the group of Members of the Seimas, the petitioner, requests to investigate the compliance of the Law on the Liquefied Natural Gas Terminal (hereinafter also referred to as the Law) and the Government Resolution (No. 199) “On the Installation of the Liquefied Natural Gas Terminal” of 15 February 2012 (hereinafter also referred to as the Government resolution (No. 199) of 15 February 2012) with the Constitution of the Republic of Lithuania, and specifically as to whether:

– Paragraph 1 of Article 4 of the Law is not in conflict with Paragraph 2 of Article 5, Article 29, Paragraphs 1, 4 and 5 of Article 46 and Paragraph 1 of Article 128 of the Constitution and the constitutional principles of a state under the rule of law and separation of powers;

– Paragraph 2 of Article 5 of the Law is not in conflict with Paragraph 2 of Article 5, Articles 23 and 29, Paragraphs 1, 4 and 5 of Article 46, Item 15 of Article 67 and Paragraphs 2 and 3 of Article 127 of the Constitution and the constitutional principles of a state under the rule of law and separation of powers;

– the provision consolidated in Paragraphs 1, 2 and 3 of Article 11 of the Law, whereby the volume of natural gas imported through the Liquefied Natural Gas Terminal and consumed in the internal natural gas market of the Republic of Lithuania must be not less than 25 percent of the total natural gas volume consumed in the Republic of Lithuania per year, is not in conflict with Paragraph 2 of Article 5, Articles 23 and 29 and Paragraphs 1, 4 and 5 of Article 46 of the Constitution and the constitutional principle of a state under the rule of law;

– the provision of Paragraph 2 of Article 11 of the Law, whereby natural gas enterprises may not, on the grounds of agreements concluded after the entry into force of this law, be placed under an obligation to pay for the untaken natural gas volume imported through interconnectors and other natural gas pipelines of the transmission system (the so-called “take-or-pay” obligation), insofar as the limitation is prescribed solely with respect to the untaken natural gas volume imported through interconnectors and other natural gas pipelines of the transmission system, is not in conflict with Paragraph 2 of Article 5, Articles 23 and 29 and Paragraphs 1, 4 and 5 of Article 46 of the Constitution and the constitutional principle of a state under the rule of law;

– Paragraph 4 of Article 14 of the Law is not in conflict with Paragraph 4 of Article 46 of the Constitution and the constitutional principle of a state under the rule of law;

– the Government resolution (No. 199) of 15 February 2012, insofar as it is approved that SC Klaipėdos Nafta, as the company implementing the project of the Liquefied Natural Gas Terminal, would implement the project of the Liquefied Natural Gas Terminal, as well as insofar as “The Government shall make the principal decisions regarding the project of the Liquefied Natural Gas Terminal that are connected to the state loan and other essential property obligations assumed by the state”, is not in conflict with Paragraph 2 of Article 5, Article 29, Paragraphs 1, 4 and 5 of Article 46 and Paragraph 1 of Article 128 of the Constitution and the constitutional principles of a state under the rule of law and separation of powers.

The Constitutional Court

holds that:

I

  1. The group of Members of the Seimas, the petitioner, requests investigation into whether Paragraph 1 of Article 4, Paragraph 2 of Article 5, Paragraphs 1, 2 and 3 of Article 11 and Paragraph 4 of Article 14 of the Law as well as the Government resolution (No. 199) of 15 February 2012 are not in conflict with certain articles of the Constitution and certain constitutional principles.

The petition was submitted by the group of Members of the Seimas. Under Paragraphs 1 and 3 of Article 106 of the Constitution and Items 1 and 3 of Article 65 of the Law on the Constitutional Court of the Republic of Lithuania, a group of Members of the Seimas has the right to file a petition with the Constitutional Court requesting to investigate whether laws and acts of the Government are not in conflict with the Constitution (acts of the Government—also with laws). Under Paragraph 1 of Article 102, Paragraph 1 and Item 2 of Paragraph 2 of Article 105 of the Constitution and Items 1 and 3 of Paragraph 1 of Article 63 of the Law on the Constitutional Court, this petition falls within the jurisdiction of the Constitutional Court.

  1. Under Item 8 of Paragraph 1 of Article 66 of the Law on the Constitutional Court, a petition for the investigation of the compliance of a legal act with the Constitution, whereby one applies to the Constitutional Court, must contain the petitioner’s position concerning the compliance of an appropriate act with the Constitution and legal support of such a position containing reference to laws.

While construing the said item of the Law on the Constitutional Court, the Constitutional Court has held more than once that “the petitioner’s position concerning the compliance of a legal act (part thereof) with the Constitution in view of the content of norms and/or the extent of regulation must be indicated clearly and unambiguously, and the petition must contain the arguments and reasoning grounding the petitioner’s doubt that the legal act (part thereof) is in conflict with the Constitution. Thus, the petition requesting to investigate the compliance of a legal act (part thereof) with the Constitution in view of the content of norms and/or the extent of regulation must clearly indicate concrete articles (parts thereof), items of the legal act the compliance of which with the Constitution is doubtful from the petitioner’s viewpoint, also concrete provisions—norms and/or principles—of the Constitution with which, in the petitioner’s opinion, the concretely indicated articles or items of the impugned legal act are in conflict. The petition requesting to investigate the compliance of a legal act (part thereof) with the Constitution in view of the content of norms and/or the extent of regulation must also clearly set forth the legal reasoning grounding the petitioner’s doubt as regards every concretely indicated article (part thereof) or item of the impugned legal act (part thereof), the compliance of which with the concretely indicated provisions of the Constitution is doubtful to the petitioner. Otherwise, the request to investigate the compliance of a legal act (part thereof) with the Constitution in view of the content of norms and/or the extent of regulation must be considered to be not in line with the requirements of Article 66 of the Law on the Constitutional Court”.

It also needs to be noted that, if in the petition requesting to investigate the compliance of a legal act (part thereof) with the Constitution in view of the content of norms and/or the extent of regulation one does not indicate any concrete articles (parts thereof) or items of the legal act the compliance of which with the Constitution is doubtful to the petitioner, nor concrete provisions—norms and/or principles—of the Constitution with which, in the petitioner’s opinion, the concretely indicated articles (parts thereof) or items of the impugned legal act are in conflict in view of the content of norms and/or the extent of regulation, nor the legal reasoning grounding the petitioner’s doubt concerning each concretely indicated article (part thereof) or item of the impugned legal act (part thereof), the compliance of which with the concretely indicated provisions of the Constitution in view of the content of norms and/or the extent of regulation is doubtful to the petitioner, and if such a petition was accepted at the Constitutional Court and a case was commenced subsequent to it, one would also restrict the rights of the party concerned, the state institution that has passed the impugned legal act, since it would be more difficult for the party concerned to present explanations concerning the petitioner’s arguments and to prepare for the judicial consideration (the Constitutional Court’s decisions of 16 April 2004, 19 March 2010, 5 March 2012 and 25 April 2012).

  1. If a petition (part thereof) fails to comply with the requirements set forth in Article 66 of the Law on the Constitutional Court, under Article 70 of the Law on the Constitutional Court, such a petition is returned to the petitioner. The return of a petition shall not take away the right to apply to the Constitutional Court according to the common procedure after removal of the deficiencies thereof.

II

  1. The group of Members of the Seimas, the petitioner, requests to investigate inter alia whether Paragraph 1 of Article 4 of the Law is not in conflict with Paragraph 2 of Article 5, Article 29, Paragraphs 1, 4 and 5 of Article 46 and Paragraph 1 of Article 128 of the Constitution and the constitutional principles of a state under the rule of law and separation of powers.

On 12 June 2012, the Seimas adopted the Republic of Lithuania Law on the Liquefied Natural Gas Terminal, which came into force on 19 June 2012. That law has not been amended or supplemented. Thus, the petitioner impugns the compliance of the Law, as it is set forth in its initial wording of 12 June 2012, with the Constitution.

