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On the reorganisation of ministries

Case No. 19/98

 

 

THE CONSTITUTIONAL COURT OF

THE REPUBLIC OF LITHUANIA

 

R U L I N G

 

On the compliance of the Resolution of the Government of the Republic of Lithuania (No. 620) “On the Procedure for and the Term of the Reorganisation of the Former Ministry of Construction and Urban Planning, the Ministry of European Affairs, the Ministry of Communications and Informatics as well as Their Institutions” of 22 May 1998 with the Constitution of the Republic of Lithuania, Item 2 of Article 22, and Paragraph 2 of Article 29 of the Law on the Government of the Republic of Lithuania, Article 1 of the Republic of Lithuania’s Law on the Implementation of the Law on the Amendment to the Law on the Government and Article 4 of the Republic of Lithuania’s Law on the Institutions Financed from the Budget

Vilnius, 3 June 1999

 

The Constitutional Court of the Republic of Lithuania, composed of the Justices of the Constitutional Court: Egidijus Jarašiūnas, Egidijus Kūris, Zigmas Levickis, Augustinas Normantas, Vladas Pavilonis, Jonas Prapiestis, Vytautas Sinkevičius, Stasys Stačiokas, and Teodora Staugaitienė

The court reporter—Daiva Pitrėnaitė

Seimas members Algirdas Butkevičius, Česlovas Juršėnas, and Petras Papovas, acting as the representatives of a group of Seimas members, the petitioner

Ramutė Ruškytė, Head of the Division for Legal Affairs and Law and Order of the Office of the Government, and Edmundas Žilevičius, Vice-Minister of Finance of the Republic of Lithuania, acting as the representatives of the Government of the Republic of Lithuania, the party concerned

The Constitutional Court of the Republic of Lithuania, pursuant to Paragraph 1 of Article 102 of the Constitution of the Republic of Lithuania and Paragraph 1 of Article 1 of the Law on the Constitutional Court of the Republic of Lithuania, on 12 May 1999, in its public hearing, considered case No. 19/98 subsequent to the petition submitted to the Constitutional Court by a group of Seimas members, the petitioner, requesting an investigation into whether the Resolution of the Government of the Republic of Lithuania (No. 620) “On the Procedure for and the Term of the Reorganisation of the Former Ministry of Construction and Urban Planning, the Ministry of European Affairs, the Ministry of Communications and Informatics as well as Their Institutions” of 22 May 1998 was in compliance with the Constitution of the Republic of Lithuania, the Law on the Government, and the Law on the Implementation of the Law on the Amendment to the Law on the Government and the Law on the Institutions Financed from the Budget.

The Constitutional Court

has established:

I

On 22 May 1998, the Government adopted the Resolution (No. 620) “On the Procedure for and the Term of the Reorganisation of the Former Ministry of Construction and Urban Planning, the Ministry of European Affairs, the Ministry of Communications and Informatics as well as Their Institutions” (Official Gazette Valstybės žinios, 1998, No. 48-1320; hereinafter referred to as the Government Resolution).

A group of Seimas members have applied to the Constitutional Court with a petition requesting an investigation into whether certain provisions of the aforesaid resolution were in conformity to the Constitution and certain laws.

II

The request is grounded on the following arguments.

1. The Constitution (Item 8 of Article 67), as well as the Law on the Government (Articles 22 and 29), mentions only the establishment and abolishment of ministries, meanwhile, Item 1 of the Government Resolution, besides, stipulates:

1. In the course of the reorganisation of the abolished Ministry of Construction and Urban Planning <…>:

1.5. to form this commission for the implementation of the reorganisation of the abolished Ministry of Construction and Urban Planning <…>.

1.6. to commission the commission pointed out in Item 1.5 <...> to solve the other questions linked with the reorganisation of the former Ministry of Construction and Urban Planning.”

Analogous provisions are also established in Item 2 (concerning the abolished Ministry of Communications and Informatics) and Items 5 and 6 (concerning the abolished Ministry of European Affairs).

