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On refusing to consider a petition

 THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

 DECISION

ON THE PETITION (NO. 1B-4/2012) OF THE VILNIUS REGIONAL ADMINISTRATIVE COURT, THE PETITIONER, REQUESTING TO INVESTIGATE WHETHER THE PROVISIONS OF RESOLUTION OF THE GOVERNMENT OF THE REPUBLIC OF LITHUANIA NO. 603 “ON APPROVING THE MODEL REGULATIONS ON ADMINISTRATION OF THE COMMON PROPERTY OF OWNERS OF FLATS AND OTHER PREMISES” OF 23 MAY 2001 ARE NOT IN CONFLICT WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA AND THE REPUBLIC OF LITHUANIA LAW ON LOCAL SELF-GOVERNMENT

 12 April 2012

Vilnius

 

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

with the secretary—Daiva Pitrėnaitė,

in a procedural sitting of the Constitutional Court considered the petition (No. 1B-4/2012) of the Vilnius Regional Administrative Court, the petitioner, requesting to investigate whether the provisions of Resolution of the Government of the Republic of Lithuania No. 603 “On Approving the Model Regulations on Administration of the Common Property of Owners of Flats and Other Premises” of 23 May 2001 are not in conflict with the Constitution of the Republic of Lithuania and the Republic of Lithuania Law on Local Self-government.

The Constitutional Court

has established:

The Vilnius Regional Administrative Court, the petitioner, requests to investigate whether “the provision of Item 2.2 (wording of 12 October 2011) of Resolution of the Government of the Republic of Lithuania No. 603 of 23 May 2001 (Official Gazette Valstybės žinios, 2011, No. 125-5963) whereby in the decision on appointing an administrator made by the director of the municipal administration or his authorised representative one must specify the payment for administration of the common property and the provision ‘the payment for administration of the common property which is specified in the decision on appointing an administrator made by the director of the municipal administration or his authorised representative’ of Item 8.1 (wording of 12 October 2011) of the Model Regulations on Administration of the Common Property of Owners of Flats and Other Premises (Official Gazette Valstybės žinios, 2011, No. 125-5963) approved by the aforesaid resolution of the Government of the Republic of Lithuania are not in conflict with Item 42 (wording of 15 September 2008) of Article 6 of the Republic of Lithuania Law on Local Self-government and with Item 2 of Article 94 and Paragraph 2 of Article 120 of the Constitution of the Republic of Lithuania”.

The Constitutional Court

holds that:

  1. The Vilnius Regional Administrative Court, the petitioner, requests to investigate whether the provision of Item 2.2 (wording of 12 October 2011) of Government Resolution No. 603 “On Approving the Model Regulations on Administration of the Common Property of Owners of Flats and Other Premises” of 23 May 2001 (hereinafter also referred to as Government resolution No. 603 of 23 May 2001) whereby in the decision on appointing an administrator made by the director of the municipal administration or his authorised representative one must specify the payment for administration of the common property, and the provision “the payment for administration of the common property which is specified in the decision on appointing an administrator made by the director of the municipal administration or his authorised representative” of Item 8.1 (wording of 12 October 2011) of the Model Regulations on Administration of the Common Property of Owners of Flats and Other Premises (hereinafter also referred to as the Regulations) approved by the aforesaid Government resolution are not in conflict with Item 2 of Article 94 and Paragraph 2 of Article 120 of the Constitution and Item 42 (wording of 15 September 2008) of Article 6 of the Law on Local Self-government.

1.1. The petitioner requests to investigate inter alia the compliance of the provision of Item 2.2 (wording of 12 October 2011) of Government resolution No. 603 of 23 May 2001, whereby in the decision on appointing an administrator made by the director of the municipal administration or his authorised representative one must specify the payment for administration of the common property, with Item 2 of Article 94 and Paragraph 2 of Article 120 of the Constitution and with Item 42 (wording of 15 September 2008) of Article 6 of the Law on Local Self-government.

It needs to be noted that the provision (the petitioner requests to investigate its compliance with the Constitution and the Law on Local Self-government) of Item 2.2 of Government resolution No. 603 of 23 May 2001 is a part of the broader text set forth in Item 2 of this Government resolution. Item 2 of Government resolution No. 603 of 23 May 2001 inter alia provides: “To establish that <…> 2.2. in the decision on appointing an administrator made by the director of the municipal administration or his authorised representative one must specify <…> the payment for administration of the common property established pursuant to the rate confirmed by the municipal council or the methodology for calculation of this rate or according to the results of public procurement of administration service (if these services are purchased), however, not higher than the rate confirmed by the municipal council or the rate calculated according to the methodology approved by the municipal council. <...>”

1.2. The petitioner requests to investigate inter alia the compliance of the provision “the payment for administration of the common property which is specified in the decision on appointing an administrator made by the director of the municipal administration or his authorised representative” of Item 8.1 (wording of 12 October 2011) of Government resolution No. 603 of 23 May 2001 with Item 2 of Article 94 and Paragraph 2 of Article 120 of the Constitution and Item 42 (wording of 15 September 2008) of Article 6 of the Law on Local Self-government.

