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On the interpretation of the Constitutional Court’s ruling of 24 December 2002

Case No. 49/2000

 

THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

DECISION

ON THE CONSTRUCTION OF THE CONSTITUTIONAL COURT’S RULING OF 24 DECEMBER 2002

 

11 February 2004

Vilnius

 

The Constitutional Court of the Republic of Lithuania, composed of the Justices of the Constitutional Court: Armanas Abramavičius, Egidijus Kūris, Kęstutis Lapinskas, Zenonas Namavičius, Augustinas Normantas, Jonas Prapiestis, Vytautas Sinkevičius, and Stasys Stačiokas

The court reporter—Sigutė Brusovienė

Seimas member Petras Papovas, acting as the representative of the Seimas of the Republic of Lithuania, the petitioner in case 49/2000, and Ona Buišienė, chief consultant to the Legal Department of the Office of the Seimas, acting as the representative of the Seimas of the Republic of Lithuania, the party concerned in case 49/2000

The Constitutional Court of the Republic of Lithuania, pursuant to Article 61 of the Law on the Constitutional Court of the Republic of Lithuania, on 3 February 2004, in its public hearing considered the petition of Seimas member Petras Papovas requesting the construction of the following provisions of the Constitutional Court’s Ruling “On the Compliance of Paragraph 3 of Article 3 (Wording of 12 October 2000), Paragraph 4 of Article 3 (Wording of 12 October 2000), Item 2 of Paragraph 1 of Article 5 (Wording of 12 October 2000), Paragraph 1 of Article 18 (Wording of 12 October 2000), Items 2, 3, 4, 8, and 15 of Paragraph 1 of Article 19 (Wording of 12 October 2000), Items 1, 5, 7, 9, 12, 15, 16, 17, and 18 of Paragraph 1 of Article 21 (Wording of 12 October 2000), Item 6 of the Same Paragraph (Wordings of 12 October 2000 and 25 September 2001), and Item 14 of the Same Paragraph (Wordings of 12 October 2000 and 8 November 2001) of the Republic of Lithuania’s Law on Local Self-Government, as well as the Republic of Lithuania’s Constitutional Law on the Procedure of the Application of the Law on the Alteration of Article 119 of the Constitution, and the Republic of Lithuania’s Law on the Entering of the Constitutional Law on the Procedure of the Application of the Law on the Alteration of Article 119 of the Constitution on the List of Constitutional Laws, with the Constitution of the Republic of Lithuania” of 24 December 2002:

1) “The same persons may not discharge the functions in the implementation of state authority and, at the same time, be members of municipal councils, through which the right of self-government is implemented. <…> Under the Constitution, the state officials who, according to the Constitution and laws enjoy the powers to control or supervise the activities of municipal councils, may not be members of municipal councils, either” (Item 20.4.1 of Section II of the reasoning part of the ruling);

2) “The constitutional provision that municipalities shall act freely and independently within their competence, which shall be established by the Constitution and laws, also means that in case the Constitution or laws assign certain functions to municipalities, then municipalities discharge these functions to the extent that they are assigned such functions. This means that a certain part of the competence of municipalities must be implemented directly, that the implementation of decisions adopted by municipal councils within the limits of their competence must not be bound by decisions (permissions, consents, etc.) of certain state institutions or officials. However, it needs to be emphasised that even the functions which exclusively belong to municipalities are regulated by law. Not a single one of these functions mean that in a respective area municipalities are absolutely independent” (Item 17.2 of Section II of the reasoning part of the ruling);

3) “Under the Constitution, the executive bodies accountable to municipal councils do not have the right to adopt decisions which are not grounded on laws, decisions of the Government and/or corresponding municipal councils, also such which, by their legal force, would compete with those passed by the municipal councils” (Item 21.4 of Section II of the reasoning part of the ruling);