It is noted in the petition that the Government Resolution was adopted in the course of the implementation of Article 2 of the Law on the Implementation of the Law on the Amendment to the Law on the Government of 28 April 1998 (hereinafter referred to as the Law on the Implementation of the Law) and implementing the Seimas Resolution “On Unified Coordination of Measures Connected with the Integration of Lithuania into the European Union” which was adopted on the same day. Without disputing whether the wording “implementing the Seimas Resolution” should be considered a correct one, the petitioner maintains that the said resolution mentions only one ministry (“<…> to establish a special institution under the Government on the basis of the reorganised Ministry of European Affairs <…>”). Meanwhile, under the Law on the Implementation of the Law three ministers are abolished (Article 1), while the Government is proposed (Article 2) to establish the procedure for and the term of the implementation of Article 1, and to establish an institution under the Government responsible for the solution of questions connected with the integration of Lithuania into the European Union.

The procedure for reorganisation of the institutions financed from the budget (ministries including) is provided for by the Law on the Institutions Financed from the Budget. Article 4 of the said law provides: “The Institutions Financed from the Budget shall be reorganised or liquidated by their founders under the procedure established by the Government of the Republic of Lithuania provided the laws do not provide otherwise.” It is established in both the Constitution and the Law on the Government that the founder of ministries is the Seimas, however, it neither undertook to reorganise the ministries by itself nor commissioned the Government to do so.

The petitioner points out that under Article 22 of the Law on the Government, the Government “shall execute the laws and the resolutions of the Seimas on implementation of laws”. Thus, the Government, by undertaking to reorganise the ministries abolished by the Seimas, overstepped its powers, therefore, Items 1, 2, 5, and 6 of the Government Resolution contradict Articles 67 and 94 of the Constitution, the Law on the Government, the Law on the Implementation of the Law on the Amendment to the Law on the Government, and the Law on the Institutions Financed from the Budget.

2. Item 8 of the Government Resolution provides: “The Ministry of Finance must reapportion the appropriations, which were previously allotted to the former Ministry of European Affairs, the Ministry of Communications and Informatics and the Ministry of Construction and Urban Planning, as well as the Department of Communal Economy which was formerly under the Ministry of Construction and Urban Planning, respectively to the Ministry of Environmental Protection, the Ministry of Public Administration Reforms and Municipal Affairs, the European Committee under the Government of the Republic of Lithuania, the Ministry of Transport, the Ministry of Economy, the Ministry of Foreign Affairs, by taking account of the resolutions of the Government of the Republic of Lithuania wherein the maximum permissible number of the staff is established.”

The petitioner comes to the conclusion that the Government, by means of its resolution, i.e. by substatutory act, changed the 1998 budget law. Meanwhile, Article 132 of the Constitution provides for a different procedure: “During the budget year the Seimas may change the budget. It shall be changed according to the same procedure by which it was drafted, adopted and approved.” This means, in particular, that the Government submits a respective draft law to the Seimas, while the Seimas (and only the Seimas alone) approves the budget or amends the budget law.

The petitioner believes that Item 8 of the Government Resolution contradicts Article 132 of the Constitution and the Law on the Government.

III

In the course of the preparation of the case for the Constitutional Court hearing, an explanation by the representatives of the party concerned Ramutė Ruškytė, Head of the Division for Legal Affairs and Law and Order of the Office of the Government, and Edmundas Žilevičius, Vice-Minister of Finance of the Republic of Lithuania, was received.

It is maintained in the explanation that, executing Article 2 of the Law on the Implementation of the Law and the Seimas Resolution, the Government redistributed the functions performed by the former Ministry of European Affairs, the Ministry of Communications and Informatics and the Ministry of Construction and Urban Planning among other ministries and Government institutions. Due to these lawful actions of the Government respective appropriations of the State budget were reapportioned. Conforming to the provisions of Article 10 of the Republic of Lithuania’s Law on the Approval of the Financial Indicators of the 1998 State Budget and Those of the Municipal Budgets, the confirmed funds were respectively reapportioned, however, the total amount of the appropriations of the State budget remained unchanged. The representatives are of the opinion that the Government Resolution is in compliance with the Constitution and the aforementioned laws.