It needs to be noted that the provision (the petitioner requests to investigate its compliance with the Constitution and the Law on Local Self-government) of Item 8.1 of the Regulations is a part of the broader text which is set forth in Item 8 of the Regulations. Item 8 of the Regulations inter alia provides: “In proportion to the part of the common property of the owners of premises, the administrator shall calculate the following monthly dues and contributions: 8.1. for administration of the common property of the house (implementation of the functions of an administrator specified in Item 5 of these Regulations)—according to the payment for administration of the common property which is specified in the decision on appointing an administrator made by the director of the municipal administration or his authorised representative; <...>.”

It is not obvious from the arguments of the petition of the petitioner that, in its opinion, the legal regulation established in Item 2.2 of Government resolution No. 603 of 23 May 2001 and in Item 8.1 of the Regulations, whereby one enshrines a duty to specify the payment for administration of the common property in the decision on appointing an administrator made by the director of the municipal administration or his authorised representative, would restrict the right of municipal councils to confirm the rate of this payment or the methodology of its calculation. The petitioner just notes that the case considered by it does not include a dispute regarding the fact that payments and the amount thereof for administration of the common property are established by municipalities.

Thus, the petitioner impugns the compliance of only those provisions of Item 2.2 (wording of 12 October 2011) of Government resolution No. 603 of 23 May 2001 and Item 8.1 (wording of 12 October 2011) of the Regulations approved by the aforesaid resolution, which contain the requirement that in the decision on appointing an administrator made by the director of the municipal administration or his authorised representative one must specify the payment for administration of the common property, with Item 2 of Article 94 and Paragraph 2 of Article 120 of the Constitution and with Item 42 (wording of 15 September 2008) of Article 6 of the Law on Local Self-government.

  1. The doubts of the petitioner regarding the compliance of the provisions of Item 2.2 (wording of 12 October 2011) of Government resolution No. 603 of 23 May 2001 and Item 8.1 (wording of 12 October 2011) of the Regulations with Item 2 of Article 94 and Paragraph 2 of Article 120 of the Constitution and with Item 42 (wording of 15 September 2008) of Article 6 of the Law on Local Self-government, are substantiated by the same arguments.
  2. In the opinion of the petitioner, the provisions of Item 2.2 (wording of 12 October 2011) of Government resolution No. 603 of 23 May 2001 and Item 8.1 (wording of 12 October 2011) of the Regulations approved by the aforesaid resolution, under which, in the decision on appointing an administrator made by the director of the municipal administration or his authorised representative one must specify the payment for administration of the common property, are in conflict with Item 2 of Article 94 and Paragraph 2 of Article 120 of the Constitution and Item 42 (wording of 15 September 2008) of Article 6 of the Law on Local Self-government, as, according to the petitioner, “appointment of an administrator of common property of the owners of flats and other premises, establishment of legal grounds of his activity, supervision and control of his activity are an independent function of municipalities”.

3.1. Taking account of its conclusion that “appointment of an administrator of common property of the owners of flats and other premises, establishment of legal grounds of his activity, supervision and control of his activity are an independent function of municipalities”, the petitioner states that the Government may not establish, by means of a sub-statutory legal act, the requirement whereby in the decision on appointing an administrator made by the director of the municipal administration or his authorised representative one must specify the payment for administration of the common property.

3.2. The petitioner derives the aforesaid independent function of municipalities from the provision “Such administrator shall be appointed by the mayor (board) of a municipality or his (her) representative” of Paragraph 2 of Article 4.84 of the Civil Code of the Republic of Lithuania and from the following provision of Article 6 of the Law on Local Self-government: “Independent functions of municipalities (set out (assigned) by the Constitution and laws): <…> 42) monitoring and control of activities, in compliance with the competence laid down by law, of <…> administrators appointed by a municipality, when owners of flats and other premises fail to set up an association of the owners of flats and other premises or fail to conclude a joint action agreement, as well as when the association has been liquidated or the joint action agreement has been terminated.”

3.3. It needs to be noted that none of these provisions (Paragraph 2 of Article 4.84 of the Civil Code and Item 42 of Article 6 of the Law on Local Self-government) of the legal acts specified by the petitioner regulates the relations which would be linked to the duty to specify payment for administration of the common property in the decision on appointing an administrator made by the director of the municipal administration or his authorised representative, i.e. the relations which are regulated in the provisions of the Government resolution (and Regulations approved by it) which are impugned by the petitioner. The petitioner did not specify any other provisions of the Law on Local Self-government or other laws from which it would be obvious that a duty to specify payment for administration of the common property in the decision on appointing an administrator made by the director of the municipal administration or his authorised representative is an independent function of municipalities.

