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On the interpretation of the provisions of the Constitutional Court’s ruling of 1 July 2004 related to the activities incompatible with the status of a member of the Seimas

Case No. 04/04

 

THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

DECISION

ON THE CONSTRUCTION OF THE PROVISIONS OF ITEMS 13.6, 14.6.3, 14.6.5 AND 16 OF CHAPTER II OF THE REASONING PART OF THE RULING OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA “ON THE COMPLIANCE OF PARAGRAPH 4 OF ARTICLE 15 OF THE STATUTE OF THE SEIMAS OF THE REPUBLIC OF LITHUANIA (WORDING OF 22 DECEMBER 1998) WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA” OF 1 JULY 2004

23 February 2011
Vilnius

 

The Constitutional Court of the Republic of Lithuania, composed of the Justices of the Constitutional Court Armanas Abramavičius, Toma Birmontienė, Pranas Kuconis, Kęstutis Lapinskas, Zenonas Namavičius, Ramutė Ruškytė, Egidijus Šileikis, Algirdas Taminskas, and Romualdas Kęstutis Urbaitis,

with the secretary—Daiva Pitrėnaitė,

in the presence of Algimantas Salamakinas, a Member of the Seimas, the petitioner who has submitted the petition requesting to construe the ruling of the Constitutional Court of the Republic of Lithuania of 1 July 2004 and who was the representative of the group of Members of the Seimas of the Republic of Lithuania in constitutional justice case No. 04/04, and Jurgita Meškienė, the Head of the Public Law Unit of the Legal Department of the Office of the Seimas, who was the representative of the Seimas of the Republic of Lithuania, the party concerned, in constitutional justice case No. 04/04,

pursuant to Article 61 of the Republic of Lithuania Law on the Constitutional Court, in a public Court hearing, on 17 February 2011, considered the petition of A. Salamakinas, a Member of the Seimas of the Republic of Lithuania, requesting to construe:

whether the formula “the notion ‘work’ used in the formula ‘work in business, commercial and other private establishments or enterprises’ of Paragraph 1 of Article 60 of the Constitution” of Item 13.6 of Chapter II of the reasoning part of the Constitutional Court ruling of 1 July 2004 also comprises any private activity of a Member of the Seimas that is carried out in business, commercial and other private establishments or enterprises under a legal contract or any other type of contract, though, in the time free from sittings of the Seimas and without receiving, for that activity, any remuneration or any other types of monetary payments;

whether the statement “one of specific features of the freedom of creative activities of a Member of the Seimas is that a Member of the Seimas exercises this freedom not as a subject of employment, service or similar relations” of Item 14.6.3 of Chapter II of the reasoning part of the Constitutional Court ruling of 1 July 2004 means that a Member of the Seimas may not exercise the said right by entering into an author’s contract and by receiving remuneration for the work stipulated in the contract and performed;

whether the provisions “The formula ‘payment for educational or creative activities’ in Paragraph 1 of Article 113 of the Constitution reveals that the constitutional concepts of educational and creative activities are not identical, and that each of them has its own independent content. These concepts may not be identified, they are not synonyms, and none of them comprises the other. Educational activities in the Constitution are separated from creative activities: educational activities are linked with education, teaching and training at the educational and teaching establishments (including higher schools), meanwhile creative activities <...> are activities aimed at creating a piece of science, technology, culture or art” of Item 14.6.5 of Chapter II of the reasoning part of the Constitutional Court ruling of 1 July 2004 mean that the activities of a Member of the Seimas that are formalised under an author’s contract, where a Member of the Seimas delivers, in public, lectures created by himself and receives royalties for these lectures, are to be viewed as activities for which the Member of the Seimas may receive remuneration;

whether the statement “According to Item 7 of Article 63 of the Constitution, the powers of a Member of the Seimas become terminated if he does not resign from the employment which is incompatible with the duties of the Member of the Seimas” of Item 16 of Chapter II of the reasoning part of the Constitutional Court ruling of 1 July 2004 means that “the powers of a Member of the Seimas become automatically terminated upon the adoption of the Seimas resolution and without applying any special parliamentary procedures”.

The Constitutional Court

has established:

I

1. On 1 July 2004, in constitutional justice case No. 04/04, the Constitutional Court adopted the Ruling “On the compliance of Paragraph 4 of Article 15 of the Statute of the Seimas of the Republic of Lithuania (wording of 22 December 1998) with the Constitution of the Republic of Lithuania” (Official Gazette Valstybės žinios, 2004, No. 105-3894; hereinafter referred to as the Constitutional Court ruling of 1 July 2004).

In the Constitutional Court ruling of 1 July 2004 it was recognised that Paragraph 4 of Article 15 of the Statute of the Seimas of the Republic of Lithuania (wording of 22 December 1998), to the extent that it provides that remuneration of a Member of the Seimas for educational activities is considered to be remuneration for creative activities, is in conflict with Paragraph 3 of Article 60 of the Constitution of the Republic of Lithuania.

2. On 10 February 2005, the Constitutional Court adopted the Decision “On the construction of the Ruling of the Constitutional Court of the Republic of Lithuania ‘On the compliance of Paragraph 4 of Article 15 of the Statute of the Seimas of the Republic of Lithuania (wording of 22 December 1998) with the Constitution of the Republic of Lithuania’ of 1 July 2004” (Official Gazette Valstybės žinios, 2005, No. 21-664; hereinafter referred to as the Constitutional Court decision of 10 February 2005).

In the Constitutional Court decision of 10 February 2005 the following was construed:

the notion “continuity of the activity of the Seimas” used in the Ruling of the Constitutional Court of the Republic of Lithuania “On the compliance of Paragraph 4 of Article 15 of the Statute of the Seimas of the Republic of Lithuania (wording of 22 December 1998) with the Constitution of the Republic of Lithuania” of 1 July 2004 does not mean that the continuity of work of the Seimas would be violated, if the paid annual holidays established in Paragraph 1 of the Article 49 of the Constitution were granted to all the Members of the Seimas during the period between the sessions of the Seimas (save the exceptions, which arise from the Constitution, concerning the time for annual paid holidays of the Speaker of the Seimas and Deputy Speaker (Deputies) of the Seimas);

the statement “the notion ‘work’ used in the formula ‘work in business, commercial and other private establishments or enterprises’ of Paragraph 1 of Article 60 of the Constitution also comprises any other private profit-making activity, as well as any profit-making activity engaged in without establishing an enterprise, establishment or organisation” of Paragraph 2 of Item 13.6 of Chapter II of the reasoning part of the Constitutional Court ruling of 1 July 2004 does not mean that any activity, which can be described as farming, is by itself incompatible with the constitutional legal status of a Member of the Seimas (if it has not turned into a business, commerce or any other activity prohibited to a Member of the Seimas by the Constitution);