4) “The adoption of the decisions on the municipal issues indicated in Paragraph 1 of Article 40, Paragraph 2 of Article 41, Paragraph 2 of Article 47, Paragraph 4 of Article 119, Paragraphs 1 and 2 of Article 121 and Article 122 of the Constitution is the exclusive constitutional competence of municipal councils. Under the Constitution, it is not permitted to establish the legal regulation which would create legal preconditions for executive bodies accountable to municipal councils to interfere with the exclusive constitutional competence of municipal councils in the adoption of the decisions on the issues indicated in Paragraph 1 of Article 40, Paragraph 2 of Article 41, Paragraph 2 of Article 47, Paragraph 4 of Article 119, Paragraphs 1 and 2 of Article 121 and Article 122 of the Constitution” (Item 21.4.1 of Section II of the reasoning part of the ruling);

5) “<…> the establishment, by law, of the functions and competence of the executive bodies accountable to municipal councils is left to be done by the Seimas. However, <…> the principles of accountability of executive bodies to the representation and of supremacy of municipal councils in regard to the executive bodies which are accountable to them, both of which are established in the Constitution, imply that the municipal councils have the powers to control the executive bodies which are established by and accountable to them. Under the Constitution, the right of self-government is implemented through municipal councils, thus, all decisions adopted by the executive bodies accountable to municipal councils on the issues assigned to the competence of municipalities are subordinated to decisions of corresponding municipal councils” (Item 21.4.2 of Section II of the reasoning part of the ruling);

6) “As decisions adopted by municipal councils are inseparable from the execution of these decisions, then the municipal representative institutions as well as the municipal executive institutions, both of which are provided for in the Constitution, according to their competence are responsible for the implementation of the right of self-government and for the direct implementation of the laws, the decisions of the Government and the municipal council” (Item 21.5 of Section II of the reasoning part of the ruling);

7) “Municipal councils, while implementing the right of self-government guaranteed by the Constitution, may also establish other municipal institutions and other municipal establishments which have authoritative empowerments” (Item 21.6 of Section II of the reasoning part of the ruling).

The Constitutional Court

has established:

I

1. In case 49/2000 of 24 December 2002, the Constitutional Court has passed the Ruling “On the Compliance of Paragraph 3 of Article 3 (Wording of 12 October 2000), Paragraph 4 of Article 3 (Wording of 12 October 2000), Item 2 of Paragraph 1 of Article 5 (Wording of 12 October 2000), Paragraph 1 of Article 18 (Wording of 12 October 2000), Items 2, 3, 4, 8, and 15 of Paragraph 1 of Article 19 (Wording of 12 October 2000), Items 1, 5, 7, 9, 12, 15, 16, 17, and 18 of Paragraph 1 of Article 21 (Wording of 12 October 2000), Item 6 of the Same Paragraph (Wordings of 12 October 2000 and 25 September 2001), and Item 14 of the Same Paragraph (Wordings of 12 October 2000 and 8 November 2001) of the Republic of Lithuania’s Law on Local Self-Government, as well as the Republic of Lithuania’s Constitutional Law on the Procedure of the Application of the Law on the Alteration of Article 119 of the Constitution, and the Republic of Lithuania’s Law on the Entering of the Constitutional Law on the Procedure of the Application of the Law on the Alteration of Article 119 of the Constitution on the List of Constitutional Laws, with the Constitution of the Republic of Lithuania” (Official Gazette Valstybės žinios, 2003, No. 19-828; hereinafter also referred to as the Ruling).

2. In case 21/2003 of 30 May 2003, the Constitutional Court has passed the Ruling “On the Compliance of Paragraph 2 of Article 4 of the Republic of Lithuania’s Law on the Supplement and Amendment of Articles 86 and 87 of the Law on Elections to Municipal Councils and Its Supplement with Article 881 with the Constitution of the Republic of Lithuania and on the Compliance of the Resolution of the Government of the Republic of Lithuania (No. 457) ‘On Releasing the Chief of the Vilnius County from Office’ of 11 April 2003 with the Constitution of the Republic of Lithuania and Paragraph 1 of Article 9 of the Republic of Lithuania’s Law ‘On the Procedure of the Publication and Entry into Force of Laws and Other Legal Acts of the Republic of Lithuania’” (Official Gazette Valstybės žinios, 2003, No. 53-2361).

3. P. Papovas, a member of the Seimas, who, in case 49/2000, used to be a representative of the petitioner, a group of Seimas members, and who, in case No. 21/2003, used to be a representative of the party concerned, the Seimas, in his petition of 6 January 2004 requests the Constitutional Court to construe certain provisions of the Constitutional Court’s rulings of 24 December 2002 and 30 May 2003.