  1. While impugning the compliance of the legal regulation established in Item 2.2 (wording of 12 October 2011) of Government resolution No. 603 of 23 May 2001 and Item 8.1 (wording of 12 October 2011) of the Regulations approved by the aforesaid resolution with the Constitution, the petitioner refers to the acts of the Constitutional Court in which the official constitutional doctrine of local self-government is formulated. However, the petitioner refers only to separate fragments of the official constitutional doctrine and is silent as regards inter alia the provisions of the official constitutional doctrine, which are especially important in the context of the considered petition, that if the laws provide that certain relations connected with the procedure (procedures) of implementation of requirements of laws, thus also the requirements of the laws whereby municipal functions are established, are regulated by the Government, then the Government must do so; such legal regulation established by the Government is obligatory to municipal institutions as well (Constitutional Court decision of 11 February 2004 and ruling of 8 July 2005).

In this context it needs to be noted that Government resolution No. 603 of 23 May 2001 (wording of 28 May 2002), whereby one approved the Model Regulations on Administration of the Common Property of Owners of Flats and Other Premises, was adopted by following Paragraph 3 of Article 4.84 of the Civil Code which prescribes: “The administrator shall operate according to the regulations approved by the mayor (board) of a municipality. The Model regulations on administration of the common property of owners of flats and other premises shall be approved by the Government or the institution authorised by it.”

In its petition the petitioner is silent as regards the legal regulation established in Paragraph 3 of Article 4.84 of the Civil Code, from which it is obvious that the Government is granted the powers to regulate the relations linked to administration of common property of flats and other premises, and does not discuss at all the relation of this (palliated) legal regulation with the impugned legal regulation consolidated in Item 2.2 (wording of 12 October 2011) of Government resolution No. 603 of 23 May 2001 and Item 8.1 (wording of 12 October 2011) of the Regulations approved by the aforesaid resolution.

  1. It needs to be noted that from the legal point of view separate (individual) arguments provided in the petition of the petitioner does not provide any substantiation why, in the opinion of the petitioner, the impugned legal regulation established in Item 2.2 (wording of 12 October 2011) of Government resolution No. 603 of 23 May 2001 and Item 8.1 (wording of 12 October 2011) of the Regulations approved by the aforesaid resolution, whereby one enshrines the duty to specify payment for administration of the common property in the decision on appointing an administrator made by the director of the municipal administration or his authorised representative, i.e. to create preconditions for informing the owners of flats and other premises about the established payment, is in conflict with Item 2 of Article 94 and Paragraph 2 of Article 120 of the Constitution and with Item 42 (wording of 15 September 2008) of Article 6 of the Law on Local Self-government.

5.1. The petitioner, referring to the fact that in the case considered by it the administrator of the common property of owners of the block of flats provides services according to the rate established by the municipal council of the city of Vilnius or its methodology for calculation, draws a conclusion that it is the municipalities that must supervise and control that the administrators “would not charge too big” payments. In the opinion of the petitioner, for this reason the Government does not have the competence to establish the payments, the amount thereof for administration of common property, but also to establish such legal regulation whereby one would oblige to specify the payment for administration of the common property in the decision on appointing an administrator made by the director of the municipal administration or his authorised representative. The petitioner does not provide any constitutional arguments substantiating why, in its opinion, the Government may not enshrine the duty to specify the payment for administration of the common property the decision on appointing an administrator made by the director of the municipal administration or his authorised representative.

5.2. The statement of the petitioner that “the municipalities (Item 42 of Article 6 of the Law on Local Self-government), courts, but not the representative of the Government, have to control whether the payment of a concrete amount for administration of the common property is specified in the decision on appointing an administrator made by the director of the municipal administration or his authorised representative” in no way substantiates why the impugned legal regulation enshrined in the Government resolution and Regulations approved by it, whereby one consolidates the duty to specify the payment for administration of the common property in the decision on appointing an administrator made by the director of the municipal administration or his authorised representative, is in conflict with Item 2 of Article 94 and Paragraph 2 of Article 120 of the Constitution and with Item 42 (wording of 15 September 2008) of Article 6 of the Law on Local Self-government.