the statements “The constitutional legal status of a Member of the Seimas, a representative of the Nation, comprising inter alia the limitations established in Paragraph 1 of Article 60 of the Constitution, determines particularities of exercise of the person’s rights consolidated in Article 46 and 48 of the Constitution, which are enjoyed by him as any other human being. It needs to be noted that the provisions of Paragraph 1 of Article 60 of the Constitution, with regard to the purpose of the legal regulation established in this paragraph, mean also that the Member of the Seimas who is a founder, owner, co-owner or shareholder of a private enterprise, establishment or organisation, may not take an office, perform work, perform service, fulfil other functions, perform other tasks, hold a so-called office of honour, etc. (including participation in collegial management, control and other bodies) in the said establishment, enterprise or organisation, nor represent it. This is incompatible with the constitutional legal status of a Member of the Seimas: having acquired all the rights of a representative of the Nation, a Member of the Seimas decides that he will be a representative of the Nation and will not be engaged in business, commerce or other profit-making private activity” of the third paragraph of Item 13.7.1 of Chapter II of the reasoning part of the Constitutional Court ruling of 1 July 2004; the statements “The legal regulation established in Paragraph 1 of Article 60 of the Constitution may not be construed in the way denying the essence of the right of ownership consolidated in Article 23 of the Constitution, which is enjoyed by a Member of the Seimas as well. Thus, the provisions of Paragraph 1 of Article 60 of the Constitution, consolidating the incompatibility of the duties of a Member of the Seimas with inter alia engaging in business, commerce or other profit-making private activity, may not be construed as the ones meaning the prohibition for a Member of the Seimas against using his property, getting income from it, possessing the property owned by him, etc., as well as against concluding contracts related thereto. However, such an activity of a Member of the Seimas, when he uses his property, gets income from it, possesses the property owned by him, etc., as well as concludes contracts related thereto, according to the Constitution, may not take a form of business, commerce or other profit-making private activity, as this would violate the prohibition consolidated in Paragraph 1 of Article 60 of the Constitution for a Member of the Seimas to engage, in any form, in business, commerce or other profit-making activity” of the fourth paragraph of Item 13.7.2 of the same chapter; the statements “When establishing, by the law, the specified constitutionally necessary legal regulation, the legislator must also establish the ways of providing legal conditions for preventing the origination of incompatibility of the duties of a Member of the Seimas with engaging in business, commerce or other profit-making private activity. Such legal regulation would also create pre-conditions for avoiding the use of the mandate of a Member of the Seimas in the interests of private benefit of certain persons, i.e. particular interests, rather than the interests of the Nation and the State of Lithuania, and confrontation of the private interests of a Member of the Seimas with the interests of the Nation and the State of Lithuania, i.e. public interests; this would strengthen the Nation’s trust in Members of the Seimas, as representatives of the Nation, and the Seimas, as the representation of the Nation. Such control is an important condition of implementation of the provision of Item 7 of Article 63 of the Constitution, under which the powers of a Member of the Seimas become terminated if he takes up, or does not resign from, the employment which is incompatible with the duties of a Member of the Seimas” of the third paragraph of Item 13.7.3 of the same chapter; as well as the statements “Attention should be drawn to the fact that various methods of ensuring the incompatibility of the duties of a member of the parliament and engagement in business and the control over it are established in foreign democratic states under the rule of law, for example trust of possession of property of a member of the parliament or other compulsory transfer to other persons, anonymous possession of such property, the control over agreements concluded between the enterprises, the founder, owner, co-owner or a shareholder of which is a member of the parliament, and establishments, enterprises, and organisations of the public sector, etc.” of the fourth paragraph of the same item do not mean that a Member of the Seimas is prohibited from being the founder, owner, co-owner or shareholder of any enterprise, establishment, organisation, that such a Member of the Seimas, according to the Constitution, may not have the rights of the founder, owner, co-owner or shareholder of a private enterprise, establishment or organisation, that he may not exercise these rights himself, except for the fact that such a Member of the Seimas, who is the founder, owner, co-owner or shareholder of a private enterprise, establishment or organisation, may not take an office, perform work, perform service, fulfil other functions, perform other tasks, hold a so-called office of honour, etc. (including participation in collegial management, control and other bodies) in that enterprise, establishment, organisation or represent it;

the statements of Item 13.8.4 of Chapter II of the reasoning part of the Constitutional Court ruling of 1 July 2004 do not in themselves mean that a Member of the Seimas may not take office (inter alia leading office) in the political party a member of which he is, nor represent it;

the statements of Item 13.8.4 of Chapter II of the reasoning part of the Constitutional Court ruling of 1 July 2004 do not in themselves mean that a Member of the Seimas may not take office (inter alia leading office) in a trade union or other association, a member of which he is, nor represent it;

the statements of Items 12, 13.1, 13.5, 13.6 and 13.9 of Chapter II of the reasoning part of the Constitutional Court ruling of 1 July 2004 concerning the incompatibility of the duties of a Member of the Seimas with other duties and work mean that, under the Constitution, there may not be any such legal situation where a Member of the Seimas is the person who has not terminated his employment relations with a certain state or municipal enterprise, establishment, organisation, or a private enterprise, establishment, organisation, or a certain public organisation, trade union, political party, association or other union (regardless of its title), but is granted holiday or in any other way is allowed not to perform respective work or not to perform respective activities temporarily (for the period when he discharges the duties of a Member of the Seimas), or discharging of his powers (duties) is suspended in that enterprise, establishment, organisation, or a certain public organisation, trade union, political party, association or other union (regardless of its title).

3. The Member of the Seimas A. Salamakinas, the petitioner, requests the Constitutional Court to construe:

whether the formula “the notion ‘work’ used in the formula ‘work in business, commercial and other private establishments or enterprises’ of Paragraph 1 of Article 60 of the Constitution” of Item 13.6 of Chapter II of the reasoning part of the Constitutional Court ruling of 1 July 2004 also comprises any private activity of a Member of the Seimas that is carried out in business, commercial and other private establishments or enterprises under a legal contract or any other type of contract, though, in the time free from sittings of the Seimas and without receiving, for that activity, any remuneration or any other types of monetary payments;

whether the statement “one of specific features of the freedom of creative activities of a Member of the Seimas is that a Member of the Seimas exercises this freedom not as a subject of employment, service or similar relations” of Item 14.6.3 of Chapter II of the reasoning part of the Constitutional Court ruling of 1 July 2004 means that a Member of the Seimas may not exercise the said right by entering into an author’s contract and by receiving remuneration for the work stipulated in the contract and performed;

whether the provisions “The formula ‘payment for educational or creative activities’ in Paragraph 1 of Article 113 of the Constitution reveals that the constitutional concepts of educational and creative activities are not identical, and that each of them has its own independent content. These concepts may not be identified, they are not synonyms, and none of them comprises the other. Educational activities in the Constitution are separated from creative activities: educational activities are linked with education, teaching and training at the educational and teaching establishments (including higher schools), meanwhile creative activities <...> are activities aimed at creating a piece of science, technology, culture or art” of Item 14.6.5 of Chapter II of the reasoning part of the Constitutional Court ruling of 1 July 2004 mean that the activities of a Member of the Seimas that are formalised under an author’s contract, where a Member of the Seimas delivers, in public, lectures created by himself and receives royalties for these lectures, are to be viewed as activities for which the Member of the Seimas may receive remuneration;

whether the statement “According to Item 7 of Article 63 of the Constitution, the powers of a Member of the Seimas become terminated if he does not resign from the employment which is incompatible with the duties of the Member of the Seimas” of Item 16 of Chapter II of the reasoning part of the Constitutional Court ruling of 1 July 2004 means that “the powers of a Member of the Seimas become automatically terminated upon the adoption of the Seimas resolution and without applying any special parliamentary procedures”.

II

1. At the Constitutional Court hearing, A. Salamakinas, the Member of the Seimas who has submitted the petition requesting to construe certain provisions of the Constitutional Court ruling of 1 July 2004, explained the reasoning of his petition and answered the questions given.

2. At the Constitutional Court hearing, J. Meškienė, the representative of the Seimas, the party concerned, in constitutional justice case No. 04/04, also spoke and answered the questions given.

The Constitutional Court

holds that:

I

1. The powers of the Constitutional Court to officially construe its own rulings are entrenched in the Law on the Constitutional Court (Article 61). The Constitutional Court has held in its acts more than once that it enjoys the powers to construe its other final acts as well.

2. Paragraph 1 of Article 61 of the Law on the Constitutional Court provides that a ruling of the Constitutional Court may be officially construed by the Constitutional Court at the request of the parties to the case, of other institutions or persons to whom it was sent, or on its own initiative.

The Member of the Seimas A. Salamakinas was the representative of the group of Members of the Seimas, the petitioner, in constitutional justice case No. 04/04, wherein the Constitutional Court ruling of 1 July 2004, the construction of the provisions whereof he requests, was adopted. Thus, under Article 61 of the Law on the Constitutional Court, the Member of the Seimas A. Salamakinas has the right to request the Constitutional Court to construe the provisions of the Constitutional Court ruling of 1 July 2004.

3. A decision concerning construction of a Constitutional Court ruling shall be adopted at a Constitutional Court sitting as a separate document (Paragraph 2 of Article 61 of the Law on the Constitutional Court).

4. In its acts the Constitutional Court has held more than once that the purpose of the institute of construction of Constitutional Court rulings and other final acts is to disclose the contents and meaning of corresponding provisions of a Constitutional Court ruling or other final act more broadly and in more detail, if it is necessary, in order to ensure proper execution of that Constitutional Court ruling or other final act so that this Constitutional Court ruling or other final act would be followed.

