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On dismissing the instituted legal proceedings

Case No. 9/98

 

 

THE CONSTITUTIONAL COURT OF

THE REPUBLIC OF LITHUANIA

 

D e c I s I o n

 

On the petition of the Second Vilnius City Local Court requesting an investigation into whether Item 2 of the Resolution of the Government of the Republic of Lithuania (No. 271) “On the Prices for Telecommunications Services” of 6 March 1998 is in compliance with the Constitution of the Republic of Lithuania, Paragraph 1 of Article 7 of the Republic of Lithuania’s Law on Communications of 30 November 1995 and the provisions of Item 3 of Paragraph 2 of Article 3 of the Republic of Lithuania’s Law on Competition of 15 September 1992

 

Vilnius, 9 November 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

The Constitutional Court of the Republic of Lithuania, in its organisational sitting, has discussed the petition of the petitioner—the Second Vilnius City Local Court—requesting an investigation into whether Item 2 of the Resolution of the Government of the Republic of Lithuania (No. 271) “On the Prices for Telecommunications Services” of 6 March 1998 was in compliance with Paragraphs 4 and 5 of Article 46 of the Constitution of the Republic of Lithuania, Paragraph 1 of Article 7 of the Republic of Lithuania’s Law on Communications of 30 November 1995 and the provisions of Item 3 of Paragraph 2 of Article 3 of the Republic of Lithuania’s Law on Competition of 15 September 1992.

The Constitutional Court

has established:

I

On 27 March 1998, the petitioner—the Second Vilnius City Local Court—was investigating a civil case pursuant to a claim requesting the abolishment of the Order (No. 2-t) “On Changing the Tariffs for Telecommunications Services” adopted on 29 January 1998 by the Ministry of Communications and Informatics of the Republic of Lithuania. By means of its ruling, the Second Vilnius City Local Court suspended the consideration of the case and applied to the Constitutional Court with the petition requesting an investigation into whether Item 2 of the Resolution of the Government of the Republic of Lithuania (No. 271) “On the Prices for Telecommunications Services” of 6 March 1998 (Official Gazette Valstybės žinios, 1998, No. 24-617) was in compliance with Paragraphs 4 and 5 of Article 46 of the Constitution of the Republic of Lithuania, Paragraph 1 of Article 7 of the Law on Communications of 30 November 1995 (Official Gazette Valstybės žinios, 1995, No. 102-2280) and the provisions of Item 3 of Paragraph 2 of Article 3 of the Law on Competition of 15 September 1992 (Official Gazette Valstybės žinios, 1992, No. 29-841).

II

In the course of the preparation of the case, an explanation of J. Ūsas, Director of the Communications Department of the Ministry of Communication, the representative of the party concerned, was received wherein the opinion was set forth that Item 2 of the impugned government resolution was in compliance with Paragraph 4 and 5 of Article 46 of the Constitution, Paragraph 1 of Article 7 of the Law on Communications of 30 November 1995, and the provisions of Item 3 of Paragraph 2 of Article 3 of the Law on Competition of 15 September 1992.

The Constitutional Court

holds that:

1. On 30 November 1995, the Seimas adopted the Republic of Lithuania’s Law on Communications. Paragraph 1 of Article 7 of the said law provides: “The prices and tariffs of obligatory postal and telecommunications services provided by the enterprises under the jurisdiction of the Ministry of Communications and Informatics as well as of postal and telecommunications services in the market whereof the enterprise holds a dominant position, and the price ceiling of the principal telecommunications services provided by other enterprises shall be fixed by the Government”. Thus, the Government was obligated by the provisions of this article to establish the state regulation of prices for telecommunications services, i.e. transmission of information by technical means of telecommunications—telephone, telegraph, facsimile communication, devices and lines of data transmission, radio communication, radio and television broadcast and reception, as well as other devices used for telecommunication—by these means:

1) by fixing the prices and tariffs of obligatory telecommunications services provided by the enterprises under the jurisdiction of the Ministry of Communications and Informatics as well as of telecommunications services in the market whereof the enterprise holds a dominant position;

2) by fixing the price ceiling of the principal telecommunications services provided by other enterprises.

2. On 6 March 1998, the Government adopted the Resolution (No. 271) “On the Prices for Telecommunications Services”. Item 2 thereof provides: “To deem, pursuant to Article 7 of the Republic of Lithuania’s Law on Communications, the internal prices for telecommunications services approved by the Order (No. 2-t) “On Changing the Tariffs for Telecommunications Services” of 29 January 1998 adopted by the Ministry of Communications and Informatics (Official Gazette Valstybės žinios, 1998, No. 12-287) to be the price ceiling of the principal telecommunications services until deliberation on the draft law on an amendment of Article 7 of the Republic of Lithuania’s Law on Communications submitted by the Government of the Republic of Lithuania in the Seimas and its entry into effect; the said draft law provides that the concrete prices for postal and telecommunications services shall be established by the enterprises providing these services and that they shall be approved by the Commission for Price Supervision in Energetics, Communications and Transport Sectors.”