Paragraph 1 of Article 4 “Implementation of the Project” of the Law prescribes: “Upon the decision of either the Government or an institution authorised thereby, the project shall be implemented by the company implementing the project (hereinafter also referred to as the company), in which the state owns not less than 2/3 of shares giving the right to vote at a general meeting of shareholders of that company.”

1.1. The petitioner’s petition requesting investigation into whether Paragraph 1 of Article 4 of the Law is not in conflict with the Constitution is substantiated by the following arguments.

The petitioner maintains that, under Paragraph 1 of Article 4 of the Law, in order that the project of the Liquefied Natural Gas (hereinafter also referred to as LNG) Terminal may be implemented, a decision of the Government is necessary, as well as that, under the said paragraph, the project may be implemented only by a state-controlled enterprise chosen by the Government (or an institution authorised thereby), with the said enterprise being selected not through a competitive process, although there are (or may be) other companies wishing to construct and operate the LNG Terminal.

From the aforesaid petitioner’s arguments it is clear that the petitioner requests investigation into whether Paragraph 1 of Article 4 of the Law is not in conflict with Paragraph 1 of Article 46 of the Constitution, under which Lithuania’s economy is based on the right of private ownership, freedom of individual economic activity and initiative.

It needs to be held that the petition of the group of Members of the Seimas, the petitioner, requesting to investigate whether Paragraph 1 of Article 4 of the Law is not in conflict with Paragraph 1 of Article 46 of the Constitution is grounded on legal reasoning, therefore, this petition is acceptable for consideration at the Constitutional Court.

1.2. While expressing its doubts regarding the compliance of Paragraph 1 of Article 4 of the Law with Paragraph 1 of Article 46 of the Constitution, the petitioner maintains that the company chosen by the Government to implement the project of the LNG Terminal carries out works on the development of the infrastructure of the LNG Terminal as well as works on the installation of that terminal or ensures the implementation of the said works prior to connecting the said terminal to the natural gas transmission system and prior to beginning its operation, i.e. the said company is de facto granted the monopolistic rights to construct and operate the LNG Terminal.

The aforesaid petitioner’s arguments are contradictory: on the one hand, the petitioner maintains that the company chosen by the Government to implement the project of the LNG Terminal carries out works on the development of the infrastructure of the LNG Terminal as well as works on the installation of that terminal or ensures the implementation of the said works prior to connecting the said terminal to the natural gas transmission system and prior to beginning its operation, while, on the other hand, the petitioner draws the conclusion that the said company is granted the monopolistic rights to operate the LNG Terminal.

From the petitioner’s petition it is not clear whether or not, in the petitioner’s opinion, the fact that the provisions of the Law are designed to regulate the relations connected to constructing a concrete LNG Terminal means that other economic subjects (inter alia private ones) are in general forbidden from building inter alia other LNG Terminals in other places (the petitioner does not provide any references to concrete provisions of the Law forbidding other economic subjects (non-state-controlled enterprises) to build other LNG Terminals). Thus, the petitioner does not substantiate its doubts regarding the compliance of Paragraph 1 of Article 4 of the Law with Paragraph 1 of Article 46 of the Constitution.

1.3. While expressing its doubts concerning the compliance of Paragraph 1 of Article 4 of the Law with Article 29 of the Constitution, the petitioner maintains that “these provisions virtually establish the discriminatory conditions ensuring that only an enterprise chosen by the Government may implement the project of the LNG Terminal” as well as that “the project may be implemented only by such an enterprise that is chosen by the Government (i.e. even other state-owned enterprises would not be able to give any decision, as the Government controls 2/3 of shares giving the right to vote)”, however, in its petition the petitioner does not substantiate as to why amongst all the enterprises in which the state owns 2/3 of shares giving the right to vote at a general meeting of shareholders there are no differences and why these enterprises should, in all aspects, be treated equally.

The petitioner claims that “although the state owns 2/3 of shares in more than one enterprise, by Item 1 of Government resolution No. 199, SC Klaipėdos Nafta was assigned the project without any competitive process and without any objective grounding”, i.e. the petitioner substantiates its doubts concerning the compliance of Paragraph 1 of Article 4 of the Law with Article 29 of the Constitution by a factual situation, which occurred as a result of implementing a sub-statutory legal act (Government resolution) (neither Paragraph 1 of Article 4 of the Law, nor other provisions of the Law provide that the Government must “assign” or “choose” SC Klaipėdos Nafta as the company implementing the project of the LNG Terminal) and which, by itself, does not substantiate the petitioner’s doubts regarding the compliance of the impugned legal regulation with Article 29 of the Constitution.

Thus, the petitioner’s aforementioned statements of a general character do not substantiate its doubts regarding the compliance of Paragraph 1 of Article 4 of the Law with Article 29 of the Constitution.

1.4. The petitioner has not provided any arguments as regards the compliance of Paragraph 1 of Article 4 of the Law with Paragraph 2 of Article 5, Paragraph 5 of Article 46 and Paragraph 1 of Article 128 of the Constitution and the constitutional principles of a state under the rule of law and separation of powers.

  1. It has been mentioned that, under Item 8 of Paragraph 1 of Article 66 of the Law on the Constitutional Court, a petition requesting to investigate the compliance of a legal act (part thereof) with the Constitution in view of the content of norms and/or the extent of regulation must clearly set forth the legal reasoning grounding the petitioner’s doubt as regards every concretely indicated article (part thereof) or item of the impugned legal act (part thereof), the compliance of which with the concretely indicated provisions of the Constitution is doubtful to the petitioner. Otherwise, the request to investigate the compliance of a legal act (part thereof) with the Constitution in view of the content of norms and/or the extent of regulation must be considered to be not in line with the requirements of Article 66 of the Law on the Constitutional Court.
  2. It needs to be held that the petition of the group of Members of the Seimas, the petitioner, does not set forth any legal reasoning grounding the petitioner’s doubt as regards the conflict of Paragraph 1 of Article 4 of the Law with Paragraph 2 of Article 5, Article 29, Paragraphs 4 and 5 of Article 46 and Paragraph 1 of Article 128 of the Constitution and the constitutional principles of a state under the rule of law and separation of powers.

If a petition (part thereof) fails to comply with the requirements set forth in Article 66 of the Law on the Constitutional Court, under Article 70 of the Law on the Constitutional Court, such a petition is returned to the petitioner.

  1. Taking account of the arguments set forth, it needs to be held that there is a ground to return the petition of the group of Members of the Seimas, the petitioner, requesting to investigate whether Paragraph 1 of Article 4 of the Law is not in conflict with Paragraph 2 of Article 5, Article 29, Paragraphs 4 and 5 of Article 46 and Paragraph 1 of Article 128 of the Constitution and the constitutional principles of a state under the rule of law and separation of powers.

III

  1. The group of Members of the Seimas, the petitioner, requests to investigate inter alia whether Paragraph 2 of Article 5 of the Law is not in conflict with Paragraph 2 of Article 5, Articles 23 and 29, Paragraphs 1, 4 and 5 of Article 46, Item 15 of Article 67 and Paragraphs 2 and 3 of Article 127 of the Constitution and the constitutional principles of a state under the rule of law and separation of powers.

Paragraph 2 of Article 5 “Funding of the Project” of the Law prescribes: “Costs (or part thereof) of installation and operation of the LNG Terminal, its infrastructure and connector may, under the procedure and conditions established by the National Control Commission for Prices and Energy (hereinafter also referred to as the Commission), be included in the price of natural gas transmission service, by following the requirements for regulating energy prices as established in the Law on Energy, the Law on Natural Gas and other legal acts. The costs constituting the price of natural gas transmission service as well as the received income shall, under the procedure established by the Commission, be administered and compensated to the LNG Terminal operator by the natural gas transmission system operator (hereinafter also referred to as the transmission system operator).”

1.1. The petitioner’s petition requesting investigation into whether Paragraph 2 of Article 5 of the Law is not in conflict with the Constitution is substantiated by the following arguments.