5. The Constitutional Court has held more than once that a ruling of the Constitutional Court is integral; the operative (resolving) part of a ruling of the Constitutional Court is based upon the arguments of the reasoning part; while construing its ruling, the Constitutional Court is bound both by the content of the part of resolution and that of reasoning of its ruling; the decision adopted concerning construction of a Constitutional Court ruling is inseparable from the Constitutional Court ruling.

6. Under Paragraph 3 of Article 61 of the Law on the Constitutional Court, the Constitutional Court must construe its ruling without changing its content.

The Constitutional Court has held more than once that this provision of Paragraph 3 of Article 61 of the Law on the Constitutional Court, among other things, means that, while construing its ruling, the Constitutional Court cannot construe its content so that the meaning of its provisions, inter alia the notional entirety of the elements constituting the content of the ruling, the arguments and reasoning upon which that Constitutional Court ruling is based, is changed, also that the Constitutional Court may not construe what was not investigated in that constitutional justice case, subsequent to which the construed ruling was adopted, either. The Constitutional Court has held more than once that the consideration of a petition requesting to construe a Constitutional Court ruling or its other final act does not imply a new constitutional justice case.

It has also been held in the jurisprudence of the Constitutional Court more than once that the formula “shall be final and not subject to appeal” of Paragraph 2 of Article 107 of the Constitution, which provides that the decisions of the Constitutional Court on issues ascribed to its competence by the Constitution shall be final and not subject to appeal, also means that the Constitutional Court rulings, conclusions and decisions by which a constitutional justice case is finished, i.e. final acts of the Constitutional Court, are obligatory to all state institutions, courts, all enterprises, establishments and organisations, as well as officials and citizens, including the Constitutional Court itself: final acts of the Constitutional Court are obligatory to the Constitutional Court itself, they restrict the Constitutional Court in the aspect that it may not change them or review them if there are no constitutional grounds for that.

Therefore, in the official construction (subsequent to a petition of the parties to the case, other institutions and individuals, to whom the Constitutional Court ruling was sent, also on the initiative of the Constitutional Court itself) of rulings and other final acts of the Constitutional Court, the official constitutional doctrine is not corrected. The correction of the official constitutional doctrine (which, undoubtedly, must always have a constitutional basis and be explicitly reasoned in a respective act of the Constitutional Court) is to be related with the consideration of new constitutional justice cases and creation of new Constitutional Court precedents therein, but not with the official construction of provisions of the Constitutional Court rulings and other final acts (Constitutional Court decisions of 6 December 2007, 1 February 2008, 4 July 2008, 15 January 2009, 15 May 2009, 28 October 2009, 6 November 2009, 18 December 2009 and 2 July 2010).

7. It is also to be noted that the uniformity and continuity of the official constitutional doctrine implies a necessity to construe each provision of a Constitutional Court ruling or its other final act that is being construed by taking account of the entire official constitutional doctrinal context, also of other provisions (explicit and implicit) of the Constitution, which are related with the provision (provisions) of the Constitution in the course of the construction of which in a Constitutional Court ruling or its other final act the corresponding official constitutional doctrinal provision was formulated. As the Constitutional Court has held more than once, no official constitutional doctrinal provision of a Constitutional Court ruling or its other final act may be construed in isolation, by ignoring its meaning and systemic links with the other official constitutional doctrinal provisions set forth in that Constitutional Court ruling or its other final act, in other Constitutional Court acts, as well as with other provisions (explicit and implicit) of the Constitution (Constitutional Court decisions of 4 July 2008, 15 January 2009, 15 May 2009, 28 October 2009, 6 November 2009, 18 December 2009, 20 April 2010 and 2 July 2010).

II

1. The petitioner inter alia requests to construe whether the formula “the notion ‘work’ used in the formula ‘work in business, commercial and other private establishments or enterprises’ of Paragraph 1 of Article 60 of the Constitution” of Item 13.6 of Chapter II of the reasoning part of the Constitutional Court ruling of 1 July 2004 also comprises any private activity of a Member of the Seimas that is carried out in business, commercial and other private establishments or enterprises under a legal contract or any other type of contract, though, in the time free from sittings of the Seimas and without receiving, for that activity, any remuneration or any other types of monetary payments.

2. In Item 13.6 of Chapter II of the reasoning part of the Constitutional Court ruling of 1 July 2004 the following was held:

The notion ‘duties’ used in the formula ‘duties in State institutions and organisations’ in Paragraph 1 of Article 60 of the Constitution and the notion ‘work’ used in the formula ‘work in business, commercial and other private establishments or enterprises’ in this paragraph are to be construed with regard to the purpose of the constitutional legal regulation established in this article, and all the other constitutional provisions consolidating the constitutional status of a Member of the Seimas. It should be noted that taking office implies that the person, who takes the said office, must perform certain work, fulfil certain other functions, perform certain other tasks, etc., whereas performing work implies that the person, who performs certain work, must take a certain office, fulfil certain other functions, perform certain other tasks, etc. The notion ‘duties’ used in the formula ‘duties in State institutions and organisations’ in Paragraph 1 of Article 60 of the Constitution and the notion ‘work’ used in the formula ‘work in business, commercial and other private establishments or enterprises’ in this paragraph means activity. Therefore, in the context of the whole constitutional integral regulation these notions may not be confronted, and they may not be construed entirely literally, by ignoring their correlations.

The notion ‘duties’ used in the formula ‘duties in State institutions and organisations’ in Paragraph 1 of Article 60 of the Constitution comprises any activity in a Lithuanian state, municipal, foreign or international establishment, enterprise or organisation, or representation of such an establishment, enterprise or organisation, if this activity is linked with taking office, performing work, holding the office, fulfilment of other functions, performing other tasks, holding a so-called office of honour, etc. (including participation in collegial management, control and other bodies), irrespective of whether this activity is of permanent, temporary, or one-time (episodic) type, whether this activity is remunerated in any payment or other form, or not, whether this activity is referred to in legal acts as offices or any other term, whether this activity is duties of a leader or not, whether the person is elected or appointed to the office, whether this activity is registered under any legal contract or other legal act, or performed without any legal contract or legal act, save the exceptions indicated in this Constitutional Court ruling that are expressis verbis established or implicitly provided for in the Constitution itself. The notion ‘work’ used in the formula ‘work in business, commercial and other private establishments or enterprises’ in Paragraph 1 of Article 60 of the Constitution, in its turn, comprises any activity in a Lithuanian, foreign or international private establishment, enterprise or organisation, or representation of such an establishment, enterprise or organisation, if this activity is linked with performing work, taking office, performing service, fulfilment of other functions, performing other tasks, holding a so-called office of honour, etc. (including participation in collegial management, control and other bodies), irrespective of whether this activity is of permanent, temporary, or one-time (episodic) type, whether this activity is remunerated in any payment or other form, or not, whether this activity is referred to in legal acts as work or any other term, whether or not any other persons engaged in any activity in this establishment, enterprise or organisation exist, whether this activity is duties of a leader or not, whether the person is elected or appointed to the office, whether the activity is registered under any legal contract or other legal act, or performed without any legal contract or legal act; the notion ‘work’ used in the formula ‘work in business, commercial and other private establishments or enterprises’ of Paragraph 1 of Article 60 of the Constitution also comprises any other private profit-making activity, as well as any profit-making activity engaged in without establishing an enterprise, establishment or organisation.”

Thus, Item 13.6 of the Constitutional Court ruling of 1 July 2004 provides the construction of the notion “duties”, which is used in the formula “duties in State institutions and organisations” of Paragraph 1 of Article 60 of the Constitution, and of the notion “work”, which is used in the formula “work in business, commercial and other private establishments or enterprises” of the same paragraph of Article 60 of the Constitution. In the said item of the ruling the notions “duties” and “work” are construed without taking into consideration the time when respective activity may be performed—whether during the work time of a Member of the Seimas, or during his rest time.