4. On 26 January 2004, the Constitutional Court adopted a decision concerning the division of the petition of P. Papovas of 6 January 2004 into two independent petitions: the petition requesting the construction of certain provisions of the Constitutional Court’s ruling of 24 December 2002, and the petition requesting the construction of certain provisions of the Constitutional Court’s ruling of 30 May 2003.

5. Seimas member P. Papovas requests the construction of the following provisions of the Constitutional Court’s ruling of 24 December 2002:

1) The same persons may not discharge the functions in the implementation of state authority and, at the same time, be members of municipal councils, through which the right of self-government is implemented. <…> Under the Constitution, the state officials who, according to the Constitution and laws enjoy the powers to control or supervise the activities of municipal councils, may not be members of municipal councils, either” (Item 20.4.1 of Section II of the reasoning part of the ruling);

2) “The constitutional provision that municipalities shall act freely and independently within their competence, which shall be established by the Constitution and laws, also means that in case the Constitution or laws assign certain functions to municipalities, then municipalities discharge these functions to the extent that they are assigned such functions. This means that a certain part of the competence of municipalities must be implemented directly, that the implementation of decisions adopted by municipal councils within the limits of their competence must not be bound by decisions (permissions, consents, etc.) of certain state institutions or officials. However, it needs to be emphasised that even the functions which exclusively belong to municipalities are regulated by law. Not a single one of these functions mean that in a respective area municipalities are absolutely independent” (Item 17.2 of Section II of the reasoning part of the ruling);

3) “Under the Constitution, the executive bodies accountable to municipal councils do not have the right to adopt decisions which are not grounded on laws, decisions of the Government and/or corresponding municipal councils, also such which, by their legal force, would compete with those passed by the municipal councils” (Item 21.4 of Section II of the reasoning part of the ruling);

4) “The adoption of the decisions on the municipal issues indicated in Paragraph 1 of Article 40, Paragraph 2 of Article 41, Paragraph 2 of Article 47, Paragraph 4 of Article 119, Paragraphs 1 and 2 of Article 121 and Article 122 of the Constitution is the exclusive constitutional competence of municipal councils. Under the Constitution, it is not permitted to establish the legal regulation which would create legal preconditions for executive bodies accountable to municipal councils to interfere with the exclusive constitutional competence of municipal councils in the adoption of the decisions on the issues indicated in Paragraph 1 of Article 40, Paragraph 2 of Article 41, Paragraph 2 of Article 47, Paragraph 4 of Article 119, Paragraphs 1 and 2 of Article 121 and Article 122 of the Constitution” (Item 21.4.1 of Section II of the reasoning part of the ruling);

5) “<…> the establishment, by law, of the functions and competence of the executive bodies accountable to municipal councils is left to be done by the Seimas. However, <…> the principles of accountability of executive bodies to the representation and of supremacy of municipal councils in regard to the executive bodies which are accountable to them, both of which are established in the Constitution, imply that the municipal councils have the powers to control the executive bodies which are established by and accountable to them. Under the Constitution, the right of self-government is implemented through municipal councils, thus, all decisions adopted by the executive bodies accountable to municipal councils on the issues assigned to the competence of municipalities are subordinated to decisions of corresponding municipal councils (Item 21.4.2 of Section II of the reasoning part of the ruling);

6) “As decisions adopted by municipal councils are inseparable from the execution of these decisions, then the municipal representative institutions as well as the municipal executive institutions, both of which are provided for in the Constitution, according to their competence are responsible for the implementation of the right of self-government and for the direct implementation of the laws, the decisions of the Government and the municipal council” (Item 21.5 of Section II of the reasoning part of the ruling);

7) “Municipal councils, while implementing the right of self-government guaranteed by the Constitution, may also establish other municipal institutions and other municipal establishments which have authoritative empowerments” (Item 21.6 of Section II of the reasoning part of the ruling).

