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On accepting a petition of the petitioner

 

THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

DECISION

ON ACCEPTING THE PETITION OF THE SEIMAS OF THE REPUBLIC OF LITHUANIA, THE PETITIONER, SET FORTH IN ITS RESOLUTION (NO. XI-246) “ON APPLYING TO THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA WITH THE PETITION REQUESTING AN INVESTIGATION INTO WHETHER ITEMS 1 AND 2 OF THE RESOLUTION OF THE GOVERNMENT OF THE REPUBLIC OF LITHUANIA (NO. 22) ‘ON ASSENTING TO A DRAFT AGREEMENT ON SALE AND PURCHASE OF 34 PERCENT OF THE SHARES (WHICH BELONG TO THE STATE BY RIGHT OF OWNERSHIP) OF THE JOINT-STOCK COMPANY “LIETUVOS DUJOS”, ANNEXES TO THIS AGREEMENT, AS WELL AS TO A DRAFT AGREEMENT OF SHAREHOLDERS’ OF 9 JANUARY 2004, THE RESOLUTION (NO. 292) ‘ON A DRAFT SUPPLEMENT TO THE LONG-TERM GAS SUPPLY AGREEMENT BETWEEN THE JOINT-STOCK COMPANY “LIETUVOS DUJOS” AND THE PUBLIC JOINT-STOCK COMPANY “GAZPROM”’ OF 18 MARCH 2004, ACCORDING TO THE CONTENT OF THE NORMS, THE EXTENT OF REGULATION AND THE PROCEDURE OF ADOPTION, ARE NOT IN CONFLICT WITH ARTICLE 5, THE THIRD AND FIFTH PARAGRAPHS OF ARTICLE 46, THE FIRST PARAGRAPH OF ARTICLE 128 OF THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA AND THE PRINCIPLE OF A STATE UNDER THE RULE OF LAW” OF 5 MAY 2009

 

14 May 2009
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

The court reporter—Daiva Pitrėnaitė

The Constitutional Court of the Republic of Lithuania, in its procedural sitting, considered the petition of the Seimas of the Republic of Lithuania, the petitioner, which was set forth in its Resolution (No. XI-246) “On Applying to the Constitutional Court of the Republic of Lithuania with the Petition Requesting an Investigation into Whether Items 1 and 2 of the Resolution of the Government of the Republic of Lithuania (No. 22) ‘On Assenting to a Draft Agreement on Sale and Purchase of 34 Percent of the Shares (Which Belong to the State by Right of Ownership) of the Joint-Stock Company “Lietuvos dujos”, Annexes to this Agreement, as well as to a Draft Agreement of Shareholders’ of 9 January 2004, the Resolution (No. 292) ‘On a Draft Supplement to the Long-Term Gas Supply Agreement Between the Joint-Stock Company “Lietuvos dujos” and the Public Joint-Stock Company “Gazprom”’ of 18 March 2004, according to the content of the norms, the extent of regulation and the procedure of adoption, are not in conflict with Article 5, the Third and Fifth Paragraphs of Article 46, the First Paragraph of Article 128 of the Constitution of the Republic of Lithuania and the Principle of a State under the Rule of Law” of 5 May 2009 (hereinafter referred to as Seimas resolution No. XI-246 of 5 May 2009), wherein contains the petition requesting an investigation into whether Items 1 and 2 of the Resolution of the Government of the Republic of Lithuania (No. 22) “On Assenting to a Draft Agreement on Sale and Purchase of 34 Percent of the Shares (Which Belong to the State by Right of Ownership) of the Joint-Stock Company ‘Lietuvos dujos’, Annexes to this Agreement, as well as to a Draft Agreement of Shareholders” of 9 January 2004, the Resolution (No. 292) “On a Draft Supplement to the Long-Term Gas Supply Agreement Between the Joint-Stock Company ‘Lietuvos dujos’ and the Public Joint-Stock Company ‘Gazprom’” of 18 March 2004, to the extent that the Government assented to the provisions of Annex H and Item 9.1 of Agreement No. 2/108 on Sale and Purchase of 34 Percent of the Shares (Which Belong to the State by Right of Ownership) of the Joint-Stock Company “Lietuvos dujos”, which was concluded between the state enterprise State Property Fund and the Russian Federation’s public joint-stock company “Gazprom” on 23 January 2004, and, subsequent to these provisions, undertook obligations not to regulate the prices of natural gas and to reimburse the losses, are not in conflict, according to the content of the norms, the extent of regulation and the procedure of adoption, with Article 5, Paragraphs 3 and 5 of Article 46, Paragraph 1 of Article 128 of the Constitution of the Republic of Lithuania and with the constitutional principle of a state under the rule of law.