3. It needs to be mentioned that, in its decision of 10 February 2005, the Constitutional Court construed certain provisions of the Constitutional Court ruling of 1 July 2004, inter alia the statements of Item 13.6 of Chapter II of the reasoning part of this ruling. In the said decision the Constitutional Court construed that the statement “the notion ‘work’ used in the formula ‘work in business, commercial and other private establishments or enterprises’ of Paragraph 1 of Article 60 of the Constitution also comprises any other private profit-making activity, as well as any profit-making activity engaged in without establishing an enterprise, establishment or organisation” of the second paragraph of Item 13.6 in Chapter II of the reasoning part of the Constitutional Court ruling of 1 July 2004 does not mean that any activity, which can be described as farming, is by itself incompatible with the constitutional legal status of a Member of the Seimas (if it has not turned into a business, commerce or any other activity prohibited to a Member of the Seimas by the Constitution). In addition, in the same decision the Constitutional Court also construed that the statements of Items 12, 13.1, 13.5, 13.6 and 13.9 of Chapter II of the reasoning part of the Constitutional Court ruling of 1 July 2004 concerning the incompatibility of the duties of a Member of the Seimas with other duties and work mean that, under the Constitution, there may not be any such legal situation where a Member of the Seimas is the person who has not terminated his employment relations with a certain state or municipal enterprise, establishment, organisation, or a private enterprise, establishment, organisation, or a certain public organisation, trade union, political party, association or other union (regardless of its title), but is granted holiday therein or is allowed, in any other way, not to perform respective work or not to perform respective activities temporarily (for the period when he discharges the duties of a Member of the Seimas), or discharging of his powers (duties) is suspended in that enterprise, establishment, organisation, or a certain public organisation, trade union, political party, association or other union (regardless of its title).

4. It has been mentioned that no official constitutional doctrinal provision of a Constitutional Court ruling or its other final act may be construed in isolation, by ignoring its meaning and systemic links with the other official constitutional doctrinal provisions set forth in that Constitutional Court ruling or its other final act, in other Constitutional Court acts, as well as with other provisions of the Constitution.

The formula of Item 13.6 of Chapter II of the reasoning part of the Constitutional Court ruling of 1 July 2004, the construction whereof, in the aspect indicated, is requested by the petitioner, may not be construed separately from the other provisions of the Constitutional Court ruling of 1 July 2004 and from the other provisions of Constitutional Court final acts that pertain to the constitutional legal status of a Member of the Seimas. In this context one needs to mention the following provisions of the Constitutional Court ruling of 1 July 2004 as well as its decision of 10 February 2005:

– “<...> The civil Nation, which has entrusted the management of common matters as well as representation of the Nation and the state to the persons who make decisions important to the society and the state due to the office they hold or the mandate they have acquired, must be protected from arbitrariness of state officials, from their actions based on their personal or group interests instead of the interests of the Nation and the State of Lithuania, from the use of their status for their own, their close relatives’ or other persons’ private benefit. <...> Under the Constitution, the legislator has a duty to establish, by legal acts, such legal regulation which would ensure that state officials, who perform their functions while exercising state power, and all the persons, who make decisions important to the society and the state, are able to properly execute their authority, so that contraposition of public and private interests would be avoided, that no legal conditions would be created for state officials, who perform their functions while exercising state power, and all the persons, who make decisions important to the society and the state, to act in the private or group interests, instead of the interests of the Nation and the State of Lithuania, and use their status for the benefit of their own, their close relatives or other persons, so that it might be possible to effectively control how state officials, who perform their functions while exercising state power, and all the persons, who make decisions important to the society and the state, follow the said requirements, and that the above-mentioned state officials and other persons be held liable pursuant to the Constitution and laws in case they do not follow these requirements” (Item 2 of Chapter II of the reasoning part of the Constitutional Court ruling of 1 July 2004);

– “<...> the continuity of the activity of the Seimas implies the continuity of the activity of a Member of the Seimas as a representative of the Nation. Under the Constitution, legal acts should establish such a structure and procedure of work of the Seimas, as well as the legal status of a Member of the Seimas, which would provide for an opportunity for each Member of the Seimas to execute his constitutional duty to constantly participate at the work of the Seimas, the representation of the Nation, and to incessantly perform his constitutional powers, as a representative of the Nation.

It needs to be emphasised that the Constitution treats a Member of the Seimas as a professional politician, i.e. as a representative of the Nation, whose work at the Seimas is his professional activity” (Item 5 of Chapter II of the reasoning part of the Constitutional Court ruling of 1 July 2004);

– “<...> It should be especially emphasised that, according to the Constitution, neither during the rest period, nor the leisure time, nor during annual paid holidays a Member of the Seimas loses his status of a representative of the Nation: as at work during the Seimas sessions, the sittings of the Seimas committees or other structural sub-units, which take place not during the session of the Seimas, during the rest period, the leisure time or during annual paid holidays, he retains his status as a representative of the Nation, while the Seimas, even though the representatives of the Nation are on holiday, does not cease being the representation of the Nation and the institution of the legislative power” (Item 6 of Chapter II of the reasoning part of the Constitutional Court decision of 10 February 2005);

– “<...> certain constitutional duties of a Member of the Seimas are formulated in the Constitution as certain limitations applied in regard to a Member of the Seimas—the incompatibility of the duties of a Member of the Seimas with other duties or a job, save the exceptions established in the Constitution, and a prohibition for a Member of the Seimas against receiving other remuneration, except the cases established in the Constitution; these limitations are meant to ensure the free mandate of a Member of the Seimas, as a representative of the Nation, as well as the continuity of his work at the Seimas and other parliamentary activities. When evaluating the entirety of limitations entrenched in the Constitution in regard to a Member of the Seimas, it needs to be held that in this respect the constitutional legal status of a Member of the Seimas, a representative of the Nation, is different in essence from the constitutional legal status of other citizens and it determines the particularities of implementation of the particular rights of a person entrenched in the Constitution, which a Member of the Seimas enjoys as a human being and citizen.

<...> The purpose of the legal regulation established in Paragraph 1 of Article 60 of the Constitution is to ensure the free mandate of a Member of the Seimas as a representative of the Nation, as well as the continuity of his work at the Seimas and other parliamentary activities, to guarantee that a Member of the Seimas shall act in the interests of the Nation and the State of Lithuania rather than their personal interests, the interests of a group, or the interests of the political parties or political organisations, public or other organisations, and other persons, which nominated or supported the candidate to the office of a Member of the Seimas, the interests of the territorial communities or electors of the electoral district of elections of a Member of the Seimas, that a Member of the Seimas will not use his status and the free mandate for the private benefit or the benefit of his close relatives or other persons, and that each Member of the Seimas will have an opportunity to exercise his constitutional duty to constantly participate at the work of the Seimas, the representation of the Nation, and to incessantly perform his constitutional powers, as a representative of the Nation. This purpose would never be reached or conditions preventing the accomplishment of this purpose would be created if a Member of the Seimas had an opportunity to hold another office or to be engaged in other work, with the exception of the offices expressis verbis specified in the Constitution, as well as the offices which may be held upon the implication of the Constitution; this purpose would never be reached or conditions preventing the accomplishment of this purpose would also be created if a Member of the Seimas received remuneration other than that specified in the Constitution” (Item 12 of Chapter II of the reasoning part of the Constitutional Court ruling of 1 July 2004);

– “<...> the notions “duties” and “work” used in Paragraph 1 of Article 60 of the Constitution are constitutional notions, they bear the constitutional content and may not be construed only by following the definition of similar notions in laws and other legal acts (for example, legal acts regulating labour or state service relations). In this regard the duties and work specified in Paragraph 1 of Article 60 of the Constitution are not to be linked only with employment or similar contracts or agreements” (Item 13.5 of Chapter II of the reasoning part of the Constitutional Court ruling of 1 July 2004);

– “<...> From the incompatibility of the duties of a Member of the Seimas with work at business, commercial or other private establishments or enterprises, as well as with work at the establishments or enterprises the founder, owner, co-owner or shareholder of which is the Member of the Seimas, which is established in Paragraph 1 of Article 60 of the Constitution, a prohibition originates against engaging, in any form, in business, commerce or other profit-making private activity. When deciding whether a certain activity of a Member of the Seimas is engagement in business, commerce, etc., every time account should be taken of the content of the activity and all the other circumstances” (Item 13.7.1 of Chapter II of the reasoning part of the Constitutional Court ruling of 1 July 2004);