  1. It also needs to be noted that from the entirety of the arguments presented in the petition of the Vilnius Regional Administrative Court, the petitioner, it is clear that its arguments are inconsistent and contradictory: on the one hand, it is stated that if in the laws certain functions are attributed to the municipalities, the municipalities implement these functions insofar as these functions are attributed to them; these functions and the implementation thereof may be defined only by laws, whereas the adoption of the sub-statutory acts reducing and/or limiting the rights of self-government more than it is established in the laws would be considered as acting ultra vires, “trespassing the independence of the local self-government which is enshrined in Paragraph 2 of Article 120 of the Constitution”, i.e. the petitioner states that by means of sub-statutory acts one may not regulate those relations which are regulated by the impugned provisions of the Government resolution (and the Regulations approved by it); on the other hand, the petitioner notes that “the representative of the Government could perform the administrative supervision of municipalities properly by obliging the municipality to establish such legal normative regulation in which it would be entrenched that the payment of a concrete amount for administration of the common property must be specified in the decision on appointing an administrator made by the director of the municipal administration or his authorised representative. The representative of the Government has such powers according to Paragraph 2 of Article 123 of the Constitution and Paragraph 1 of Article 4.238 of the Civil Code”, i.e. the petitioner thinks that by means of a sub-statutory act the representative of the Government could oblige the municipality to establish such legal regulation which is established in the impugned provisions of the Government resolution (and Regulations approved by it). In this context it needs to be noted that Paragraph 1 of Article 4.238 of the Civil Code prescribes: “The property administrator is entitled to the remuneration fixed in the act establishing administration except cases when according to the law the administration is gratuitous. If in the act establishing administration the remuneration is not fixed, it is established by court according to the market value of the services rendered by the administrator.”
  2. Taking account of the circumstances set forth, there is a ground to state that the petition of the Vilnius Regional Administrative Court, the petitioner, requesting to investigate the compliance of Item 2.2 (wording of 12 October 2011) of Government resolution No. 603 of 23 May 2001 and Item 8.1 (wording of 12 October 2011) of the Regulations approved by the aforesaid resolution with the Constitution and the Law on Local Self-government is substantiated not by those reasons which are specified explicitly by the petitioner, therefore, from this point of view, this petition of the petitioner is a fictitious one.

In the jurisprudence of the Constitutional Court it has been held that a fictitious petition of a petitioner is to be considered as not falling within the jurisdiction of the Constitutional Court and may not be accepted for consideration at the Constitutional Court (Constitutional Court decisions of 31 January 2007, 14 October 2008 and 5 November 2008).

  1. Under Item 2 of Paragraph 1 of Article 69 of the Law on the Constitutional Court, by its decision, the Constitutional Court shall refuse to consider petitions to investigate 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.
  2. Taking account of the arguments set forth, one is to refuse to accept for consideration the petition of the Vilnius Regional Administrative Court, the petitioner, requesting to investigate whether the provision of Item 2.2 (wording of 12 October 2011) of Government resolution No. 603 of 23 May 2001 whereby in the decision on appointing an administrator made by the director of the municipal administration or his authorised representative one must specify the payment for administration of the common property, and the provision “the payment for administration of the common property which is specified in the decision on appointing an administrator made by the director of the municipal administration or his authorised representative” of Item 8.1 (wording of 12 October 2011) of the Regulations approved by the aforesaid Government resolution are not in conflict with Item 2 of Article 94 and Paragraph 2 of Article 120 of the Constitution and with Item 42 (wording of 15 September 2008) of Article 6 of the Law on Self-government.

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

decision:

To refuse to accept for consideration the petition (No. 1B-4/2012) of the Vilnius Regional Administrative Court, the petitioner, requesting to investigate whether the provision of Item 2.2 (wording of 12 October 2011) of Resolution of the Government of the Republic of Lithuania No. 603 “On Approving the Model Regulations on Administration of the Common Property of Owners of Flats and Other Premises” of 23 May 2001 whereby in the decision on appointing an administrator made by the director of the municipal administration or his authorised representative one must specify the payment for administration of the common property and the provision “the payment for administration of the common property which is specified in the decision on appointing an administrator made by the director of the municipal administration or his authorised representative” of Item 8.1 (wording of 12 October 2011) (Official Gazette Valstybės žinios, 2011, No. 125-5963) of the Model Regulations on Administration of the Common Property of Owners of Flats and Other Premises approved by the aforesaid resolution of the Government of the Republic of Lithuania that are not in conflict with Item 2 of Article 94 and Paragraph 2 of Article 120 of the Constitution of the Republic of Lithuania and with Item 42 (wording of 15 September 2008) of Article 6 of the Republic of Lithuania Law on Self-government.

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

                                                                                                        Gediminas Mesonis

                                                                                                        Ramutė Ruškytė

                                                                                                        Egidijus Šileikis

                                                                                                        Algirdas Taminskas

                                                                                                        Romualdas Kęstutis Urbaitis

                                                                                                        Dainius Žalimas