The legal regulation established in Paragraph 2 of Article 5 of the Law, under which costs (or part thereof) of installation and operation of the LNG Terminal, its infrastructure and connector may be included in the price of natural gas transmission service (the so-called LNG Terminal-related extra tariff component), means that the property of payers of the LNG Terminal extra tariff component is taken for public needs. By means of such legal regulation, part of costs of the LNG Terminal is transferred onto all participants of the gas market, i.e. transmission system users. Due to the non-transparent and unclear establishment of the LNG Terminal-related extra tariff component, payers of that extra tariff component are under an obligation to pay an unreasonably high LNG Terminal-related extra tariff component. In this way, the property of payers of the LNG Terminal-related extra tariff component is virtually limited.

Paragraph 2 of Article 5 of the Law consolidates the duty of the transmission system operator to collect the LNG Terminal-related extra tariff component from natural gas consumers, to administer it and transfer it to the company implementing the project of the LNG Terminal. This means that the state’s function—to collect and administer and transfer the raised funds to the entity specified in the law is virtually prescribed for a private economic subject—transmission system operator. As a result of that, the transmission system operator incurs or may incur additional costs as well as the related risk (i.e., litigation against insolvent subjects, etc.). Paragraph 2 of Article 5 of the Law provides that only the costs (or part thereof) related to the installation and operation of the LNG Terminal, its infrastructure and connector are included in the transmission service tariff. However, Paragraph 2 of Article 5 of the Law does not provide for any costs incurred by the transmission system operator in relation to the commissioning to perform the aforesaid state’s function. In this way, Article 23 of the Constitution is violated.

The Constitutional Court has held more than once that, if a certain entity is commissioned to perform the state’s (public) function, one must provide for a mechanism for financing such a function. While construing Article 23 of the Constitution, the Constitutional Court has held that the inviolability and protection of ownership consolidated in that article also mean that one is not allowed to establish any such legal regulation whereby a constant duty is established for non-state ownership entities to use their property to discharge the state’s functions that ought to be financed with state funds.

From the aforesaid arguments of the petitioner’s petition it is clear that the petitioner requests investigation into whether Paragraph 2 of Article 5 of the Law is not in conflict with Article 23 of the Constitution.

It needs to be held that the petition of the group of Members of the Seimas, the petitioner, requesting to investigate whether Paragraph 2 of Article 5 of the Law is not in conflict with Article 23 of the Constitution is grounded on legal reasoning, therefore, this petition is acceptable for consideration at the Constitutional Court.

1.2. While expressing its doubts regarding the compliance of Paragraph 2 of Article 5 of the Law with the constitutional principle of a state under the rule of law, the petitioner maintains that the said paragraph provides that costs (or part thereof) of installation and operation of the LNG Terminal, its infrastructure and connector may, under the procedure and conditions established by the National Control Commission for Prices and Energy, be included in the price of natural gas transmission service, by following the requirements for regulating energy prices as established in the Law on Energy, the Law on Natural Gas and other legal acts, however, in the petitioner’s opinion, according to the requirements set in the Law on Energy and the Law on Natural Gas, the transmission system operator is allowed to include in transmission service costs only the costs that are related to transmission services. In the petitioner’s opinion, costs (or part thereof) of installation and operation of the LNG Terminal, its infrastructure and connector are not related to transmission services, nor does the transmission system operator provide any services to payers of the LNG Terminal-related extra tariff component.

Thus, the petitioner discerns a certain incompatibility of the impugned legal regulation established in the Law with the legal regulation consolidated in the Law on Energy and the Law on Natural Gas, i.e. the petitioner raises a question of compatibility of Paragraph 2 of Article 5 of the Law with provisions of legal acts of a lower power than that of the Constitution.

In this context it needs to be noted that, under the Constitution, the Constitutional Court, as it has held more than once, does not consider whether a law is in compliance with another law and does not decide any issues of compatibility and rivalry of legal acts of the same power.

Alongside, it needs to be noted that, while expressing its doubts regarding the compliance of Paragraph 2 of Article 5 of the Law with the constitutional principle of a state under the rule of law, the petitioner maintains that the legal regulation established in this paragraph does not make it clear as to which entity is in charge of making a decision that the LNG Terminal-related extra tariff component must be collected through the transmission system operator from payers of that extra tariff component, however, while expressing its doubts regarding the compliance of the same legal regulation, consolidated in Paragraph 2 of Article 5 of the Law, with Item 15 of Article 67 of the Constitution, the petitioner notes that Paragraph 2 of Article 5 of the Law entitles the National Control Commission for Prices and Energy to establish, by means of sub-statutory legal acts, all essential elements of the LNG Terminal-related extra tariff component as a tax (compulsory payment). Thus, the petitioner’s arguments as regards the compliance of the impugned Paragraph 2 of Article 5 of the Law with the constitutional principle of a state under the rule of law are inconsistent and contradictory.

While expressing its doubts regarding the compliance of Paragraph 2 of Article 5 of the Law with Paragraphs 1, 4 and 5 of Article 46 of the Constitution and the constitutional principle of a state under the rule of law, the petitioner maintains that costs (or part thereof) of installation and operation of the LNG Terminal, its infrastructure and connector must be covered by all participants of the gas market (transmission system users), regardless of the fact whether they will make use of the LNG Terminal services or not, also that the LNG Terminal-related extra tariff component covering the aforesaid costs (or part thereof) is collected and, in accordance with the procedure set by legal acts, transferred by the transmission system operator assigned by the law to the company implementing the project of the LNG Terminal, which, as a result of such legal regulation, gains an exceptional economic benefit and distorts competition.

The petitioner does not explain what exceptional economic benefit is gained by the company implementing the project of the LNG Terminal. The impugned norm of the Law does not specify any exceptional rights of the company implementing the project of the LNG Terminal, and the petitioner does not point to any other provisions of the Law, either.

The petitioner’s statements that “The scheme for establishing and paying the LNG Terminal-related extra tariff component should have been agreed with the European Commission in advance and the permission thereof should have been obtained”, also that “the adoption of Paragraph 2 of Article 5 of the Law in the absence of such a permission from the European Commission is possibly in conflict with Article 107 of the Treaty on EU (ex Article 87 of the Treaty on EC) as well as with the constitutional principle of a state under the rule of law and Paragraphs 1, 4 and 5 of Article 46 of the Constitution”, do not substantiate the petitioner’s doubts regarding the compliance of Paragraph 2 of Article 5 of the Law with Paragraphs 1, 4 and 5 of Article 46 of the Constitution and the constitutional principle of a state under the rule of law.

While expressing its doubts regarding the compliance of Paragraph 2 of Article 5 of the Law with Item 15 of Article 67 and Paragraph 3 of Article 127 of the Constitution, the petitioner maintains that the LNG Terminal-related extra tariff component is such a proprietary obligation established for payers thereof that, according to its nature and contents, constitutes a compulsory payment referred to Item 15 of Article 67 of the Constitution. In the petitioner’s opinion, the LNG Terminal-related extra tariff component, in principle, meets the criteria for taxes or compulsory payments levied by the state: the law sets the obligation to pay the LNG Terminal-related extra tariff component, i.e. a monetary liability; the obligation to pay the LNG Terminal-related extra tariff component is universally compulsory; and the payment of the LNG Terminal-related extra tariff component is not related to the provision of certain services for the payer of the LNG Terminal-related extra tariff component. The fact that costs (or part thereof) of installation and operation of the LNG Terminal, its infrastructure and connector may be included in the price of natural gas transmission service, in the petitioner’s opinion, means that all subjects of the gas market will have to pay for the construction and operation of the LNG Terminal, irrespective of whether or not they will make use of the LNG Terminal services.