Upon the adoption of such a resolution and establishment of only the price ceiling of the internal principal telecommunications services, the Government only in part and defectively accomplished the provisions of Paragraph 1 of Article 7 of the Law on Communications, as:

1) it did not establish the price ceiling of the international principal telecommunications services;

2) it did not take into consideration the fact that even though the company Lietuvos telekomas which was performing in the telecommunications market was not within the jurisdiction of the Ministry of Communications and Informatics, the said company, under the valid legal normative acts regulating the legal relations of competition, had the status of an enterprise dominating in the market of telephone communication services, nor did it fix, along with the price ceiling of the principal telecommunications services, the concrete prices and tariffs of telecommunications services for the dominating enterprises. It needs to be noted that the Government, after it had established the provision that it is entitled to fix the prices and tariffs of telecommunications services only for the enterprises within the jurisdiction of the Ministry of Communications and Informatics, incorrectly accomplished the provisions of Paragraph 1 of Article 7 of the Law on Communications establishing that the Government is obligated to fix concrete prices and tariffs of telecommunications services provided by all dominating enterprises.

At the time of the adoption of the government resolution, the fixed telephone communication services were provided only by the monopolist company Lietuvos telekomas, however, other enterprises were entitled to begin to provide analogous services. Therefore, not only the prices and tariffs, which in the government resolution were not fixed for the services of dominating enterprises, but also the price ceiling for all principal telecommunications services provided by non-dominating enterprises should have been fixed. Thus, the Government only in part accomplished the functions of price regulation commissioned to it by the Law on Communications.

3. It needs to be noted that the Ministry of Communications and Informatics, in adopting the Order (No. 2-t) “On Changing the Tariffs for Telecommunications Services” of 29 January 1998, overstepped its competence, since, under the provisions of Article 7 of the Law on Communications, only the Government was granted the right and was obligated to accomplish state regulation of prices of telecommunications services. Such legal regulation is defective. On the other hand, questions of the compliance of orders of ministries with the Constitution are not within the jurisdiction of the Constitutional Court.

4. Item 2 of the impugned government resolution provided that “To deem, pursuant to Article 7 of the Republic of Lithuania’s Law on Communications, the internal prices for telecommunications services approved by the Order (No. 2-t) “On Changing the Tariffs for Telecommunications Services” 29 January 1998 adopted by the Ministry of Communications and Informatics (Official Gazette Valstybės žinios, 1998, No. 12-287) to be the price ceiling of the principal telecommunications services until deliberation on the draft law on an amendment of Article 7 of the Republic of Lithuania’s Law on Communications submitted by the Government of the Republic of Lithuania in the Seimas and its entry into effect; the said draft law provides that the concrete prices for postal and telecommunications services shall be established by the enterprises providing these services <…>”. Thus, the said item was in effect only temporarily, i.e. until the Republic of Lithuania’s Law on the Amendment of Article 7 of the Law on Communications adopted on 2 June 1998 went into effect on 19 June 1998. On 23 June 1998, the Government adopted the Resolution (No. 759) “On a Partial Amendment of the Resolution of the Government of the Republic of Lithuania (No. 271) ‘On the Prices for Telecommunications Services’ of 6 March 1998” by which the tariff ceiling of telecommunications obligatory services was approved. In addition, on 29 June 1998, the Ministry of Communication of the Republic of Lithuania adopted the Order (No. 265) “On Internal and International Telecommunications Tariffs” by which the Order (No. 2-t) “On Changing the Tariffs for Telecommunications Services” of 29 January 1998 adopted by the Ministry of Communications and Informatics of the Republic of Lithuania was abrogated.

Taking account of the fact that Item 2 of the Government Resolution (No. 271) “On the Prices for Telecommunications Services” of 6 March 1998 is not any longer in effect and conforming to Paragraph 4 of Article 69 and Article 28 of the Law on the Constitutional Court of the Republic of Lithuania, the Constitutional Court of the Republic of Lithuania adopts the following

decision:

To dismiss the initiated legal proceedings in the case.

Justices of the Constitutional Court:

 

Egidijus Jarašiūnas     Egidijus Kūris     Zigmas Levickis

 

Augustinas Normantas      Vladas Pavilonis      Jonas Prapiestis

 

Vytautas Sinkevičius      Stasys Stačiokas      Teodora Staugaitienė