The Constitutional Court

has established:

1. On 5 May 2009, the Seimas, the petitioner, adopted resolution No. XI-246 in Article 1 whereof it set forth the petition requesting an investigation into whether Items 1 and 2 of the Resolution of the Government of the Republic of Lithuania (No. 22) “On Assenting to a Draft Agreement on Sale and Purchase of 34 Percent of the Shares (Which Belong to the State by Right of Ownership) of the Joint-Stock Company ‘Lietuvos dujos’, Annexes to this Agreement, as well as to a Draft Agreement of Shareholders” of 9 January 2004, the Resolution (No. 292) “On a Draft Supplement to the Long-Term Gas Supply Agreement Between the Joint-Stock Company ‘Lietuvos dujos’ and the Public Joint-Stock Company ‘Gazprom’” of 18 March 2004, to the extent that the Government assented to the provisions of Annex H and Item 9.1 of Agreement No. 2/108 on Sale and Purchase of 34 Percent of the Shares (Which Belong to the State by Right of Ownership) of the Joint-Stock Company “Lietuvos dujos”, which was concluded between the state enterprise State Property Fund and the Russian Federation public joint-stock company “Gazprom” on 23 January 2004, and, subsequent to these provisions, undertook obligations not to regulate the prices of natural gas and to reimburse the losses, are not in conflict, according to the content of the norms, the extent of regulation and the procedure of adoption, with Article 5, Paragraphs 3 and 5 of Article 46, Paragraph 1 of Article 128 of the Constitution of the Republic of Lithuania and with the constitutional principle of a state under the rule of law.

2. This petition of the Seimas, the petitioner, was officially published in the official gazette “Valstybės žinios” on 14 May 2009 (Official Gazette Valstybės žinios, 2009, No. 55-2154); it was registered at the Constitutional Court on 13 May 2009.

The Constitutional Court

holds that:

1. Under Paragraph 1 of Article 102 and Item 2 of Paragraph 2 of Article 105 of the Constitution, an investigation into the compliance of acts of the Government with the Constitution is assigned to the jurisdiction of the Constitutional Court.

2. Under Paragraph 3 of Article 106 of the Constitution, not less than 1/5 of all the members of the Seimas, courts, as well as the President of the Republic, shall have the right to apply to the Constitutional Court concerning the conformity of acts of the Government with the Constitution. Under Paragraph 4 of the same article, the resolution of the Seimas asking for an investigation into the conformity of an act with the Constitution shall suspend the validity of the act.

While construing these provisions in a systemic manner, it needs to be held that the Seimas in corpore has the constitutional powers to apply, by means of a resolution, to the Constitutional Court and request an investigation into the compliance of acts of the Government with the Constitution.

3. Under Paragraph 1 of Article 26 (wording of 28 October 2003) of the Law on the Constitutional Court of the Republic of Lithuania, in cases when the Constitutional Court receives a resolution of the Seimas containing the petition requesting an investigation into whether a law is in compliance with the Constitution, the preliminary investigation of that material must be carried out not later than within 3 days, and the issue of whether to accept the petition for consideration in the Constitutional Court must be settled during its organisational sitting.

The corresponding decision of the Constitutional Court on accepting the petition neither confirms nor denies the arguments upon which the Seimas, the petitioner, grounds its position; when adopting such decisions, the fact of essential significance is whether the petition of the petitioner is substantiated by legal reasoning (the Constitutional Court’s decisions of 15 December 2006, 8 January 2008, 8 October 2008, and 3 April 2009).

4. The petition set forth in Seimas resolution No. XI-246 of 5 May 2009 is substantiated by legal reasoning.

5. It has been mentioned that, under Paragraph 4 of the Article 106 of the Constitution, the resolution of the Seimas asking for an investigation into the conformity of an act with the Constitution shall suspend the validity of the act. Under Paragraph 1 of Article 107 of the Constitution, an act (or part thereof) of the Government may not be applied from the day of the official publication of the decision of the Constitutional Court that the act in question (or part thereof) is in conflict with the Constitution. While construing these provisions in a systemic manner, it needs to be held that the decision of the Constitutional Court to accept a petition set forth in the Seimas resolution requesting an investigation into whether the provisions of acts of the Government comply with the Constitution suspends the validity of the corresponding provisions.