IV

In the course of the judicial investigation, the representative P. Papovas explained that the Seimas established by itself regarding ways when a ministry will cease to exist, i.e. that this will be done by way of abolishment but not that of reorganisation. Under Article 1 of the Law on the Implementation of the Law three ministries were abolished. It was provided by Article 2 of the said law that until 1 May the Government must establish the procedure for the implementation of Article 1. There are 14 but not 17 ministries on the list of the ministries established in the Law on the Government in its new wording, because 3 ministries have been abolished, or, in other words, they no longer exist. Meanwhile, the Government, even though it recognises that the ministries are abolished, in its Resolution reorganises them, i.e. it redistributes their functions, but, under Article 37 of the Civil Code, it is possible to reorganise only existing institutions. The Government had only to distribute the property and submit a draft law on the utilisation and reapportionment of budgetary funds, i.e. that on the specification of the 1998 State budget, to the Seimas. The money was reapportioned by the Seimas, meanwhile, the appropriations to the ministries were allocated by the Seimas, therefore, under the Constitution, the appropriations ought to have been changed by the same procedure as they were allocated.

The representative of the petitioner Č. Juršėnas explained in the course of the judicial investigation that the Lithuanian parliament has faced the question regarding ministries many a time, as neither the Constitution nor the Law on the Government mentions their reorganisation. The parliament has discussed redistribution of the functions of abolished ministries for several times. The redistribution was authorised by law. In 1994, some ministries were being abolished and the Seimas considered the question of their reorganisation. By means of the law of 12 December 1996, respective ministries were abolished. The Government did not carry out any reorganisation. Abolishment commissions were formed, meanwhile, the Government by its 7 March 1997 resolution redistributed the property. Thus, there is a precedent already, and this was done by the same Government whose resolution is impugned.

Liquidation and abolishment are considered as one and the same thing. On 10 May 1996, the Government adopted the Resolution (No. 554) “On the Approval of the Procedure for the Reorganisation and Liquidation of the Institutions Financed from the Budget”. Under this procedure, the institutions are reorganised when they are amalgamated, split etc., while they are liquidated when their all activities are ceased. These are two different matters which are not singled out in the Government Resolution. Reorganising the abolished ministries, the Government overstepped its powers. Under Article 15 of the Law on Public Organisations, reorganisation is the restructuring of a public organisation as a legal person without the liquidation procedure. There is not any other interpretation concerning reorganisation.

The representative of the petitioner asserted that the budget right is the great right of the parliament determining the principle of separation of powers. The Government may only submit a draft budget. After the Seimas has passed a corresponding law, the Government must execute it. The law on the budget is a particular one. By means of this law, particular amounts of appropriations are established which may only be changed by decision of the Seimas. In Lithuania there is not delegated legislation, therefore, the Seimas may not transfer its powers to the Government.

The representative of the petitioner A. Butkevičius explained in the course of the judicial investigation that Item 8 of the Government Resolution grants the right to the Ministry of Finance to redistribute the appropriations of the budget, which were formerly given to the abolished ministries as well as the Department of Communal Economy, respectively to the Ministry of Environmental Protection, the Ministry of Public Administration Reforms and Municipal Affairs, the Ministry of Economy, the Ministry of Foreign Affairs, and the European Committee under the Government of the Republic of Lithuania. By a substatutory act the government changed the law on the budget. Thus, Article 132 of the Constitution, by which during the budget year the Seimas may change the budget, is violated. The Government may merely submit a draft law to the Seimas. It is the Seimas that approves the budget or amends the law on the budget. Article 17 of the Law on Budgeting also provides that the Government considers a State draft budget and submits it to the Seimas by indicating the total amount of revenues and the apportionment thereof according to the types of taxes and revenues, as well as the appropriations from the budget for various institutions and programmes. Thus, not only the total amount of appropriations is established by law but also the appropriations are distributed through special appropriations managers. A certain amount from the appropriations is also allocated to the appropriate manager for maintenance of the buildings and acquisition of necessary items. Upon liquidation of a ministry, a certain amount of appropriations is transferred to another one, thus, part of the expenses are economised. Therefore, the Government changed the State budget law by a substatutory act.

V

The petitioner points out in his request that the Government, by reorganising the abolished ministries by the said resolution, overstepped its powers.

Taking account of the fact that the petitioner did not indicate as to which particular norms of the Constitution the impugned Government Resolution, in his opinion, contradicts the Constitution, the Constitutional Court will investigate its compliance with only such norms of the Constitution and the laws which regulate the relations pointed out in the request of the petitioner, i.e. the compliance of Items 1, 2, 5, and 6 of the impugned Government Resolution with Item 8 of Article 67, Item 2 of Article 94 of the Constitution, Item 2 of Article 22, Paragraph 2 of Article 29 of the Law on the Government, Article 1 of the Law on the Implementation of the Law on the Amendment to the Law on the Government, and Article 4 of the Law on the Institutions Financed from the Budget.