Thus, the petitioner acknowledges that the LNG Terminal-related extra tariff component is established for services of the future LNG Terminal, however, in the petitioner’s opinion, not all natural gas consumers will make use of the said services. In this context it needs to be noted that, while impugning in its petition Article 11 of the Law, which, according to the petitioner, consolidates the duty of natural gas enterprises to buy at least 25 percent of natural gas from the LNG Terminal, the petitioner recognises that all natural gas consumers who pay for the transmission service will, to a certain extent, make use of the LNG Terminal services, i.e. the petitioner denies its statement that not all natural gas consumers will make use of the LNG Terminal services. The petitioner’s aforementioned statements, by which the petitioner, on the one hand, maintains that the so-called LNG Terminal-related extra tariff component, consolidated in Paragraph 2 of Article 5 of the Law, is a tax or some other compulsory payment not related to the provision of certain services, and by which, on the other hand, it acknowledges that the LNG Terminal-related extra tariff component is established specifically for the LNG Terminal services, which will be used by all natural gas consumers, are inconsistent and contradictory, therefore, they do not substantiate the petitioner’s doubts regarding the compliance of Paragraph 2 of Article 5 of the Law with Item 15 of Article 67 and Paragraph 3 of Article 127 of the Constitution.

While doubting the compliance of Paragraph 2 of Article 5 of the Law with Paragraph 2 of Article 5 of the Constitution and the constitutional principle of separation of powers, the petitioner maintains that Paragraph 2 of Article 5 of the Law gives the National Control Commission for Prices and Energy the right to establish, by means of sub-statutory legal acts, the essential elements of the LNG Terminal-related extra tariff component as a tax (compulsory payment) (inter alia the right to define payers of the LNG Terminal-related extra tariff component), i.e. de facto to discharge the powers of the Seimas specified in Item 15 of Article 67 of the Constitution. Thus, the petitioner substantiates its doubts by elucidating that the so-called LNG Terminal-related extra tariff component consolidated in Paragraph 2 of Article 5 of the Law is a tax or some other compulsory payment, as established in Item 15 of Article 67 of the Constitution.

Having held in this Constitutional Court’s decision that the petitioner does not substantiate its doubts regarding the compliance of Paragraph 2 of Article 5 of the Law with Item 15 of Article 67 and Paragraph 3 of Article 127 of the Constitution, it also needs to be held that the petitioner does not substantiate its doubts regarding the compliance of Paragraph 2 of Article 5 of the Law with Paragraph 2 of Article 5 of the Constitution and the constitutional principle of a state under the rule of law, either.

Alongside, it needs to be noted that the petitioner does not provide any arguments as regards the compliance of Paragraph 2 of Article 5 of the Law with Article 29 and Paragraph 2 of Article 127 of the Constitution.

  1. It has been mentioned that, under Item 8 of Paragraph 1 of Article 66 of the Law on the Constitutional Court, a petition requesting to investigate the compliance of a legal act (part thereof) with the Constitution in view of the content of norms and/or the extent of regulation must clearly set forth the legal reasoning grounding the petitioner’s doubt as regards every concretely indicated article (part thereof) or item of the impugned legal act (part thereof), the compliance of which with the concretely indicated provisions of the Constitution is doubtful to the petitioner. Otherwise, the request to investigate the compliance of a legal act (part thereof) with the Constitution in view of the content of norms and/or the extent of regulation must be considered to be not in line with the requirements of Article 66 of the Law on the Constitutional Court.
  2. It needs to be held that the petition of the group of Members of the Seimas, the petitioner, does not set forth any legal reasoning grounding the petitioner’s doubt as regards the conflict of Paragraph 2 of Article 5 of the Law with Paragraph 2 of Article 5, Article 29, Paragraphs 1, 4 and 5 of Article 46, Item 15 of Article 67 and Paragraphs 2 and 3 Article 127 of the Constitution and the constitutional principles of a state under the rule of law and separation of powers.

If a petition (part thereof) fails to comply with the requirements set in Article 66 of the Law on the Constitutional Court, under Article 70 of the Law on the Constitutional Court, such a petition is returned to the petitioner.

  1. Taking account of the arguments set forth, it needs to be held that there is a ground to return the petition of the group of Members of the Seimas, the petitioner, requesting to investigate whether Paragraph 2 of Article 5 of the Law is not in conflict with Paragraph 2 of Article 5, Article 29, Paragraphs 1, 4 and 5 of Article 46, Item 15 of Article 67 and Paragraphs 2 and 3 Article 127 of the Constitution and the constitutional principles of a state under the rule of law and separation of powers.

IV

  1. The group of Members of the Seimas, the petitioner, requests to investigate inter alia whether Paragraphs 1, 2 and 3 of Article 11 of the Law are not in conflict with Paragraph 2 of Article 5, Articles 23 and 29, Paragraphs 1, 4 and 5 of Article 46 of the Constitution and the constitutional principle of a state under the rule of law.

Paragraphs 1–3 of Article 11 “Trade in Natural Gas” of the Law prescribe:

“1. In order to ensure the essential activities of the LNG Terminal, i.e. the technological capacity of the LNG Terminal, which is necessary for the constant and efficient satisfaction of natural gas demand in the Republic of Lithuania, also in order to guarantee the technologically and economically justified operation of the LNG Terminal and to encourage the effective competitiveness among diversified sources of natural gas supply, the volume of natural gas imported through the LNG Terminal and consumed in the internal natural gas market of the Republic of Lithuania must account for not less than 25 percent of the total natural gas volume consumed in the Republic of Lithuania per year.

  1. Natural gas enterprises importing natural gas into the Republic of Lithuania through interconnectors and other natural gas pipelines of the transmission system must purchase through the LNG Terminal and through interconnectors and other natural gas pipelines of the transmission system (through each of the said ways separately) at least such percentage share of the total natural gas volume supplied by such an enterprise into the natural gas system per year that is set in Paragraph 1 of this Article. The Government shall establish the procedure for implementing the said obligation, by taking account of the principles of legitimate expectations, proportionality and reconciliation of the public interest with private interests. The aforesaid natural gas enterprises may not, on the grounds of agreements concluded after the entry into force of this Law, be placed under an obligation to pay for the untaken natural gas volume imported through interconnectors and other natural gas pipelines of the transmission system (the so-called ‘take-or-pay’ obligation).
  2. The Commission shall set the price cap on the natural gas imported through the LNG Terminal and consumed in the internal natural gas market of the Republic of Lithuania, the volume of which must account for not less than 25 percent of the total natural gas volume consumed in the Republic of Lithuania per year. The Commission shall approve the methodology for calculating the price cap for the said natural gas.”

1.1. The petitioner’s petition requesting investigation into whether Paragraphs 1, 2 and 3 of Article 11 of the Law are not in conflict with the Constitution is substantiated by the following arguments.

Article 11 of the Law establishes the duty for natural gas enterprises to purchase at least 25 percent of the gas imported through the LNG Terminal, without taking account of the terms and economic reasonableness of such purchase. That means that participants of the natural gas market may, for an unlimited time period, be obliged to purchase gas for a higher price than they could purchase the required volume of natural gas imported through interconnectors and other pipelines. In this way, the funds (at least those allotted to pay for natural gas that has risen in price) of participants of the natural gas market are expropriated, while granting an exceptional advantage to the LNG Terminal operator and gas suppliers providing gas through that terminal. Such legal regulation is not in line with the imperatives stemming from Article 23 of the Constitution.

From the aforesaid petitioner’s arguments it is clear that the petitioner requests to investigate the compliance of Paragraphs 1, 2 and 3 of Article 11 of the Law not with all the provisions of Article 23 of the Constitution, whereas only with Paragraph 1 of Article 23 thereof.

While substantiating its doubts regarding the compliance of Paragraphs 1, 2 and 3 of Article 11 of the Law with Paragraphs 1 and 4 of Article 46 of the Constitution, the petitioner maintains that the said paragraphs of Article 11 of the Law prescribe a completely unreasonable and disproportionate obligation for certain economic subjects to buy a fixed quantity of goods (at least 25 percent of natural gas) from another economic subject. In the petitioner’s opinion, there are no objective and transparent grounds for such an obligation.