– “<...> the principle of incompatibility of the duties of a Member of the Seimas with other offices or work means that the duties of a Member of the Seimas are incompatible with any other activity (taking office, performing work, performing service, fulfilment of other functions, performing other tasks, holding a so-called office of honour) in a state establishment, enterprise, organisation of Lithuania, or a municipal establishment, enterprise, organisation, or an international establishment, enterprise, organisation, or a private establishment, enterprise, organisation, or representation of such an establishment, enterprise, organisation, with the exception of the duties expressis verbis or implicitly set down in the Constitution: 1) the duties of a Member of the Seimas specified in Paragraph 1 of Article 60 of the Constitution, which comprise the office of the Speaker of the Seimas and the Deputy Speaker of the Seimas, the office of a Member of the Seimas in the Seimas which is taken by a Member of the Seimas pursuant to the Statute of the Seimas in the governing body of the Seimas or when leading a structural sub-unit of the Seimas, as well as other offices which may be taken in the Seimas only by a Member of the Seimas, also the offices in inter-parliamentary and other international institutions which may only be taken by a Member of the Seimas; 2) the office of the Prime Minister or Minister specified in Paragraph 2 of Article 60 of the Constitution; 3) such offices in the unions specified in the Constitution, which are linked with his membership in a respective union” (Item 13.9 of Chapter II of the reasoning part of the Constitutional Court ruling of 1 July 2004);

– “Another limitation imposed on a Member of the Seimas by Article 60 of the Constitution is a prohibition for a Member of the Seimas against receiving any other remuneration, save the exceptions expressis verbis established or implicitly provided for in the Constitution” (Item 14 of Chapter II of the reasoning part of the Constitutional Court ruling of 1 July 2004);

– “It needs to be stressed that the notion ‘remuneration’ used in Paragraph 3 of Article 60 of the Constitution is a constitutional notion, it bears the constitutional content and may not be construed only by following the definition of analogous notions in laws and other legal acts (for example, legal acts regulating labour or state service relations). In this regard the remuneration specified in Paragraph 3 of Article 60 of the Constitution is not to be linked only with the remuneration paid under employment or similar contracts or agreements; the content of the notion ‘remuneration’ used in Paragraph 3 of Article 60 of the Constitution is much broader, this notion comprises monetary payments of various types and provision of other material benefit to a Member of the Seimas” (Item 14.1 of Chapter II of the reasoning part of the Constitutional Court ruling of 1 July 2004);

– “In conclusion it needs to be held that the prohibition for a Member of the Seimas against receiving any remuneration other than that of a Member of the Seimas, which is established in the Constitution, means that a Member of the Seimas may not receive any other remuneration, with the exception of the remuneration expressis verbis specified or implicitly provided for in the Constitution: 1) remuneration for the duties of a Member of the Seimas in the Seimas which comprise the office of the Speaker of the Seimas and the Deputy Speaker of the Seimas, such offices of a Member of the Seimas in the Seimas which are taken by a Member of the Seimas pursuant to the Statute of the Seimas in the governing body of the Seimas or when leading a structural sub-unit of the Seimas, as well as other offices which may be taken in the Seimas only by a Member of the Seimas, also the offices in inter-parliamentary and other international institutions which may be taken only by a Member of the Seimas; 2) remuneration for holding the office of Prime Minister or Minister; 3) remuneration for creative activities engaged by him not as by a subject of employment, service or similar relations” (Item 14.7 of Chapter II of the reasoning part of the Constitutional Court ruling of 1 July 2004).

5. While construing whether the formula “the notion ‘work’ used in the formula ‘work in business, commercial and other private establishments or enterprises’ of Paragraph 1 of Article 60 of the Constitution” of Item 13.6 of Chapter II of the reasoning part of the Constitutional Court ruling of 1 July 2004, the construction of which is requested by the petitioner, also comprises any private activity of a Member of the Seimas that is carried out in business, commercial and other private establishments or enterprises under a legal contract or any other type of contract, though, in the time free from sittings of the Seimas and without receiving, for that activity, any remuneration or any other types of monetary payments, it needs to be noted that, as it has been mentioned in this decision, under the official constitutional doctrine formulated in the Constitutional Court ruling of 1 July 2004, the notion “work” used in the formula “work in business, commercial and other private establishments or enterprises” of Paragraph 1 of Article 60 of the Constitution comprises any activity in a Lithuanian, foreign or international private establishment, enterprise or organisation, or representation of such an establishment, enterprise or organisation, if this activity is linked with performing work, taking office, performing service, fulfilment of other functions, performing other tasks, holding a so-called office of honour, etc. (including participation in collegial management, control and other bodies), irrespective of whether:

this activity is of permanent, temporary, or one-time (episodic) type,

this activity is remunerated in any payment or other form, or is not remunerated,

this activity is referred to in legal acts as work or any other term,

any other persons engaged in any activity in this establishment, enterprise or organisation exist or not,

this activity is duties of a leader or not,

the person is elected or appointed to the office,

the activity is registered under any legal contract or other legal act, or is performed without any legal contract or legal act.

It also needs to be noted that, as it was emphasised in the Constitutional Court decision of 10 February 2005, under the Constitution, neither during the rest period, nor the leisure time, nor during annual paid holidays a Member of the Seimas loses his status of a representative of the Nation.

Thus, it needs to be held that Paragraph 1 of Article 60 of the Constitution entrenches the prohibition for a Member of the Seimas against working in business, commercial and other private establishments or enterprises not only during his work at the Seimas or his other parliamentary activities, but also during the time free form work at the Seimas (during the rest period, leisure time, or annual paid holidays).

Alongside, it needs to be emphasised that, as mentioned, the purpose of the legal regulation established in Paragraph 1 of Article 60 of the Constitution is to ensure the free mandate of a Member of the Seimas as a representative of the Nation, as well as the continuity of his work at the Seimas and other parliamentary activities, to guarantee that a Member of the Seimas will act in the interests of the Nation and the State of Lithuania rather than their personal interests, the interests of a group, or the interests of the political parties or political organisations, public or other organisations, and other persons which nominated or supported the candidate to the office of a Member of the Seimas, the interests of the territorial communities or voters of the electoral district of elections of a Member of the Seimas, that a Member of the Seimas will not use his status and the free mandate for the private benefit or the benefit of his close relatives or other persons, and that each Member of the Seimas will have an opportunity to exercise his constitutional duty to constantly participate at the work of the Seimas, the representation of the Nation, as well as to incessantly perform his constitutional powers, as a representative of the Nation; this purpose would never be reached or conditions preventing the accomplishment of this purpose would be created if a Member of the Seimas had an opportunity also to hold another office or to be engaged in other work, with the exception of the offices expressis verbis specified in the Constitution, as well as the offices that may be held upon the implication of the Constitution.

6. Taking account of the arguments set forth, one is to draw a conclusion that the formula “The notion ‘work’ used in the formula ‘work in business, commercial and other private establishments or enterprises’ of Paragraph 1 of Article 60 of the Constitution” of Item 13.6 of Chapter II of the reasoning part of the Constitutional Court ruling of 1 July 2004 comprises any activity in a Lithuanian, foreign or international private establishment, enterprise or organisation, or representation of such an establishment, enterprise or organisation, if this activity is linked with performing work, taking office, performing service, fulfilment of other functions, performing other tasks, holding a so-called office of honour, etc. (including participation in collegial management, control and other bodies), irrespective of whether this activity is of permanent, temporary, or one-time (episodic) type, whether this activity is remunerated in any payment or other form, or not, whether this activity is referred to in legal acts as work or any other term, whether or not any other persons engaged in any activity in this establishment, enterprise or organisation exist, whether this activity is duties of a leader or not, whether the person is elected or appointed to the office, whether the activity is registered under any legal contract or other legal act, or performed without any legal contract or legal act, irrespective of the fact whether this activity is carried out during the work of a Member of the Seimas at the Seimas or his other parliamentary activities, or during his rest period, leisure time or annual paid holidays.

III

1. The petitioner inter alia requests to construe whether the statement “one of specific features of the freedom of creative activities of a Member of the Seimas is that a Member of the Seimas exercises this freedom not as a subject of employment, service or similar relations” of Item 14.6.3 of Chapter II of the reasoning part of the Constitutional Court ruling of 1 July 2004 means that a Member of the Seimas may not exercise the said right by entering into an author’s contract and by receiving remuneration for the work stipulated in the contract and performed.