VI

In the course of the judicial investigation, the representative of the party concerned R. Ruškytė explained that Article 4 of the Law on the Institutions Financed from the Budget provides that the institutions financed from the budget shall be reorganised or liquidated by their founders under the procedure established by the Government provided the laws do not provide otherwise. Due to this the Seimas, on 28 April 1998, passed a special law which provided for a different procedure. Adopting the law, the Seimas decided not the question of liquidation or reorganisation of ministries but that of their abolishment. Therefore, the Government could not violate the Law on the Institutions Financed from the Budget as far as liquidation is concerned as the Government did not decide the question of liquidation.

Article 1 of the Law on the Implementation of the Law prescribes that the ministries shall be abolished. Implementing this law, the Government shall establish the procedure for and term of its implementation. Under this law the ministries shall be abolished, meanwhile, the decision as for the ways and procedure for the performance of this action is commissioned for the Government. The representative of the party concerned is of the opinion that this is also confirmed by Item 2 of Article 2 of the Law on the Implementation of the Law wherein it is particularly pointed out to the Government as to how it must abolish the Ministry of European Affairs which was indicated in Article 1 of the said law. It is left for the Government to adopt decisions as far as the ways of abolishment of the other two ministries are concerned. The Government scrupulously followed the Law on the Implementation of the Law and, as it was conforming to Articles 67 and 94 of the Constitution, did not violate any law.

According to the representative of the party concerned, the Civil Code permits reorganising only an existing legal person. The notions abolishment of a ministry and reorganisation have a somewhat different content than in the case of liquidation of a legal person. Reorganisation is provided for by the Civil Code. Besides, the norms of private law ought not to be applied to public relations. The ministries existed at that time, because the law was adopted on 28 April, meanwhile, the Government was commissioned to establish the procedure until 1 May. Such terms are unrealistic. Abolishment is not a single action but a procedure. The functions of a particular ministry may not cease, i.e. they must be transferred to other institutions. This process is implemented consistently, therefore, the Seimas commissioned the Government to do this, as, under Article 94 of the Constitution, the Government shall administer the affairs of the country.

In the opinion of the representative of the party concerned, the commission of the Seimas concerning redistribution of budget appropriations was given because the functions of the abolished ministries were transferred to respective ministries. For the latter, the amounts of appropriations were increased. The Government was following Article 94 of the Constitution and was scrupulously executing Item 4 of Article 10 of the Law on the Approval of the Financial Indicators of the 1998 State Budget and Those of the Municipal Budgets which grants the right to the Government or its authorised institution correspondingly to change the confirmed appropriations. The Government implemented this right not by changing the budget but performing mere technical redistribution of confirmed appropriations in the course of the maintenance of the budget. Passing the 1 December 1998 Law on the Amendment to and Supplementation of the Budget, the Seimas approved this redistribution of appropriations.

In the court hearing the representative of the party concerned E. Žilevičius explained that the appropriations were redistributed without changing the general limits of the budget. It is only the procedures of the maintenance of the budget that were performed. The reorganisation took place for 3–4 months. During this time, the amounts of budget appropriations concerning the reorganisation and abolishment of the ministries were formulated and particularised in the course of the particularisation of the 1998 budget, they were submitted to the Seimas and the Seimas confirmed them. The Seimas delegated temporarily its right to the Government, and, after that, by passing the law, approved the amounts which had been commissioned to the Ministry of Finance by the Government Resolution.

The Constitutional Court

holds that:

I

On the compliance of Items 1, 2, 5 and 6 of the Government Resolution (No. 620) “On the Procedure for and the Term of the Reorganisation of the Former Ministry of Construction and Urban Planning, the Ministry of European Affairs, the Ministry of Communications and Informatics as well as Their Institutions” of 22 May 1998 with Item 8 of Article 67 and Item 2 of Article 94 of the Constitution, Item 2 of Article 22 and Paragraph 2 of Article 29 of the Law on the Government, Article 1 of the Law on the Implementation of the Law on the Amendment to the Law on the Government and Article 4 of the Law on the Institutions Financed from the Budget.