The obligation imposed on consumers in Article 11 of the Law to buy at least 25 percent of the consumed gas from the LNG Terminal obviously restricts the consumer’s freedom of choice and, thus, violates Paragraph 5 of Article 46 of the Constitution, which stipulates that the state defends the interests of the consumer.

From the aforesaid petitioner’s arguments it is clear that the petitioner requests investigation into whether Paragraphs 1, 2 and 3 of Article 11 of the Law, insofar as natural gas enterprises importing natural gas into the Republic of Lithuania through interconnectors and other natural gas pipelines of the transmission system are placed under the obligation to purchase through the LNG Terminal not less than 25 percent of the total natural gas volume that such an enterprise supplies to the natural gas system per year, are not in conflict with Paragraph 1 of Article 23 and Paragraphs 1, 4 and 5 of Article 46 of the Constitution.

It needs to be held that the petition of the group of Members of the Seimas, the petitioner, requesting to investigate whether Paragraphs 1, 2 and 3 of Article 11 of the Law, insofar as natural gas enterprises importing natural gas into the Republic of Lithuania through interconnectors and other natural gas pipelines of the transmission system are placed under the obligation to purchase through the LNG Terminal not less than 25 percent of the total natural gas volume that such an enterprise supplies to the natural gas system per year, are not in conflict with Paragraph 1 of Article 23 and Paragraphs 1, 4 and 5 of Article 46 of the Constitution, is grounded on legal reasoning, therefore, this petition is acceptable for consideration at the Constitutional Court.

1.2. The petitioner requests investigation into whether Paragraphs 1, 2 and 3 of Article 11 of the Law are not in conflict with inter alia Paragraph 2 of Article 5 and Article 29 of the Constitution and the constitutional principle of a state under the rule of law, however, the petitioner does not provide any arguments as to why, in its opinion, Paragraphs 1, 2 and 3 of Article 11 of the Law are in conflict with the aforementioned provisions of the Constitution.

  1. It has been mentioned that, under Item 8 of Paragraph 1 of Article 66 of the Law on the Constitutional Court, a petition requesting to investigate the compliance of a legal act (part thereof) with the Constitution in view of the content of norms and/or the extent of regulation must clearly set forth the legal reasoning grounding the petitioner’s doubt as regards every concretely indicated article (part thereof) or item of the impugned legal act (part thereof), the compliance of which with the concretely indicated provisions of the Constitution is doubtful to the petitioner. Otherwise, the request to investigate the compliance of a legal act (part thereof) with the Constitution in view of the content of norms and/or the extent of regulation must be considered to be not in line with the requirements of Article 66 of the Law on the Constitutional Court.
  2. It needs to be held that the petition of the group of Members of the Seimas, the petitioner, does not set forth any legal reasoning grounding the petitioner’s doubt as regards the conflict of Paragraphs 1, 2 and 3 of Article 11 of the Law with Paragraph 2 of Article 5 and Article 29 of the Constitution and the constitutional principle of a state under the rule of law.

If a petition (part thereof) fails to comply with the requirements set forth in Article 66 of the Law on the Constitutional Court, under Article 70 of the Law on the Constitutional Court, such a petition is returned to the petitioner.

  1. Taking account of the arguments set forth, it needs to be held that there is a ground to return the petition of the group of Members of the Seimas, the petitioner, requesting to investigate whether Paragraphs 1, 2 and 3 of Article 11 of the Law are not in conflict with Paragraph 2 of Article 5 and Article 29 of the Constitution and the constitutional principle of a state under the rule of law.

V

  1. The group of Members of the Seimas, the petitioner, requests to investigate inter alia whether the provision “The aforesaid natural gas enterprises may not, on the grounds of agreements concluded after the entry into force of this Law, be placed under an obligation to pay for the untaken natural gas volume imported through interconnectors and other natural gas pipelines of the transmission system (the so-called ‘take-or-pay’ obligation)” of Paragraph 2 of Article 11 of the Law, insofar as the limitation is prescribed solely with respect to the untaken natural gas volume imported through interconnectors and other natural gas pipelines of the transmission system, is not in conflict with Paragraph 2 of Article 5, Articles 23 and 29 and Paragraphs 1, 4 and 5 of Article 46 of the Constitution and the constitutional principle of a state under the rule of law.

Paragraph 2 of Article 11 of the Law prescribes: “Natural gas enterprises importing natural gas into the Republic of Lithuania through interconnectors and other natural gas pipelines of the transmission system must purchase through the LNG Terminal and through interconnectors and other natural gas pipelines of the transmission system (through each of the said ways separately) at least such percentage share of the total natural gas volume supplied by such an enterprise into the natural gas system per year that is set in Paragraph 1 of this Article. The Government shall establish the procedure for implementing the said obligation, by taking account of the principles of legitimate expectations, proportionality and reconciliation of the public interest with private interests. The aforesaid natural gas enterprises may not, on the grounds of agreements concluded after the entry into force of this Law, be placed under an obligation to pay for the untaken natural gas volume imported through interconnectors and other natural gas pipelines of the transmission system (the so-called ‘take-or-pay’ obligation).”

1.1. The petitioner’s petition requesting investigation into whether the aforementioned provision of Paragraph 2 of Article 11 of the Law is not, to the corresponding extent, in conflict with the Constitution, is substantiated by the following arguments.

The obligation established in Paragraph 2 of Article 11 of the Law is not applied only when paying for the untaken natural gas volume imported through interconnectors and other natural gas pipelines of the transmission system, however, it is applied when paying for the untaken natural gas volume imported through the LNG Terminal. The same “buy-or-pay” condition, which is common in the natural gas supply market, is assessed in a different way with respect to a gas supply infrastructure. In this way, different natural gas supply conditions are created and the principles of equal rights, economic freedom and assurance of fair competition are violated.

From the petitioner’s aforesaid arguments it is clear that the petitioner requests investigation into whether the provision “The aforesaid natural gas enterprises may not, on the grounds of agreements concluded after the entry into force of this Law, be placed under an obligation to pay for the untaken natural gas volume imported through interconnectors and other natural gas pipelines of the transmission system (the so-called ‘take-or-pay’ obligation)” of Paragraph 2 of Article 11 of the Law, insofar as the obligation referred to therein may not be applied only when paying for the untaken natural gas volume imported through interconnectors and other natural gas pipelines of the transmission system, however it is applied when paying for the untaken natural gas volume imported through the LNG Terminal, is not in conflict with Paragraph 1 of Article 29 and Paragraphs 1 and 4 of Article 46 of the Constitution.

It needs to be held that the petition of the group of Members of the Seimas, the petitioner, requesting to investigate whether the provision “The aforesaid natural gas enterprises may not, on the grounds of agreements concluded after the entry into force of this Law, be placed under an obligation to pay for the untaken natural gas volume imported through interconnectors and other natural gas pipelines of the transmission system (the so-called ‘take-or-pay’ obligation)” of Paragraph 2 of Article 11 of the Law, insofar as the obligation referred to therein may not be applied only when paying for the untaken natural gas volume imported through interconnectors and other natural gas pipelines of the transmission system, however it is applied when paying for the untaken natural gas volume imported through the LNG Terminal, is not in conflict with Paragraph 1 of Article 29 and Paragraphs 1 and 4 of Article 46 of the Constitution, is grounded on legal reasoning, therefore, this petition is acceptable for consideration at the Constitutional Court.

1.2. The petitioner requests investigation into whether the provision “The aforesaid natural gas enterprises may not, on the grounds of agreements concluded after the entry into force of this Law, be placed under an obligation to pay for the untaken natural gas volume imported through interconnectors and other natural gas pipelines of the transmission system (the so-called ‘take-or-pay’ obligation)” of Paragraph 2 of Article 11 of the Law, insofar as the limitation is prescribed solely with respect to the untaken natural gas volume imported through interconnectors and other natural gas pipelines of the transmission system, is not in conflict with inter alia Paragraph 2 of Article 5, Article 23 and Paragraph 5 of Article 46 of the Constitution and the constitutional principle of a state under the rule of law, however, the petitioner does not provide any arguments as to why, in its opinion, that provision of Paragraph 2 of Article 11 of the Law (to the specified extent) is in conflict with the aforementioned provisions of the Constitution.