2. The statement of Item 14.6.3 of Chapter II of the reasoning part of the Constitutional Court ruling of 1 July 2004, the construction whereof is requested by the petitioner, is a part of Item 14.6, wherein inter alia it was held:

14.6. <...> pursuant to Article 60 of the Constitution, a Member of the Seimas is not prohibited from receiving remuneration for creative activities.

14.6.1. When construing the constitutional concept of creative activities, it needs to be noted that Paragraph 1 of Article 42 of the Constitution provides that culture, science and research, and teaching are free, and Paragraph 3 of this article provides that the law shall protect and defend those spiritual and material interests of an author that are related to scientific, technical, cultural, and artistic work. According to the Constitution, creative activities are activities in the area of science, technology, culture or art, aimed at creating a certain result, i.e. qualitatively new, original and specific material or spiritual values of science, technology, culture or art, which have never existed before. Creative activities may be continuous, professional, and of one-time (episodic) type.

14.6.2. The concept of creative activities, which is established in the Constitution, is integral, its content does not depend inter alia upon a person, who is engaged in it. In this regard there is no difference between creative activities of a Member of the Seimas and creative activities of any other human being.

14.6.3. <...> the constitutional legal status of a Member of the Seimas, a representative of the Nation, determines particularities of implementation of certain rights of a person entrenched in the Constitution, which a Member of the Seimas enjoys as a human being and citizen.

<...> under the Constitution, the duties of a Member of the Seimas are incompatible with any other activity (taking offices, performing work, performing service, fulfilment of other functions, performing other tasks, holding a so-called office of honour) in a Lithuanian state, municipal, foreign or international establishment, enterprise, or organisation, as well as a private establishment, enterprise, organisation; or representation of such an establishment, enterprise, organisation, with the exception of the duties of a Member of the Seimas specified in Paragraph 1 of Article 60 of the Constitution, the office of the Prime Minister or Minister specified in Paragraph 2 of Article 60 of the Constitution, and the office in the societies, political parties or associations, or other unions that is linked with his membership in a respective association.

When systemically construing the provisions of Article 42 and Article 60 of the Constitution it needs to be held that creative activities of a Member of the Seimas are separated from employment, service or similar relations, from holding office in any establishment, enterprise or organisation.

Thus, one of specific features of the freedom of creative activities of a Member of the Seimas is that a Member of the Seimas exercises this freedom not as a subject of employment, service or similar relations.

14.6.4. Remuneration may be paid to an author for his creative activities. It is generally recognised that remuneration for creative activities is regulated by the norms relating to the rights of authors.”

Thus, Item 14.6 of the Constitutional Court ruling of 1 July 2004 provides the construction of the constitutional concept of creative activities.

3. It needs to be mentioned that, in Item 10 of Chapter III of the reasoning part of its decision of 15 January 2009, the Constitutional Court noted the following: “In its ruling of 1 July 2004, the Constitutional Court, while construing the right of a Member of the Seimas to receive remuneration for creative activities, which is entrenched in Paragraph 3 of Article 60 of the Constitution, emphasised that the concept of creative activities is to be related with an activity aimed at creating a piece of science, technology, culture or art; that one of specific features of the freedom of creative activities of a Member of the Seimas is that a Member of the Seimas exercises this freedom not as a subject of employment, service or similar relations; and that a Member of the Seimas has the right to receive remuneration only for the said creative activities.

A Member of the Seimas, while implementing his freedom of creative activities, must heed the constitutional status of the Member of the Seimas, as a representative of the Nation, and the legal and ethical imperatives arising therefrom, inter alia he must avoid the conflict between public and private interests.”

4. While construing, in the aspect indicated by the petitioner, the statement “one of specific features of the freedom of creative activities of a Member of the Seimas is that a Member of the Seimas exercises this freedom not as a subject of employment, service or similar relations” of Item 14.6.3 of Chapter II of the reasoning part of the Constitutional Court ruling of 1 July 2004, it needs to be noted that in the said ruling one does not employ the notion “author’s contract”; it also needs to be noted that the words “author’s contract” are not expressis verbis used in the text of the Constitution, either. The said notion is used and the content thereof is disclosed in the Republic of Lithuania Law on the Rights of Authors and Related Rights, also other laws and other legal acts. Consequently, the legal content of the said notion is defined not in the Constitution, but in legal acts of lower power.

It needs to be emphasised that it is impermissible to construe constitutional norms and principles on the basis of the legal acts adopted by the legislator and other law-making entities, as then the supremacy of the Constitution in the legal system would be denied (Constitutional Court rulings of 12 July 2001 and 1 July 2004, and decision of 10 February 2005).

It has been mentioned that, while construing its ruling, the Constitutional Court is bound both by the content of the part of resolution and that of reasoning of its ruling, also that the Constitutional Court must construe its ruling without changing its content.

The legal content of the notion “author’s contract”, which is used in laws and other legal acts, was not a matter of investigation in constitutional justice case No. 04/04, wherein the Constitutional Court has only held that remuneration for creative activities is regulated by the norms of law relating to the rights of authors.

Considering the fact that the Constitutional Court must construe its ruling without changing its content, that the notion “author’s contract” is not used in the Constitutional Court ruling of 1 July 2004, and that the legal content of this notion, which is defined in laws and other legal acts, was not a matter of investigation in constitutional justice case No. 04/04, the content thereof may not be construed in this decision of the Constitutional Court either.

5. Alongside, it needs to be noted that the statement “one of specific features of the freedom of creative activities of a Member of the Seimas is that a Member of the Seimas exercises this freedom not as a subject of employment, service or similar relations” of Item 14.6.3 of Chapter II of the reasoning part of the Constitutional Court ruling of 1 July 2004, when construed in the context of the constitutional legal status of the Member of the Seimas, the constitutional concept of creative activities as well as payment of remuneration for such activities, means that, under the Constitution, a Member of the Seimas may receive remuneration for creative activities, i.e. such activities which result in qualitatively new, original and specific material or spiritual values of science, technology, culture or art (a piece of creation), which have never existed before. In addition, creative activities of a Member of the Seimas are incompatible with any activity (taking office, performing work, performing service, fulfilment of other functions, etc.) in a Lithuanian state or municipal, foreign or international establishment, enterprise or organisation, also in a private establishment, enterprise or organisation; thus, a Member of the Seimas, while engaging in creative activities, may not violate the constitutional imperatives of limitation imposed on work activities of the Member of the Seimas, which arise from the Constitution, inter alia Paragraph 1 of Article 60 thereof.

The constitutional freedom of creative activities of a Member of the Seimas may be implemented inter alia by concluding a contract, however, it needs to be noted that there may not emerge any employment, service or similar relations on the basis of such a contract. It also needs to be noted that when deciding on the type of relations that have emerged between the contracting parties under a specific contract, one must assess not only the way the contract is named, but also the content thereof. Consequently, in each case it is necessary to individually assess whether such a contract is used to regulate the relations corresponding to the constitutional concept of creative activities.

Thus, it needs to be held that a Member of the Seimas may receive remuneration for creative activities, i.e. such activities which result in qualitatively new, original and specific material or spiritual values of science, technology, culture or art (a piece of creation), which have never existed before; however, as mentioned, creative activities of a Member of the Seimas are incompatible with any activity (taking office, performing work, performing service, fulfilment of other functions, etc.) in a Lithuanian state or municipal, foreign or international establishment, enterprise or organisation, also in a private establishment, enterprise or organisation; thus, a Member of the Seimas, while engaging in creative activities, may not violate the constitutional imperatives of limitation imposed on work activities of the Member of the Seimas, which arise from the Constitution, inter alia Paragraph 1 of Article 60 thereof.

Alongside, it needs to be noted that, as mentioned, a Member of the Seimas, while implementing his freedom of creative activities, must heed the constitutional status of the Member of the Seimas, as a representative of the Nation, and the legal and ethical imperatives arising therefrom, inter alia he must avoid the conflict between public and private interests.