1. On 28 April 1998, the Seimas adopted the Republic of Lithuania’s Law on the Amendment to the Law on the Government by which the Law on the Government was set forth in its new wording. The Law on the Government went into effect on 1 May 1998. Under the list of ministries established in Paragraph 1 of Article 29, there shall be 14 ministries in the Republic of Lithuania (under the previously effective Law on the Government, there were 17 of them).

On the same day the Law on the Implementation of the Law on the Amendment to the Law on the Government was adopted. Like the Law on the Government, it came into force on 1 May 1998. Under Article 1 of this law, the Ministry of European Affairs, the Ministry of Communications and Informatics and the Ministry of Construction and Urban Planning shall be abolished. Article 2 of the Law on the Implementation of the Law provides:

The Government shall:

(1) establish the procedure for the implementation of Article 1 of this law and its term until 1 May 1998;

(2) instead of the former Ministry of European Affairs, establish a special institution under the Government responsible for the solution of questions of the integration of Lithuania into the European Union.”

2. In the Resolution (No. 620) “On the Procedure for and the Term of the Reorganisation of the Former Ministry of Construction and Urban Planning, the Ministry of European Affairs, the Ministry of Communications and Informatics as well as Their Institutions” of 22 May 1998, the Government established as to how Article 2 of the Law on the Implementation of the Law and the Seimas Resolution “On the Unified Coordination of the Measures Connected with the Integration of Lithuania into the European Union” of 28 April 1998 must be executed. It is pointed out in the Resolution that this must be done “in the course of the reorganisation of the abolished Ministry of Construction and Urban Planning” (Item 1), “in the course of the reorganisation of the abolished Ministry of Communications and Informatics” (Item 2), by establishing “the European Committee under the Government of the Republic of Lithuania on the basis of the reorganised Ministry of European Affairs” (Item 5), and “in the course of the reorganisation of the abolished Ministry of European Affairs into the European Committee under the Government of the Republic of Lithuania” (Item 6).

3. Paragraph 1 of Article 5 of the Constitution provides: “In Lithuania, the powers of the State shall be exercised by the Seimas, the President of the Republic and the Government, and the Judiciary.” This constitutional norm establishes the principle of the separation of powers which is later particularised in other articles of the Constitution by determining the competence of every branch of State power as well as their interrelations.

In its rulings (those of 26 October 1995, 10 January 1998, 21 April 1998 etc.), the Constitutional Court has noted many a time that the principle of the separation of powers means that the legislative, executive and judicial powers must be separated and sufficiently independent, but also there must be a balance between them. Every power is exercised through its institutions which are empowered with the competence corresponding their purpose. The particular content of the competence of the institution depends on its place in the system of the institutions of state authority.

After the functions and empowerment of the institutions of the legislative and executive powers had been established in the Constitution, their interaction was also provided for. Item 8 of Article 67 of the Constitution contains such a norm: the Seimas shall “upon the recommendation of the Government, establish or abolish ministries of the Republic of Lithuania”. These powers, linked with the establishment and abolishment of ministries, are repeated in Paragraph 2 of Article 29 of the Law on the Government. Besides, it is provided therein that on the recommendation of the Government, the ministries shall be founded and abolished by the Seimas which in this connection enacts a law. The Law on the Implementation of the Law of 28 April 1998 is precisely of such nature, by means of Article 1 whereof three ministries are abolished.

4. Ministries are institutions of State governance enjoying a special competence. By establishing or abolishing them, one attempts to organise administration in various spheres. A ministry fulfils the functions of State governance in the sphere established for it by means of laws and other legal acts and in this sphere it exercises the State policy. Fulfilling their functions, ministries inevitably participate not only in governance, but also other legal relations of varied nature (property, employment, etc.). Ministries are legal persons.

In Item 8 of Article 67 of the Constitution the right of the Seimas is entrenched to establish and abolish ministries. The implementation of these powers of the Seimas is bound by the concrete powers of the Government which are enshrined in the Constitution: in case the Government does not submit a particular proposal, the Seimas may not adopt a decision whether to establish or abolish a ministry. Thus, this norm of the Constitution ensures the balance between the legislative and executive powers.