II

1. At the Constitutional Court’s hearing, the representative of a group of Seimas members in case No. 49/2000 P. Papovas virtually reiterated the arguments set forth in his petition to construe certain provisions of the Ruling. Alongside, P. Papovas stated that, in his opinion, it is impossible to draw up a final list of offices, when the persons holding them cannot be members of municipal councils, however, he requested the Constitutional Court to formulate more precisely under what criteria it is possible to stipulate that persons holding certain offices cannot be municipal council members at the same time.

2. At the court hearing the representative of the Seimas, the party concerned, in case 49/2000 O. Buišienė, chief consultant to the Legal Department of the Office of the Seimas, noted that it is impossible to draw up a final list of offices, which is requested to be done by Seimas member P. Papovas, when the persons holding them cannot be members of municipal councils, however, it might be possible to more precisely define the powers, when the officials enjoying them cannot be municipal council members at the same time.

The Constitutional Court

holds that:

I

1. A ruling of the Constitutional Court is integral. Its operative part is based upon the arguments of the reasoning part (statement). Therefore, while construing its ruling, the Constitutional Court is bound both by the content of the operative part and that of reasoning of its ruling.

The decision adopted concerning the construction of a ruling of the Constitutional Court is inseparable from that ruling of the Constitutional Court (the Constitutional Court’s decision of 12 January 2000).

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

II

1. Seimas member P. Papovas requests the construction of the provision “The same persons may not discharge the functions in the implementation of state authority and, at the same time, be members of municipal councils, through which the right of self-government is implemented. <…> Under the Constitution, the state officials who, according to the Constitution and laws enjoy the powers to control or supervise the activities of municipal councils, may not be members of municipal councils, either” of the Ruling (Item 20.4.1 of Section II of the reasoning part of the Ruling).

1.1. It is clear from the petition that it requests the construction as to which state officials, according to the statement “the state officials who <…> enjoy the powers to control or supervise the activities of municipal councils, may not be members of municipal councils” of Item 20.4.1 of Section II of the reasoning part of the Ruling, should be categorised as officials who enjoy the powers to control or supervise the activities of municipal councils and who, due to this, may not be members of the municipal councils.

The Constitutional Court will only construe the said statement of Item 20.4.1 of Section II of the reasoning part of the Constitutional Court’s ruling of 24 December 2002.

1.2. It was held in the Ruling that, under the Constitution, state administration and local self-government are two systems of public power, that, under the Constitution, local self-government is self-regulation and self-action of the communities of the administrative units of state territory, in accordance with the competence defined by the Constitution and laws, which are provided for by law (i.e. territorial or local communities), and which are composed of permanent residents of these units (citizens of the Republic of Lithuania and other permanent residents).

Under the Constitution, in administrative units of the territory of the state which are provided for by law, the right of self-government is implemented through municipal councils. Paragraph 4 of Article 119 of the Constitution provides that for the direct implementation of the laws of the Republic of Lithuania, the decisions of the Government and the municipal council, the municipal council shall form executive bodies accountable to it. It was held in the Constitutional Court’s ruling of 24 December 2002 that the executive bodies which are accountable to municipal councils are inseparable part of the self-government mechanism, and that the municipal representative institutions as well as the municipal executive institutions, both of which are provided for in the Constitution, according to their competence are responsible for the implementation of the right of self-government and for the direct implementation of the laws, the decisions of the Government and the municipal council.

Self-government presupposes certain freedom and autonomy of activities, as well as independence from state authority institutions. The principle of the coordination of interests of municipalities and those of the state manifests itself, inter alia, in the fact that the state supervises municipal activities in the form prescribed by law (the Constitutional Court’s ruling of 18 February 1998).

It was held in the Constitutional Court’s ruling of 24 December 2002 that a certain part of the competence of municipalities must be implemented directly, that the implementation of decisions adopted by municipal councils within the limits of their competence must not be bound by decisions (permissions, consents, etc.) of certain state institutions or officials.

It was held in the Constitutional Court’s ruling of 24 December 2002 that the formula “state officials who, according to the Constitution and laws, enjoy the powers to control or supervise activities of municipalities” should be construed as comprising also those state officials on whose decisions depends the implementation of the competence of the municipal councils provided for by the Constitution.