6. Taking account of the arguments set forth, one is to draw a conclusion that the statement “one of specific features of the freedom of creative activities of a Member of the Seimas is that a Member of the Seimas exercises this freedom not as a subject of employment, service or similar relations” of Item 14.6.3 of Chapter II of the reasoning part of the Constitutional Court ruling of 1 July 2004 inter alia means that a Member of the Seimas may receive remuneration for creative activities, i.e. such activities which result in qualitatively new, original and specific material or spiritual values of science, technology, culture or art (a piece of creation), which have never existed before; the constitutional freedom of creative activities of a Member of the Seimas may be implemented inter alia by concluding a contract, however, there may not emerge any employment, service or similar relations on the basis of such a contract; consequently, a Member of the Seimas, while engaging in creative activities, may not violate the constitutional imperatives of limitation imposed on work activities of a Member of the Seimas, which arise from the Constitution, inter alia Paragraph 1 of Article 60 thereof.

IV

1. The petitioner inter alia requests to construe whether the statements “The formula ‘payment for educational or creative activities’ in Paragraph 1 of Article 113 of the Constitution reveals that the constitutional concepts of educational and creative activities are not identical, and that each of them has its own independent content. These concepts may not be identified, they are not synonyms, and none of them comprises the other. Educational activities in the Constitution are separated from creative activities: educational activities are linked with education, teaching and training at the educational and teaching establishments (including higher schools), meanwhile creative activities <...> are activities aimed at creating a piece of science, technology, culture or art” of Item 14.6.5 of Chapter II of the reasoning part of the Constitutional Court ruling of 1 July 2004 mean that the activities of a Member of the Seimas that are formalised under an author’s contract, where a Member of the Seimas delivers, in public, lectures created by himself and receives royalties for these lectures, are to be viewed as activities for which the Member of the Seimas may receive remuneration.

2. When construing, in the aspect indicated by the petitioner, the statements of Item 14.6.5 of Chapter II of the reasoning part of the Constitutional Court ruling of 1 July 2004, it needs to be noted that, in the Constitutional Court ruling of 1 July 2004, one does not use the notion “royalties”; it also needs to be noted that the word “royalties” is not expressis verbis used in the text of the Constitution, either. The said notion is used and the content thereof is disclosed in the Republic of Lithuania Law on the Rights of Authors and Related Rights, also other laws and other legal acts. Consequently, the legal content of the said notion is defined not in the Constitution, but in legal acts of lower power.

In this Constitutional Court decision it has been held that herein one may not construe the legal content of the notion “author’s contract”. On the grounds of analogous reasoning it needs to be held that this Constitutional Court decision may not cover the construction of the legal content of the notion “royalties”, either.

3. Alongside, it needs to be noted that the statements “The formula ‘payment for educational or creative activities’ in Paragraph 1 of Article 113 of the Constitution reveals that the constitutional concepts of educational and creative activities are not identical, and that each of them has its own independent content. These concepts may not be identified, they are not synonyms, and none of them comprises the other. Educational activities in the Constitution are separated from creative activities: educational activities are linked with education, teaching and training at the educational and teaching establishments (including higher schools), meanwhile creative activities <...> are activities aimed at creating a piece of science, technology, culture or art” of Item 14.6.5 of Chapter II of the reasoning part of the Constitutional Court ruling of 1 July 2004 clearly separate educational activities from creative activities.

It has been mentioned that in the Constitutional Court ruling of 1 July 2004, the construction of certain provisions whereof is requested by the petitioner, it was recognised that Paragraph 4 of Article 15 of the Statute of the Seimas (wording of 22 December 1998), to the extent that it provides that remuneration of a Member of the Seimas for educational activities is considered to be remuneration for creative activities, is in conflict with Paragraph 3 of Article 60 of the Constitution.

4. When construing, in the aspect indicated by the petitioner, the statements of Item 14.6.5 of Chapter II of the reasoning part of the Constitutional Court ruling of 1 July 2004, it needs to be noted that a lecture, as a rule, is a form of educational activities. By lectures one seeks to impart knowledge on the subject taught as well as to elucidate topical questions relating to that subject. Nevertheless, situations are possible where a lecture, due to its notable originality and qualitative novelty, has no analogues and may be treated as a piece of creation, the form of expression whereof inter alia can be either a written or verbal one.

Under the Constitution, a Member of the Seimas may receive remuneration for creative activities, i.e. such activities in the area of science, technology, culture or art that are aimed at creating a particular piece of creation, i.e. qualitatively new, original and specific material or spiritual values of science, technology, culture or art, which have never existed before. It needs to be noted that, as mentioned, one of specific features of the freedom of creative activities of a Member of the Seimas is that a Member of the Seimas exercises this freedom not as a subject of employment, service or similar relations.

Thus, it needs to be held that a Member of the Seimas may receive remuneration for a lecture corresponding to the concept of a piece of creation in cases where, in the course of the exercise of his freedom of creative activities, a Member of the Seimas, has created a piece of creation while not being in the position of a subject of employment, service or similar relations.

It has been mentioned that the constitutional freedom of creative activities of a Member of the Seimas may be implemented inter alia by concluding a contract, however, there may not emerge any employment, service or similar relations on the basis of such a contract. It needs to be noted that as regards the creative activities of a Member of the Seimas that are aimed at creating a lecture one may also enter into a contract, however, there may not emerge any employment, service or similar relations on the basis of such a contract. It also needs to be noted that when deciding on the type of relations that have emerged between the contracting parties under a specific contract, as it has been mentioned, one must assess not only the way the contract is named, but also the content thereof. Consequently, in each case it is necessary to individually assess whether such a contract is used to regulate the relations corresponding to the constitutional concept of creative activities.

5. Taking account of the arguments set forth, one is to draw a conclusion that the statements “The formula ‘payment for educational or creative activities’ in Paragraph 1 of Article 113 of the Constitution reveals that the constitutional concepts of educational and creative activities are not identical, and that each of them has its own independent content. These concepts may not be identified, they are not synonyms, and none of them comprises the other. Educational activities in the Constitution are separated from creative activities: educational activities are linked with education, teaching and training at the educational and teaching establishments (including higher schools), meanwhile creative activities <...> are activities aimed at creating a piece of science, technology, culture or art” of Item 14.6.5 of Chapter II of the reasoning part of the Constitutional Court ruling of 1 July 2004 mean that a Member of the Seimas may receive remuneration for a lecture corresponding to the concept of a piece of creation, which has been created while implementing the constitutional freedom of creative activities of a Member of the Seimas, and that as regards a lecture corresponding to the concept of a piece of creation, the form of expression whereof inter alia can be either a written or verbal one, one may enter into a contract, however there may not emerge any employment, service or similar relations on the basis of such a contract.

V

1. The petitioner inter alia requests to construe whether the provision “According to Item 7 of Article 63 of the Constitution, the powers of a Member of the Seimas become terminated if he does not resign from the employment which is incompatible with the duties of a Member of the Seimas” of Item 16 of Chapter II of the reasoning part of the Constitutional Court ruling of 1 July 2004 means that “the powers of a Member of the Seimas become automatically terminated upon the adoption of the Seimas resolution and without applying any special parliamentary procedures”.

2. The aforementioned provision of Item 16 of Chapter II of the reasoning part of the Constitutional Court ruling of 1 July 2004, the construction whereof is requested by the petitioner, is a part of Item 16, wherein it was held:

From the incompatibility of the duties of a Member of the Seimas with any other duties or work (save the exceptions provided for in the Constitution) as well as a prohibition for a Member of the Seimas against receiving any other remuneration (save the exceptions provided for in the Constitution), which are established in the Constitution, a duty arises for the legislator to establish, by the law, such legal regulation that would provide an opportunity to verify whether the limitations established in regard to a Member of the Seimas by Article 60 of the Constitution are followed. Such control must be efficient, public, and constant instead of a one-time type.

According to Item 7 of Article 63 of the Constitution, the powers of a Member of the Seimas become terminated if he does not resign from the employment which is incompatible with the duties of a Member of the Seimas.”

It needs to be mentioned that the provision of Item 16 of Chapter II of the reasoning part of the Constitutional Court ruling of 1 July 2004, the construction whereof is requested by the petitioner, was formulated also in Item 7 of Chapter VI of the reasoning part of the Constitutional Court decision of 10 February 2005, wherein it was held: “According to Item 7 of Article 63 of the Constitution, the powers of a Member of the Seimas become terminated if he does not resign from the employment which is incompatible with the duties of a Member of the Seimas. If it becomes clear that such a legal situation occurred where a Member of the Seimas, having taken the oath, has not resigned from the employment which is incompatible with the duties of a Member of the Seimas, under the Constitution, there appears a duty for the Seimas to terminate the powers of such a Member of the Seimas; the Seimas shall adopt a corresponding resolution thereon.”