5. On 20 April 1998, the Government submitted a draft Law on the Implementation of the Law on the Amendment to the Law on the Government (No. 1138(2)). One of the alternatives of Article 1 of the said draft law was a proposal to abolish three ministries (the Ministry of European Affairs, the Ministry of Communications and Informatics, and the Ministry of Construction and Urban Planning).

Under the list of ministries established in Paragraph 1 of Article 29 of the Law on the Government of 28 April 1998 (in its new wording), there are 14 ministries in the Republic of Lithuania. They do not include the Ministry of European Affairs, the Ministry of Communications and Informatics, and the Ministry of Construction and Urban Planning which were abolished by Article 1 of the Law on the Implementation of the Law. The aforementioned laws went into effect on 1 May 1998. Thus, from this date the aforesaid ministries were abolished as institutions of State governance.

The Law on the Implementation of the law did not concern the issues of the continuance or redistribution of the functions of the abolished ministries to other institutions save that Item 2 of Article 2 of the said law provided that the Government must establish an institution under the Government responsible for the solution of questions of the integration of Lithuania into the European Union. The law did not regulate the questions connected with the termination of ministries as legal persons, either.

Paragraph 10 of Article 29 of the Law on the Government provides that the objectives, functions and rights of the ministries shall be established in laws, regulations of the ministries and governmental resolutions. Regulations of the ministries shall be confirmed by the Government (Article 8 of the Law on the Government). As the Law on the Implementation of the law neither particularly regulated the redistribution of the functions of the ministries nor did it contain any further arrangement of the affairs of the abolished ministries, then the Government, carrying out its competence (Items 1 and 3 of Article 94 of the Constitution) and implementing the Law on the Implementation of the Law on the Amendment to the Law on the Government (Item 1 of Article 2), was empowered to redistribute the functions of the ministries and regulate the other relations arising out of the fact of the abolishment of the ministries.

6. The petitioner maintains in his request that the reorganisation of the abolished ministries contradicts the Law on the Institutions Financed from the Budget.

On the basis of the source of finance, a ministry is an institution finance from the budget. Under Article 4 of the Law on the Institutions Financed from the Budget, the institutions financed from the budget shall be reorganised or liquidated by their founders under the procedure established by the Government provided the laws do not provide otherwise. Item 8 of Article 67 provides that the Seimas shall upon the recommendation of the Government, establish or abolish ministries of the Republic of Lithuania. An analogous norm is that of Paragraph 2 of Article 29 of the Law on the Government. Thus, the Law on the Institutions Financed from the Budget does not regulate establishment nor abolishment of ministries, therefore, Items 1, 2, 5 and 6 of the impugned Government Resolution from the aspect investigated in this case do not contradict Article 4 of the Law on the Institutions Financed from the Budget.

7. Executing both the Law on the Implementation of the Law and the Seimas resolution, the Government used the wording “in the course of reorganisation of the abolished ministry <…>” in Items 1, 2 and 6 of the Government Resolution, and that “to establish on the basis of the reorganised ministry <…>” in Item 5 of the same Resolution.

The abolishment of a ministry means that it ceases to exist as an institution of governance. Thus, it is impossible to reorganise an abolished ministry. From the point of view of legal logic, the combination of the legal notions “in the course of the reorganisation of the abolished <…>” is inappropriate as both these notions deny each other. Under the law, the ministries were abolished as from 1 May 1998, therefore, they could not be reorganised by a later Government resolution, i.e. that of 22 May 1998. Due to inappropriate use of notions in legal acts, legal regulation may become vague. However, it is possible to decide whether the impugned Government Resolution ought to be judged to be contradicting the Constitution due to the inappropriate use of the said notions only after elucidation of the purpose and content of the adoption of the aforementioned Government Resolution.

As mentioned, three ministries were abolished by the Law on the Implementation of the Law. It is established in the Government Resolution as to what functions are transferred to the Ministry of Environmental Protection from the Ministry of Construction and Urban Planning (Item 1.1), as well as those to the Ministry of Transport and the Ministry of Public Administration Reforms and Municipal Affairs from the Ministry of Communications and Informatics (Items 2.1, 2.2), those to the European Committee under the Government of the Republic of Lithuania, the Ministry of Economy, the State enterprise the State Property Fund from the Ministry of European Affairs (Items 6.1, 6.3, 6.4). Other relations linked with the abolishment of the ministries are also regulated by the Government Resolution. The legal regulation established therein is in conformity with the purpose of the law to abolish the ministries as by the said resolution the administrative functions performed by the abolished ministries were merely redistributed, as well as the other relations arising out of the abolishment of the ministries were regulated. As mentioned, the combination of the legal notions “in the course of reorganisation of the abolished <…>” as used in the Government Resolution is inappropriate as these notions deny each other, however, it does not mean that in this case the Government exceeded its powers conferred by the Constitution and the laws.