1.3. The provision of Paragraph 2 of Article 120 of the Constitution that municipalities shall act freely and independently within their competence, which shall be established by the Constitution and laws, means that the legislature has both the right and the duty to define, while taking account of the exclusive competence of municipalities which is directly established in the Constitution, the competence of municipal councils and executive bodies accountable to them. While defining the competence of municipal councils and executive bodies accountable to them, the legislature can also establish the procedure of realisation of this competence, the supervision and control over municipal activities, as well as the officials who enjoy powers to control or supervise the activities of municipal councils and executive bodies accountable to them.

The formula “powers to control and supervise municipal activities” means that respective state officials (servants and other persons irrespective of how they are referred to in laws; hereinafter—state officials) have the right to adopt decisions upon which depend the adoption and implementation of decisions of municipal councils within their competence defined by the Constitution and laws. It has been held in the ruling that members of the municipal councils may not be unequal according to their legal status. This constitutional requirement would be violated if a person who, under the Constitution and laws, enjoyed powers to adopt the decisions that might determine the adoption and implementation of decisions of municipal councils within the competence defined in the Constitution and laws. It is due to this that state officials who, under the Constitution and laws, enjoy powers to control and supervise municipal activities cannot, at the same time, be members of municipal councils as well.

It needs to be emphasised that the state officials who enjoy powers to conduct only organisational, technical etc. control or supervision over the executive bodies accountable to municipal councils, and over municipal establishments or enterprises (e.g., in the areas of the environment, sanitation and hygiene, education, labour security, economy and trade, construction, tax administration, clerical work and many others) cannot be categorised as state officials who have the right to adopt decisions upon which the adoption and implementation of decisions of municipal councils within their competence defined in the Constitution and laws would be dependent. Such state officials may hold their office and be municipal council members at the same time. While deciding whether certain state officials should be categorised as state officials who have the right to adopt decisions upon which the adoption and implementation of decisions of municipal councils within their competence defined in the Constitution and laws would be dependent, and who cannot be municipal council members at the same time, one must assess in every particular case the content of powers established to them in the Constitution and laws.

1.4. Taking account of the arguments set forth, it should be held that the statement “the state officials who <…> enjoy the powers to control or supervise the activities of municipal councils, may not be members of municipal councils” of Item 20.4.1 of Section II of the reasoning part of the Constitutional Court’s ruling of 24 December 2002 means, inter alia, that the state officials (servants and other persons irrespective of how they are referred to in laws) who, under the Constitution and laws, have the right to adopt decisions upon which depend the adoption and implementation of decisions of municipal councils within their competence defined by the Constitution, may not be municipal council members at the same time; this statement does not mean that the state officials enjoying the powers to conduct only organisational, technical etc. control or supervision over the executive bodies accountable to municipal councils, and over municipal establishments or enterprises cannot be municipal council members.

2. Seimas member P. Papovas requests the construction of the provision “The constitutional provision that municipalities shall act freely and independently within their competence, which shall be established by the Constitution and laws, also means that in case the Constitution or laws assign certain functions to municipalities, then municipalities discharge these functions to the extent that they are assigned such functions. This means that a certain part of the competence of municipalities must be implemented directly, that the implementation of decisions adopted by municipal councils within the limits of their competence must not be bound by decisions (permissions, consents, etc.) of certain state institutions or officials. However, it needs to be emphasised that even the functions which exclusively belong to municipalities are regulated by law. Not a single one of these functions mean that in a respective area municipalities are absolutely independent” of the Ruling (Item 17.2 of Section II of the reasoning part of the Ruling).

2.1. It is clear from the petition that it requests the construction of whether the statements “<…> the functions which exclusively belong to municipalities are regulated by law. Not a single one of these functions mean that in a respective area municipalities are absolutely independent” of Item 17.2 of Section II of the reasoning part of the Ruling mean that the laws regulating the implementation of the functions which exclusively belong to municipalities may also establish the right of the Government or ministries to establish certain requirements and norms to municipalities.

The Constitutional Court will construe only the indicated statements of Item 17.2 of Section II of the reasoning part of the Ruling.

2.2. It has been mentioned that the fact that municipalities shall act freely and independently within their competence, which shall be established by the Constitution and laws, means that the legislature has both the right and the duty to define, while taking account of the exclusive competence of municipalities which is directly established in the Constitution, the competence of municipal councils.