3. While construing the provision of the Constitutional Court ruling of 1 July 2004, which is indicated by the petitioner, it needs to be noted that, under Article 63 of the Constitution, the powers of a Member of the Seimas cease: upon the expiration of the term of powers, or when the Seimas, elected in pre-term elections, convenes for the first sitting (Item 1), upon his death (Item 2), upon his resignation (Item 3), when he is recognised incapable by court (Item 4), when the Seimas revokes his mandate according to the procedure for impeachment proceedings (Item 5), when the election is recognised invalid, or if the law on election is grossly violated (Item 6), if he takes up or does not give up employment which is incompatible with the duties of a Member of the Seimas (Item 7), or if he loses citizenship of the Republic of Lithuania (Item 8).

Under Article 76 of the Constitution, the structure and procedure of activities of the Seimas is established by the Statute of the Seimas, which has the power of law. The Statute of the Seimas inter alia establishes the procedure for impeachment proceedings (Article 74 of the Constitution), whereby one may also revoke the mandate of a Member of the Seimas. It needs to be noted that Item 7 of Article 63 of the Constitution provides for an independent ground for loss of the mandate of a Member of the Seimas—where a Member of the Seimas takes up or does not give up employment which is incompatible with the duties of a Member of the Seimas; this implies a necessity to carry out the investigation of the activities of the Member of the Seimas in order it would be possible to ascertain respective circumstances and to establish the fact that the Member of the Seimas has taken up or has not given up the employment incompatible with the duties of a Member of the Seimas. Therefore, the legislator is obliged to set the procedure whereby fair legal proceedings would be ensured and it would be possible to properly investigate and establish whether a Member of the Seimas has taken (has not taken) up or has not given (has given) up the employment incompatible with the duties of the Member of the Seimas and which would enable to take a fair decision as to the mandate of the Member of the Seimas.

4. Taking account of the arguments set forth, one is to draw a conclusion that the provision “According to Item 7 of Article 63 of the Constitution, the powers of a Member of the Seimas become terminated if he does not resign from the employment which is incompatible with the duties of a Member of the Seimas” of Item 16 of Chapter II of the reasoning part of the Constitutional Court ruling of 1 July 2004, when construed alongside the provision “From the incompatibility of the duties of a Member of the Seimas with any other duties or work (save the exceptions provided for in the Constitution) as well as a prohibition for a Member of the Seimas against receiving any other remuneration (save the exceptions provided for in the Constitution), which are established in the Constitution, a duty arises for the legislator to establish, by the law, such legal regulation which would provide an opportunity to verify whether the limitations established in regard to a Member of the Seimas by Article 60 of the Constitution are followed” of Item 16 of Chapter II of the reasoning part of the same ruling, inter alia means that the legislator must establish such a procedure whereby fair legal proceedings would be ensured and it would be possible to properly investigate and establish whether a Member of the Seimas has taken (has not taken) up or has not given (has given) up the employment incompatible with the duties of the Member of the Seimas and which would enable to take a fair decision as to the mandate of the Member of the Seimas.

Conforming to Article 102 of the Constitution of the Republic of Lithuania and Articles 1 and 61 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 construe that the formula “The notion ‘work’ used in the formula ‘work in business, commercial and other private establishments or enterprises’ of Paragraph 1 of Article 60 of the Constitution” of Item 13.6 of Chapter II of the reasoning part of the ruling of the Constitutional Court of the Republic of Lithuania of 1 July 2004 (Official Gazette Valstybės žinios, 2004, No. 105-3894) comprises any activity in a Lithuanian, foreign or international private establishment, enterprise or organisation, or representation of such an establishment, enterprise or organisation, if this activity is linked with performing work, taking office, performing service, fulfilment of other functions, performing other tasks, holding a so-called office of honour, etc. (including participation in collegial management, control and other bodies), irrespective of whether this activity is of permanent, temporary, or one-time (episodic) type, whether this activity is remunerated in any payment or other form, or not, whether this activity is referred to in legal acts as work or any other term, whether or not any other persons engaged in any activity in this establishment, enterprise or organisation exist, whether this activity is duties of a leader or not, whether the person is elected or appointed to the office, whether the activity is registered under any legal contract or other legal act, or performed without any legal contract or legal act, irrespective of the fact whether this activity is carried out during the work of a Member of the Seimas at the Seimas or his other parliamentary activities, or during his rest period, leisure time or annual paid holidays.

2. To construe that the statement “one of specific features of the freedom of creative activities of a Member of the Seimas is that a Member of the Seimas exercises this freedom not as a subject of employment, service or similar relations” of Item 14.6.3 of Chapter II of the reasoning part of the ruling of the Constitutional Court of the Republic of Lithuania of 1 July 2004 (Official Gazette Valstybės žinios, 2004, No. 105-3894) inter alia means that a Member of the Seimas may receive remuneration for creative activities, i.e. such activities which result in qualitatively new, original and specific material or spiritual values of science, technology, culture or art (a piece of creation), which have never existed before; the constitutional freedom of creative activities of a Member of the Seimas may be implemented inter alia by concluding a contract, however, there may not emerge any employment, service or similar relations on the basis of such a contract; consequently, a Member of the Seimas, while engaging in creative activities, may not violate the constitutional imperatives of limitation imposed on work activities of a Member of the Seimas, which arise from the Constitution, inter alia Paragraph 1 of Article 60 thereof.

3. To construe that the statements “The formula ‘payment for educational or creative activities’ in Paragraph 1 of Article 113 of the Constitution reveals that the constitutional concepts of educational and creative activities are not identical, and that each of them has its own independent content. These concepts may not be identified, they are not synonyms, and none of them comprises the other. Educational activities in the Constitution are separated from creative activities: educational activities are linked with education, teaching and training at the educational and teaching establishments (including higher schools), meanwhile creative activities <...> are activities aimed at creating a piece of science, technology, culture or art” of Item 14.6.5 of Chapter II of the reasoning part of the ruling of the Constitutional Court of the Republic of Lithuania of 1 July 2004 (Official Gazette Valstybės žinios, 2004, No. 105-3894) inter alia mean that a Member of the Seimas may receive remuneration for a lecture corresponding to the concept of a piece of creation, which is created while implementing the constitutional freedom of creative activities of a Member of the Seimas, and that as regards a lecture corresponding to the concept of a piece of creation, the form of expression whereof inter alia can be either a written or verbal one, one may enter into a contract, however there may not emerge any employment, service or similar relations on the basis of such a contract.

4. To construe that the provision “According to Item 7 of Article 63 of the Constitution, the powers of a Member of the Seimas become terminated if he does not resign from the employment which is incompatible with the duties of a Member of the Seimas” of Item 16 of Chapter II of the reasoning part of the ruling of the Constitutional Court of the Republic of Lithuania of 1 July 2004 (Official Gazette Valstybės žinios, 2004, No. 105-3894), when construed alongside the provision “From the incompatibility of the duties of a Member of the Seimas with any other duties or work (save the exceptions provided for in the Constitution) as well as a prohibition for a Member of the Seimas against receiving any other remuneration (save the exceptions provided for in the Constitution), which are established in the Constitution, a duty arises for the legislator to establish, by the law, such legal regulation which would provide an opportunity to verify whether the limitations established in regard to a Member of the Seimas by Article 60 of the Constitution are followed” of Item 16 of Chapter II of the reasoning part of the same ruling, inter alia means that the legislator must establish such a procedure whereby fair legal proceedings would be ensured and it would be possible to properly investigate and establish whether a Member of the Seimas has taken (has not taken) up or has not given (has given) up the employment incompatible with the duties of the Member of the Seimas and which would enable to take a fair decision as to the mandate of the Member of the Seimas.

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: Armanas Abramavičius
                                                                      Toma Birmontienė
                                                                      Pranas Kuconis
                                                                      Kęstutis Lapinskas
                                                                      Zenonas Namavičius
                                                                      Ramutė Ruškytė
                                                                      Egidijus Šileikis
                                                                      Algirdas Taminskas
                                                                      Romualdas Kęstutis Urbaitis