On the grounds of the arguments set forth, it should be concluded that Items 1, 2, 5 and 6 of the Resolution of the Government of the Republic of Lithuania (No. 620) “On the Procedure for and the Term of the Reorganisation of the Former Ministry of Construction and Urban Planning, the Ministry of European Affairs, the Ministry of Communications and Informatics as well as Their Institutions” of 22 May 1998 are in compliance with Item 8 of Article 67 and Item 2 of Article 94 of the Constitution, Item 2 of Article 22, and Paragraph 2 of Article 29 of the Law on the Government, Article 1 of the Law on the Implementation of the Law on the Amendment to the Law on the Government and Article 4 of the Law on the Institutions Financed from the Budget.

II

On the compliance of Item 8 of the Government Resolution (No. 620) “On the Procedure for and the Term of the Reorganisation of the Former Ministry of Construction and Urban Planning, the Ministry of European Affairs, the Ministry of Communications and Informatics as well as Their Institutions” of 22 May 1998 with Paragraph 2 of Article 132 of the Constitution and the Law on the Government.

1. Item 8 of the Government Resolution provides: “The Ministry of Finance must reapportion the appropriations, which were previously allotted to the former Ministry of European Affairs, the Ministry of Communications and Informatics and the Ministry of Construction and Urban Planning, as well as the Department of Communal Economy which was formerly under the Ministry of Construction and Urban Planning respectively to the Ministry of Environmental Protection, the Ministry of Public Administration Reforms and Municipal Affairs, the European Committee under the Government of the Republic of Lithuania, the Ministry of Transport, the Ministry of Economy, and the Ministry of Foreign Affairs, by taking account of the resolutions of the Government of the Republic of Lithuania wherein the maximum permissible number of the staff is established.”

The petitioner contends that the Government changed the 1998 budget law by the substatutory act, which contradicts Article 132 of the Constitution and the Law on the Government.

2. Paragraph 2 of Article 5 of the Constitution provides that the scope of powers shall be defined by the Constitution. This constitutional principle, besides, means that in cases when the powers of a concrete branch of power are directly established in the Constitution, then no institution may take over these powers, while an institution whose powers are defined by the Constitution may neither transfer nor waive these powers. Such powers may neither be changed nor limited by law.

3. Article 11 of the Republic of Lithuania’s Law on Budgeting provides that the State Budget of the Republic of Lithuania shall be a centralised fund of financial resources wherein a certain portion of the national revenues of the Republic shall be accumulated and reapportioned. Financial resources accumulated in the State Budget are used for financing various national needs. These needs are listed in Article 13 of the Law on Budgeting. One of such needs is the maintenance of State authority, State governance and State institutions (Item 7 of Article 13). In order that these needs should be financed, a draft budget must provide for not only the total amount of appropriations but also the apportionment thereof for particular ministries (Item 2 of Article 17).

The budgeting process includes the activities of various State institutions. Article 130 of the Constitution provides: “The Government of the Republic of Lithuania shall prepare a draft budget of the State, and shall submit it to the Seimas no later than 75 days before the end of the budget year.” This competence of the Government is detailed in Item 4 of Article 22 of the Law on the Government by which the Government shall “prepare the draft budget of the State and submit it to the Seimas; execute the State budget and report on the fulfilment of the budget to the Seimas”. Implementing the powers prescribed by the Constitution and the Law on the Government, the Government is not only entitled but also obligated to provide in the draft budget for concrete amounts of expenditures necessary to ensure the administration functions carried out by the ministries.

Under Item 14 of Article 67 of the Constitution, the Seimas shall approve the State budget. It does so by passing a law (Paragraph 1 of Article 131 of the Constitution). Besides, the Seimas supervises as to how the State budget is implemented. Thus, under the Constitution it is only the Seimas that is entitled to approve the State budget. Approving the State budget by law, the Seimas establishes its revenues and expenditures.