  1. It has been mentioned that, under Item 8 of Paragraph 1 of Article 66 of the Law on the Constitutional Court, a petition requesting to investigate the compliance of a legal act (part thereof) with the Constitution in view of the content of norms and/or the extent of regulation must clearly set forth the legal reasoning grounding the petitioner’s doubt as regards every concretely indicated article (part thereof) or item of the impugned legal act (part thereof), the compliance of which with the concretely indicated provisions of the Constitution is doubtful to the petitioner. Otherwise, the request to investigate the compliance of a legal act (part thereof) with the Constitution in view of the content of norms and/or the extent of regulation must be considered to be not in line with the requirements of Article 66 of the Law on the Constitutional Court.
  2. It needs to be held that the petition of the group of Members of the Seimas, the petitioner, does not contain any legal reasoning grounding the petitioner’s doubt as regards the conflict of the provision “The aforesaid natural gas enterprises may not, on the grounds of agreements concluded after the entry into force of this Law, be placed under an obligation to pay for the untaken natural gas volume imported through interconnectors and other natural gas pipelines of the transmission system (the so-called ‘take-or-pay’ obligation)” of Paragraph 2 of Article 11 of the Law, insofar as the limitation is prescribed solely with respect to the untaken natural gas volume imported through interconnectors and other natural gas pipelines of the transmission system, with Paragraph 2 of Article 5, Article 23 and Paragraph 5 of Article 46 of the Constitution and the constitutional principle of a state under the rule of law.

If a petition (part thereof) fails to comply with the requirements set forth in Article 66 of the Law on the Constitutional Court, under Article 70 of the Law on the Constitutional Court, such a petition is returned to the petitioner.

  1. Taking account of the arguments set forth, it needs to be held that there is a ground to return the petition of the group of Members of the Seimas, the petitioner, requesting to investigate whether the provision “The aforesaid natural gas enterprises may not, on the grounds of agreements concluded after the entry into force of this Law, be placed under an obligation to pay for the untaken natural gas volume imported through interconnectors and other natural gas pipelines of the transmission system (the so-called ‘take-or-pay’ obligation)” of Paragraph 2 of Article 11 of the Law, insofar as the limitation is prescribed solely with respect to the untaken natural gas volume imported through interconnectors and other natural gas pipelines of the transmission system, is not in conflict with Paragraph 2 of Article 5, Article 23 and Paragraph 5 of Article 46 of the Constitution and the constitutional principle of a state under the rule of law.

VI

  1. The group of Members of the Seimas, the petitioner, requests to investigate inter alia whether Paragraph 4 of Article 14 of the Law is not in conflict with Paragraph 4 of Article 46 of the Constitution and the constitutional principle of a state under the rule of law.

Paragraph 4 of Article 14 “Implementation of the Law” of the Law prescribes: “The Government or an institution authorised thereby shall, under the procedure and conditions established in legal acts, assess the issues of state aid and regulation of competition in the natural gas sector that are related to the implementation of this Law and, if necessary, shall submit to the European Commission the information on the legal, administrative and/or organisational measures taken upon the decision of the state in the course of the implementation of the project and/or shall negotiate the said measures as well as the procedure and conditions for their application with the European Commission.”

While expressing its doubts regarding the compliance of Paragraph 4 of Article 14 of the Law with the Constitution, the petitioner maintains that the aforesaid provision of the Law gives the state institutions the right to negotiate state aid measures with the European Commission after that aid has been provided, while, under the legal acts of the European Union, the state aid scheme must be agreed with the European Commission and the permission thereof must be obtained in advance, i.e. prior to adopting respective legal acts.

The petitioner does not provide any legal reasoning as regards the compliance of Paragraph 4 of Article 14 of the Law with Paragraph 4 of Article 46 of the Constitution and the constitutional principle of a state under the rule of law, but it only notes that, in its opinion, “the provision of Paragraph 4 of Article 14 of the Law, which provides for a different procedure for notifying the Commission of the granting of state aid, is possibly in conflict not only with the provisions of Articles 107 and 108 of the EU Treaty and Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty, but also with the constitutional principle of a state under the rule of law, Article 29 of the Constitution as well as Paragraph 4 of Article 46 of the Constitution, which provides for the freedom of fair competition”.

It needs to be noted that the provision of the official constitutional doctrine referred to by the petitioner, under which the Constitution expressis verbis stipulates the collision rule consolidating the priority of application of European Union legal acts in the cases where the European Union legal provisions arising from the founding Treaties of the European Union compete with the legal regulation established in Lithuanian national legal acts (regardless of what their legal power is), save the Constitution itself, elucidates which legal act—European Union or national legal act—must be given priority of application in the event of collision, however, it does not substantiate the petitioner’s doubt regarding the conflict of the legal regulation established in Paragraph 4 of Article 14 of the Law with Paragraph 4 of Article 46 of the Constitution and the constitutional principle of a state under the rule of law.

Alongside, it needs to be noted that the operative part of the petitioner’s petition contains no reference to Article 29 of the Constitution, which is indicated in the petition by the petitioner while impugning Paragraph 4 of Article 14 of the Law. Since the petitioner does not provide any arguments as regards the compliance of Paragraph 4 of Article 14 of the Law with Article 29 of the Constitution either, it needs to be held that the petitioner does not impugn the compliance of Paragraph 4 of Article 14 of the Law with Article 29 of the Constitution.

  1. It has been mentioned that, under Item 8 of Paragraph 1 of Article 66 of the Law on the Constitutional Court, a petition requesting to investigate the compliance of a legal act (part thereof) with the Constitution in view of the content of norms and/or the extent of regulation must clearly set forth the legal reasoning grounding the petitioner’s doubt as regards every concretely indicated article (part thereof) or item of the impugned legal act (part thereof), the compliance of which with the concretely indicated provisions of the Constitution is doubtful to the petitioner. Otherwise, the request to investigate the compliance of a legal act (part thereof) with the Constitution in view of the content of norms and/or the extent of regulation must be considered to be not in line with the requirements of Article 66 of the Law on the Constitutional Court.
  2. It needs to be held that the petition of the group of Members of the Seimas, the petitioner, does not set forth any legal reasoning grounding the petitioner’s doubt regarding the conflict of Paragraph 4 of Article 14 of the Law with Paragraph 4 of Article 46 of the Constitution and the constitutional principle of a state under the rule of law.

If a petition (part thereof) fails to comply with the requirements set forth in Article 66 of the Law on the Constitutional Court, under Article 70 of the Law on the Constitutional Court, such a petition is returned to the petitioner.

  1. Taking account of the arguments set forth, it needs to be held that there is a ground to return the petition of the group of Members of the Seimas, the petitioner, requesting to investigate whether Paragraph 4 of Article 14 of the Law is not in conflict with Paragraph 4 of Article 46 of the Constitution and the constitutional principle of a state under the rule of law.

VII

  1. The group of Members of the Seimas, the petitioner, requests to investigate inter alia whether the Government resolution (No. 199) of 15 February 2012, inter alia insofar as it is thereby approved that SC Klaipėdos Nafta, as the company implementing the project of the Liquefied Natural Gas Terminal, would implement the project of the Liquefied Natural Gas Terminal, is not in conflict with Paragraph 2 of Article 5, Article 29, Paragraphs 1, 4 and 5 of Article 46 and Paragraph 1 of Article 128 of the Constitution and the constitutional principles of a state under the rule of law and separation of powers.

1.1. On 15 February 2012, the Government adopted the Resolution (No. 199) “On the Installation of the Liquefied Natural Gas Terminal”, which came into force on 29 February 2012.