It has also been mentioned that that a certain part of the competence of municipalities must be implemented directly, that the implementation of decisions adopted by municipal councils within the limits of their competence must not be bound by decisions (permissions, consents, etc.) of certain state institutions or officials.

Through the competence, the content of municipal functions is disclosed, therefore, under the Constitution, municipal functions may only be established by law. This cannot be done by substatutory legal act.

2.3. Alongside, it needs to be noted that, under Paragraph 4 of Article 119 of the Constitution, for the direct implementation of the laws of the Republic of Lithuania, the decisions of the Government and the municipal council, the municipal council shall form executive bodies accountable to it. Thus, under the Constitution, in their activities all municipal institutions must, inter alia, follow government resolutions.

2.4. According to the Constitution, the Government shall administer the affairs of the country, protect the inviolability of the territory of the Republic of Lithuania, guarantee State security and public order, shall execute laws and resolutions of the Seimas concerning the implementation of laws, as well as the decrees of the President of the Republic, shall discharge other duties prescribed to the Government by the Constitution and other laws (Items 1, 2 and 7 of Article 94 of the Constitution). Under Paragraph 1 of Article 95 of the Constitution, the Government shall resolve the affairs of state administration at its sittings by resolutions adopted by majority vote of all members of the Government.

The Government of the Republic of Lithuania shall consist of the Prime Minister and ministers (Article 91 of the Constitution). Under Paragraph 1 of Article 98 of the Constitution, a minister shall head his respective ministry, shall resolve issues belonging to the competence of his ministry and shall also discharge other functions provided for by law. Paragraph 2 of Article 96 of the Constitution provides, inter alia, that the ministers direct the branches of administration entrusted to them and are directly subordinate to the Prime Minister. Paragraph 2 of Article 95 of the Constitution provides that Resolutions of the Government shall be signed by the Prime Minister and the minister of an appropriate branch.

While executing its functions, the Government, according to the competence established in the Constitution and laws, has the right to pass resolutions which are obligatory to all subjects of legal relations, thus, also to municipal institutions. Thus, under the competence established in the Constitution and laws, the Government may, by means of its resolutions, also establish procedure (procedures), in accordance of which requirements of laws must be implemented, thus, also the requirements of laws whereby municipal functions are established.

If the laws provide that certain relations connected with the procedure (procedures) of implementation of requirements laws, thus, also the requirements of the laws whereby municipal functions are established, are regulated by the Government, then the Government must do so; such legal regulation established by the Government is obligatory to municipal institutions as well. If it is established in the laws that certain relations connected with the procedure (procedures) of the implementation of laws, thus, also the laws establishing municipal functions, are regulated by an institution empowered by the Government (for example, a ministry), then the Government has a duty to establish, by means of a resolution, which state institutions have to do so, while the latter institution (its head) must issue a respective legal act; such legal regulation established by the institution (its head) empowered by the Government is obligatory to municipal institutions as well. If it is established in the laws that certain relations connected with the procedure (procedures) of the implementation of laws, thus, also the laws establishing municipal functions, are regulated by a ministry (minister) or another state institution (its head), then this ministry (minister) or another state institution (its head) must issue a corresponding legal act, and the legal regulation established by this ministry (minister) or other state institution (its head) is obligatory to municipal institutions as well. However, these government resolutions, substatutory legal acts issued by ministries (ministers) or other state institutions (their heads), cannot change or distort the legal regulation established in laws, these substatutory legal acts cannot establish any such legal regulations which would compete with that established in laws.

It needs to be noted that neither the laws, nor substatutory legal acts issued by the Government, ministries (ministers) or other state institutions (their heads) may deny the constitutional provision that municipalities shall act freely and independently within their competence, which shall be established by the Constitution and laws. It also needs to be noted that, under Article 122 of the Constitution, municipal councils shall have the right to apply to court regarding the violation of their rights.

2.5. Taking account of the arguments set forth, it should be concluded that the statements “<…>the functions which exclusively belong to municipalities are regulated by law. Not a single one of these functions mean that in a respective area municipalities are absolutely independent” of Item 17.2 of Section II of the reasoning part of the Ruling mean, inter alia, that the procedure (procedures) of the implementation of the requirements of the laws whereby municipal functions are established, may also be established by substatutory legal acts issued by the Government, ministries (ministers) or other state institutions (their heads), in case this is provided for in laws.