The Government must implement the approved State budget in pursuance of its purpose and scopes which have been established in the budget law. Paragraph 2 of Article 132 of the Constitution provides: “During the budget year the Seimas may change the budget. It shall be changed according to the same procedure by which it was drafted, adopted and approved. As necessary, the Seimas may approve an additional budget.” Thus, the Constitution does not empower the Government to change the budget by itself.

4. The expenditures for the Ministry of European Affairs, the Ministry of Communications and Informatics, the Ministry of Construction and Urban Planning were approved in individual clauses of the Republic of Lithuania’s Law on the Approval of the Financial Indicators of the 1998 State Budget and Those of the Municipal Budgets. In addition, particular managers of the appropriations of the State budget were pointed out therein. As mentioned, it is only the Seimas that may change the budget, and only according to the same procedure by which it was drafted, adopted and approved. Therefore, only the Seimas was entitled to change the size of the appropriations allocated to the abolished Ministry of the European Affairs, Ministry of Communications and Informatics and Ministry of Construction and Urban Planning and it was only possible to do so by passing a law changing the law by which the budget had been approved. Under the Constitution, such a draft amendment to the budget is submitted to the Seimas by the Government.

However, according to Item 8 of the impugned Government Resolution, the Government itself commissioned the Ministry of Finance to redistribute the appropriations of the State budget allocated to the former Ministry of European Affairs, Ministry of Communications and Informatics, Ministry of Construction and Urban Planning respectively to the Ministry of Environmental Protection, the Ministry of Public Administration Reforms and Municipal Affairs, the Ministry of Transport, the Ministry of Economy, the Ministry of Foreign Affairs, and the European Committee under the Government of the Republic of Lithuania. Alongside, the Government changed the amounts of the appropriations and their managers that had been confirmed by law. Thus, the Government had overstepped its powers defined by the Constitution in the sphere of the budget.

On the grounds of the arguments set forth, it should be concluded that Item 8 of the Government Resolution (No. 620) “On the Procedure for and the Term of the Reorganisation of the Former Ministry of Construction and Urban Planning, the Ministry of European Affairs, the Ministry of Communications and Informatics as well as Their Institutions” of 22 May 1998 contradicts Paragraph 2 of Article 132 of the Constitution.

Having stated that Item 8 of the impugned Government Resolution contradicts the Constitution, the Constitutional Court will not investigate the conformity of Item 8 of the said Government Resolution with the Law on the Government in this case.

Conforming to Article 102 of the Constitution of the Republic of Lithuania and Articles 53, 54, 55 and 56 of the Law on the Constitutional Court of the Republic of Lithuania, the Constitutional Court of the Republic of Lithuania gives the following

ruling:

1. To recognise that Items 1, 2, 5 and 6 of the Resolution of the Government of the Republic of Lithuania (No. 620) “On the Procedure for and the Term of the Reorganisation of the Former Ministry of Construction and Urban Planning, the Ministry of European Affairs, the Ministry of Communications and Informatics as well as Their Institutions” of 22 May 1998 are in compliance with the Constitution of the Republic of Lithuania, Item 2 of Article 22, and Paragraph 2 of Article 29 of the Law on the Government of the Republic of Lithuania, Article 1 of the Republic of Lithuania’s Law on the Implementation of the Law on the Amendment to the Law on the Government and Article 4 of the Republic of Lithuania’s Law on the Institutions Financed from the Budget.

2. To recognise that Item 8 of the Resolution of the Government of the Republic of Lithuania (No. 620) “On the Procedure for and the Term of the Reorganisation of the Former Ministry of Construction and Urban Planning, the Ministry of European Affairs, the Ministry of Communications and Informatics as well as Their Institutions” of 22 May 1998 contradicts Paragraph 2 of Article 132 of the Constitution of the Republic of Lithuania.

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

The ruling is pronounced in the name of the Republic of Lithuania.

Justices of the Constitutional Court:

Egidijus Jarašiūnas      Egidijus Kūris     Zigmas Levickis

Augustinas Normantas      Vladas Pavilonis      Jonas Prapiestis

Vytautas Sinkevičius     Stasys Stačiokas     Teodora Staugaitienė