Under Paragraph 2 of Article 26 (wording of 28 October 2003) of the Law on the Constitutional Court, if the Constitutional Court adopts the decision to accept a petition for consideration, the President of the Constitutional Court shall immediately give an official announcement about it in the official gazette “Valstybės žinios” as well as on the Internet website of the Constitutional Court. In this announcement, the President of the Constitutional Court must state the exact title of the impugned act, the date of its adoption, and that, in accordance with Article 106 of the Constitution of the Republic of Lithuania, the validity of the aforementioned act (part thereof) is suspended from the day of this official announcement until a ruling of the Constitution Court concerning this case is published.

Under Paragraph 3 of Article 26 (wording of 28 October 2003) of the Law on the Constitutional Court, in cases when the Constitutional Court, having considered a case, adopts the ruling that the impugned act or part thereof is not in conflict with the Constitution, the President of the Constitutional Court shall immediately make an official announcement about it under procedure established in Paragraph 2 of this article; in this announcement, the President of the Constitutional Court shall state the exact title of the impugned act, the date of its adoption, the essence of the ruling of the Constitutional Court concerning this issue, the date of its adoption, and that the validity of the suspended act (part thereof) shall be restored from the day that this ruling is published.

Conforming to Item 2 of Paragraph 2 of Article 105 of the Constitution of the Republic of Lithuania and Articles 26, 28 and 63 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 accept the petition of the Seimas of the Republic of Lithuania, the petitioner, set forth in its Resolution (No. XI-246) “On Applying to the Constitutional Court of the Republic of Lithuania with the Petition Requesting an Investigation into Whether Items 1 and 2 of the Resolution of the Government of the Republic of Lithuania (No. 22) ‘On Assenting to a Draft Agreement on Sale and Purchase of 34 Percent of the Shares (Which Belong to the State by Right of Ownership) of the Joint-Stock Company “Lietuvos dujos”, Annexes to this Agreement, as well as to a Draft Agreement of Shareholders’ of 9 January 2004, the Resolution (No. 292) ‘On a Draft Supplement to the Long-Term Gas Supply Agreement Between the Joint-Stock Company “Lietuvos dujos” and the Public Joint-Stock Company “Gazprom”’ of 18 March 2004, according to the content of the norms, the extent of regulation and the procedure of adoption, are not in conflict with Article 5, the Third and Fifth Paragraphs of Article 46, the First Paragraph of Article 128 of the Constitution of the Republic of Lithuania and the Principle of a State under the Rule of Law” of 5 May 2009 requesting an investigation into whether Items 1 and 2 of the Resolution of the Government of the Republic of Lithuania (No. 22) “On Assenting to a Draft Agreement on Sale and Purchase of 34 Percent of the Shares (Which Belong to the State by Right of Ownership) of the Joint-Stock Company ‘Lietuvos dujos’, Annexes to this Agreement, as well as to a Draft Agreement of Shareholders” of 9 January 2004, the Resolution (No. 292) “On a Draft Supplement to the Long-Term Gas Supply Agreement Between the Joint-Stock Company ‘Lietuvos dujos’ and the Public Joint-Stock Company ‘Gazprom’” of 18 March 2004, to the extent that the Government assented to the provisions of Annex H and Item 9.1 of Agreement No. 2/108 on Sale and Purchase of 34 Percent of the Shares (Which Belong to the State by Right of Ownership) of the Joint-Stock Company “Lietuvos dujos”, which was concluded between the state enterprise State Property Fund and the Russian Federation public joint-stock company “Gazprom” on 23 January 2004, and, subsequent to these provisions, undertook obligations not to regulate the prices of natural gas and to reimburse the losses, are not in conflict, according to the content of the norms, the extent of regulation and the procedure of adoption, with Article 5, Paragraphs 3 and 5 of Article 46, Paragraph 1 of Article 128 of the Constitution of the Republic of Lithuania and with the constitutional principle of a state under the rule of law.

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

The decision is pronounced 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