By the Government Resolution (No. 864) “On Amending the Resolution (No. 199) of the Government of the Republic of Lithuania ‘On the Installation of the Liquefied Natural Gas Terminal’ of 15 February 2012” of 11 July 2012, the Government resolution (No. 199) of 15 February 2012 was amended and set forth in a new wording, inter alia the title of the Government resolution was amended—it was titled “On the Implementation of the Law on the Liquefied Natural Gas Terminal of the Republic of Lithuania”.

In its petition the petitioner does not expressis verbis indicate as to the compliance of which wording of the Government resolution (No. 199) of 15 February 2012 with the Constitution is impugned, however, from the petitioner’s petition and the duplicates of the Official Gazette Valstybės žinios supplemented thereto it is clear that the petitioner impugns the Government resolution (No. 199) of 15 February 2012 as set forth in the wording of 11 July 2012.

1.2. Item 1 of the Government resolution (No. 199) of 15 February 2012 (wording of 11 July 2012) prescribes: “To approve that the stock company “Klaipėdos Nafta”, as the company implementing the project of the Liquefied Natural Gas Terminal, would implement the project of the Liquefied Natural Gas Terminal.”

From the entirety of the petitioner’s petition it is clear that the compliance of the Government resolution (No. 199) of 15 February 2012 (wording of 11 July 2012) with the Constitution is impugned due to the fact that the Government is implementing the provisions of the Law, which, in the opinion of the petitioner, are not in line with the Constitution, either.

From the preamble to the Government resolution (No. 199) of 15 February 2012 (wording of 11 July 2012) it is clear that that Government resolution is designed to implement inter alia Paragraph 1 of Article 4 of the Law, which, as mentioned before, provides that, upon the decision of either the Government or an institution authorised thereby, the project is implemented by the company implementing the project, in which the state owns not less than 2/3 of shares giving the right to vote at a general meeting of shareholders of that company. The petitioner’s doubts regarding the compliance of the Government resolution (No. 199) of 15 February 2012 (to the specified extent) with the Constitution are substantiated by the same arguments as the petitioner’s doubts regarding Paragraph 1 of Article 4 of the Law.

In this Constitutional Court’s decision it has been held that the petition of the group of Members of the Seimas, the petitioner, requesting to investigate whether Paragraph 1 of Article 4 of the Law is not in conflict with Paragraph 1 of Article 46 of the Constitution is grounded on legal reasoning, therefore, this petition is acceptable for consideration at the Constitutional Court.

After having held that, it also needs to be held that the petition of the group of Members of the Seimas, the petitioner, requesting to investigate whether the Government resolution (No. 199) of 15 February 2012, insofar as it is thereby approved that SC Klaipėdos Nafta, as the company implementing the project of the Liquefied Natural Gas Terminal, would implement the project of the Liquefied Natural Gas Terminal, is not in conflict with Paragraph 1 of Article 46 of the Constitution, is grounded on legal reasoning, therefore, this petition is acceptable for consideration at the Constitutional Court.

In this Constitutional Court’s decision it has been held that the petition of the group of Members of the Seimas, the petitioner, does not set forth any legal reasoning grounding the petitioner’s doubt regarding the conflict of Paragraph 1 of Article 4 of the Law with Paragraph 2 of Article 5, Article 29, Paragraphs 4 and 5 of Article 46 and Paragraph 1 of Article 128 of the Constitution and the constitutional principles of a state under the rule of law and separation of powers, therefore, there is a ground to return this petition to the petitioner.

After having held that, it also needs to be held that the petition of the group of Members of the Seimas, the petitioner, does not contain any legal reasoning grounding the petitioner’s doubt regarding the conflict of the Government resolution (No. 199) of 15 February 2012 (wording of 11 July 2012), insofar as it is thereby approved that SC Klaipėdos Nafta, as the company implementing the project of the Liquefied Natural Gas Terminal, would implement the project of the Liquefied Natural Gas Terminal, with Paragraph 2 of Article 5, Article 29, Paragraphs 4 and 5 of Article 46 and Paragraph 1 of Article 128 of the Constitution and the constitutional principles of a state under the rule of law and separation of powers, therefore, there is a ground to return this petition to the petitioner.

  1. The group of Members of the Seimas, the petitioner, requests to investigate inter alia whether the Government resolution (No. 199) of 15 February 2012, inter alia insofar as, pursuant to it, “The Government shall make the principal decisions regarding the project of the Liquefied Natural Gas Terminal that are connected to the state loan and other essential property obligations assumed by the state”, is not in conflict with Paragraph 2 of Article 5, Article 29, Paragraphs 1, 4 and 5 of Article 46 and Paragraph 1 of Article 128 of the Constitution and the constitutional principles of a state under the rule of law and separation of powers.

2.1. The petitioner maintains that, “pursuant to Government resolution No. 199, the Government makes the principal decisions regarding the project of the Liquefied Natural Gas Terminal that are connected to the state loan and other essential property obligations assumed by the state”, however, the petitioner does not indicate any concrete decisions that, according to the petitioner, were made by the Government in relation to the state loan and other essential property obligations assumed by the state. The petitioner maintains that “in other items of Government resolution No. 199 the Government adopts the principal decisions regarding the project of the Liquefied Natural Gas Terminal that are connected to the state loan and other essential property obligations assumed by the state”, however, the petitioner does not concretely indicate any items of the impugned Government resolution in which the said fact is consolidated.

Neither does the petitioner provide any legal arguments as regards the compliance of the Government resolution (No. 199) of 15 February 2012, insofar as, pursuant to it, “The Government shall make the principal decisions regarding the project of the Liquefied Natural Gas Terminal that are connected to the state loan and other essential property obligations assumed by the state”, with any of the articles of the Constitution referred to by the petitioner: Paragraph 2 of Article 5, Article 29, Paragraphs 1, 4 and 5 of Article 46 and Paragraph 1 of Article 128 of the Constitution and the constitutional principles of a state under the rule of law and separation of powers.

2.2. It has been mentioned that, under Item 8 of Paragraph 1 of Article 66 of the Law on the Constitutional Court, a petition requesting to investigate the compliance of a legal act (part thereof) with the Constitution in view of the content of norms and/or the extent of regulation must clearly set forth the legal reasoning grounding the petitioner’s doubt as regards every concretely indicated article (part thereof) or item of the impugned legal act (part thereof), the compliance of which with the concretely indicated provisions of the Constitution is doubtful to the petitioner. Otherwise, the request to investigate the compliance of a legal act (part thereof) with the Constitution in view of the content of norms and/or the extent of regulation must be considered to be not in line with the requirements of Article 66 of the Law on the Constitutional Court.

2.3. It needs to be held that the petition of the group of Members of the Seimas, the petitioner, does not set forth any legal reasoning grounding the petitioner’s doubt regarding the compliance of the Government resolution (No. 199) of 15 February 2012, insofar as, pursuant to it, “The Government shall make the principal decisions regarding the project of the Liquefied Natural Gas Terminal that are connected to the state loan and other essential property obligations assumed by the state”, with Paragraph 2 of Article 5, Article 29, Paragraphs 1, 4 and 5 of Article 46 and Paragraph 1 of Article 128 of the Constitution and the constitutional principles of a state under the rule of law and separation of powers.

If a petition (part thereof) fails to comply with the requirements set forth in Article 66 of the Law on the Constitutional Court, under Article 70 of the Law on the Constitutional Court, such a petition is returned to the petitioner.

2.4. Taking account of the arguments set forth, it needs to be held that there is a ground to return the petition of the group of Members of the Seimas, the petitioner, requesting to investigate whether the Government resolution (No. 199) of 15 February 2012 (wording of 11 July 2012), insofar as, pursuant to it, “The Government shall make the principal decisions regarding the project of the Liquefied Natural Gas Terminal that are connected to the state loan and other essential property obligations assumed by the state”, is not in conflict with Paragraph 2 of Article 5, Article 29, Paragraphs 1, 4 and 5 of Article 46 and Paragraph 1 of Article 128 of the Constitution and the constitutional principles of a state under the rule of law and separation of powers.

VIII

  1. The decision of the Constitutional Court on accepting the petition neither approves of nor denies the arguments upon which the group of Members of the Seimas, the petitioner, grounds its position; when adopting such a decision, the fact of essential significance is whether the petition of the petitioner is grounded on legal reasoning (the Constitutional Court’s decisions of 15 December 2006, 8 January 2008, 8 October 2008, 3 April 2009, 14 May 2009 and 5 March 2012).
  2. In this Constitutional Court’s decision it has been held that the petition of the group of Members of the Seimas, the petitioner, is not, to a certain extent, grounded on legal reasoning, also that the petitioner’s petition requesting to investigate the compliance of the legal act (part thereof) with the Constitution does not clearly set forth the legal reasoning grounding the petitioner’s doubt as regards every concretely indicated article (part thereof) or item of the impugned legal act (part thereof), the compliance of which with the concretely indicated provisions of the Constitution is doubtful to the petitioner. Thus, it has been held that the petitioner’s petition in question is to be, to a certain extent, considered as not complying with the requirements set forth in Article 66 of the Law on the Constitutional Court.
  3. If a petition (part thereof) fails to comply with the requirements set forth in Article 66 of the Law on the Constitutional Court, under Article 70 of the Law on the Constitutional Court, such a petition is returned to the petitioner. The return of a petition shall not take away the right to apply to the Constitutional Court according to the common procedure after removal of the deficiencies thereof.

Conforming to Paragraph 3 of Article 22, Paragraph 2 of Article 25 and Articles 28, 66 and 70 of the Law on the Constitutional Court of the Republic of Lithuania, the Constitutional Court of the Republic of Lithuania has passed the following

decision:

  1. To accept the petition of the group of Members of the Seimas of the Republic of Lithuania, the petitioner, requesting to investigate whether:

– Paragraph 1 of Article 4 of the Republic of Lithuania Law on the Liquefied Natural Gas Terminal is not in conflict with Paragraph 1 of Article 46 of the Constitution of the Republic of Lithuania;

– Paragraph 2 of Article 5 of the Republic of Lithuania Law on the Liquefied Natural Gas Terminal is not in conflict with Article 23 of the Constitution of the Republic of Lithuania;

– Paragraphs 1, 2 and 3 of Article 11 of the Republic of Lithuania Law on the Liquefied Natural Gas Terminal, insofar as natural gas enterprises importing natural gas into the Republic of Lithuania through interconnectors and other natural gas pipelines of the transmission system are placed under the obligation to purchase through the Liquefied Natural Gas Terminal not less than 25 percent of the total natural gas volume that such an enterprise supplies to the natural gas system per year, are not in conflict with Paragraph 1 of Article 23 and Paragraphs 1, 4 and 5 of Article 46 of the Constitution of the Republic of Lithuania;

– the provision “The aforesaid natural gas enterprises may not, on the grounds of agreements concluded after the entry into force of this Law, be placed under an obligation to pay for the untaken natural gas volume imported through interconnectors and other natural gas pipelines of the transmission system (the so-called ‘take-or-pay’ obligation)” of Paragraph 2 of Article 11 of the Republic of Lithuania Law on the Liquefied Natural Gas Terminal, insofar as the obligation referred to therein may not be applied only when paying for the untaken natural gas volume imported through interconnectors and other natural gas pipelines of the transmission system, however, it is applied when paying for the untaken natural gas volume imported through the Liquefied Natural Gas Terminal, is not in conflict with Paragraph 1 of Article 29 and Paragraphs 1 and 4 of Article 46 of the Constitution of the Republic of Lithuania;

– the Resolution (No. 199) of the Government of the Republic of Lithuania “On the Implementation of the Republic of Lithuania Law on the Liquefied Natural Gas Terminal” of 15 February 2012 (wording of 11 July 2012), insofar as it is thereby approved that SC Klaipėdos Nafta, as the company implementing the project of the Liquefied Natural Gas Terminal, would implement the project of the Liquefied Natural Gas Terminal, is not in conflict with Paragraph 1 of Article 46 of the Constitution of the Republic of Lithuania.

  1. To return the petition of the group of Members of the Seimas of the Republic of Lithuania, the petitioner, requesting to investigate whether:

– Paragraph 1 of Article 4 of the Republic of Lithuania Law on the Liquefied Natural Gas Terminal is not in conflict with Paragraph 2 of Article 5, Article 29, Paragraphs 4 and 5 of Article 46 and Paragraph 1 of Article 128 of the Constitution of the Republic of Lithuania and the constitutional principles of a state under the rule of law and separation of powers;

– Paragraph 2 of Article 5 of the Republic of Lithuania Law on the Liquefied Natural Gas Terminal is not in conflict with Paragraph 2 of Article 5, Article 29, Paragraphs 1, 4 and 5 of Article 46, Item 15 of Article 67 and Paragraphs 2 and 3 of Article 127 of the Constitution of the Republic of Lithuania and the constitutional principles of a state under the rule of law and separation of powers;

– Paragraphs 1, 2 and 3 of Article 11 of the Republic of Lithuania Law on the Liquefied Natural Gas Terminal are not in conflict with Paragraph 2 of Article 5 and Article 29 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law;

– the provision “The aforesaid natural gas enterprises may not, on the grounds of agreements concluded after the entry into force of this Law, be placed under an obligation to pay for the untaken natural gas volume imported through interconnectors and other natural gas pipelines of the transmission system (the so-called ‘take-or-pay’ obligation)” of Paragraph 2 of Article 11 of the Republic of Lithuania Law on the Liquefied Natural Gas Terminal, insofar as the limitation is prescribed solely with respect to the untaken natural gas volume imported through interconnectors and other natural gas pipelines of the transmission system, is not in conflict with Paragraph 2 of Article 5, Article 23 and Paragraph 5 of Article 46 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law;

– Paragraph 4 of Article 14 of the Republic of Lithuania Law on the Liquefied Natural Gas Terminal is not in conflict with Paragraph 4 of Article 46 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law;

– the Resolution (No. 199) of the Government of the Republic of Lithuania “On the Implementation of the Republic of Lithuania Law on the Liquefied Natural Gas Terminal” of 15 February 2012 (wording of 11 July 2012), insofar as it is thereby approved that SC Klaipėdos Nafta, as the company implementing the project of the Liquefied Natural Gas Terminal, would implement the project of the Liquefied Natural Gas Terminal, is not in conflict with Paragraph 2 of Article 5, Article 29, Paragraphs 4 and 5 of Article 46 and Paragraph 1 of Article 128 of the Constitution of the Republic of Lithuania and the constitutional principles of a state under the rule of law and separation of powers;

– the Resolution (No. 199) of the Government of the Republic of Lithuania “On the Implementation of the Republic of Lithuania Law on the Liquefied Natural Gas Terminal” of 15 February 2012 (wording of 11 July 2012), insofar as, pursuant to it, “The Government shall make the principal decisions regarding the project of the Liquefied Natural Gas Terminal that are connected to the state loan and other essential property obligations assumed by the state”, is not in conflict with Paragraph 2 of Article 5, Article 29, Paragraphs 1, 4 and 5 of Article 46 and Paragraph 1 of Article 128 of the Constitution of the Republic of Lithuania and the constitutional principles of a state under the rule of law and separation of powers.

 

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

The decision is promulgated in the name of the Republic of Lithuania.

Justices of the Constitutional Court:                                    Egidijus Bieliūnas

                                                                                                        Toma Birmontienė

                                                                                                        Pranas Kuconis

                                                                                                        Gediminas Mesonis

                                                                                                        Ramutė Ruškytė

                                                                                                        Egidijus Šileikis

                                                                                                        Algirdas Taminskas

                                                                                                        Romualdas Kęstutis Urbaitis

                                                                                                        Dainius Žalimas