3. Seimas member P. Papovas requests the construction of the provision “under the Constitution, the executive bodies accountable to municipal councils do not have the right to adopt decisions which are not grounded on laws, decisions of the Government and/or corresponding municipal councils, also such which, by their legal force, would compete with those passed by the municipal councils” of the Ruling (Item 21.4 of Section II of the reasoning part of the Ruling).

3.1. It is clear from the petition that it requests the construction of the statement “the executive bodies accountable to municipal councils do not have the right to adopt decisions which are not grounded on <…> decisions of <…> municipal councils, also such which, by their legal force, would compete with those passed by the municipal councils” of Item 21.4 of Section II of the reasoning part of the Ruling in these aspects: what is the kind decisions whose adoption is categorised as belonging to the competence of municipal councils, and what decisions belong to the competence of municipal executive institutions; whether the adoption of all decisions related with founding municipal establishments, enterprises, the appointment of their heads, supervision of these establishments, enterprises, etc. belong to the exclusive competence of municipal councils; whether the laws regulating the implementation of the functions which exclusively belong to municipalities can establish the right of municipal councils to transfer part of the powers, related with the implementation of these functions, to other municipal institutions?

The Constitutional Court will construe only the said statement of Item 21.4 of Section II of the reasoning part of the Ruling.

3.2. Under the Constitution, municipal functions and competence can only be established by law.

It needs to be noted that the competence of municipal councils is expressis verbis established in the Constitution itself. Decisions on these issues can only be adopted by municipal councils. This is the exclusive constitutional competence of municipal councils, because (1) the legislature cannot stipulate that decisions on these issues are adopted not by municipal councils, but the executive bodies accountable to them or other municipal institutions; (2) municipal councils by themselves may transfer the right to adopt such decisions neither to the executive bodies accountable to the municipal councils, nor to any other municipal institutions, while the legislature cannot establish any such legal regulation under which municipal councils would be permitted to transfer the right to adopt such decisions to the executive bodies accountable to the municipal councils or other municipal institutions.

It was held in the Constitutional Court’s ruling of 24 December 2002 that the establishment, by law, of the functions and competence of the executive bodies accountable to municipal councils is left to be done by the Seimas. Thus, on the issues whereby the competence of municipal councils is not expressis verbis established in the Constitution (is not exceptional constitutional competence of municipal councils), the legislature, under the Constitution, enjoys the powers to establish as to the adoption of which decisions is within the competence of municipal councils, and of which—within the competence of the executive bodies accountable to municipal councils or other municipal institutions. In cases when the laws provide that certain decisions are adopted by municipal councils, the municipal councils may transfer this right to adopt such decisions neither to the executive bodies accountable to the municipal councils, nor other municipal institutions. However, the legislature, under the Constitution, may also establish, by means of a law, such legal regulation under which certain decisions are adopted by municipal councils, but that they may transfer the right to adopt such decisions to the executive bodies accountable to the municipal councils; however, in such cases the following conditions are to be met: (1) the powers of municipal councils to transfer the right to adopt certain decisions to the executive bodies accountable to the municipal councils must be established expressis verbis in the law; (2) the said powers cannot be transferred to municipal institutions that, according to the law, are not executive bodies accountable to the municipal councils. Still, in other cases the legislature may, by means of a law, directly establish as regards the questions the decisions on which are adopted by executive bodies accountable to the municipal councils.

3.3. In the course of the construction of the statement “the executive bodies accountable to municipal councils do not have the right to adopt decisions which are not grounded on <…> decisions of <…> municipal councils, also such which, by their legal force, would compete with those passed by the municipal councils” of Item 21.4 of Section II of the reasoning part of the Ruling, which was pointed out by Seimas member P. Papovas, it needs to be noted that, as it was held in the Constitutional Court’s ruling of 24 December 2002 as well as in this decision of the Constitutional Court, under the Constitution, in administrative units of the territory of the state which are provided for by law, the right of self-government is implemented through municipal councils. Therefore, while construing the statement pointed out by Seimas member P. Papovas, one must also take account of other statements of the same item, which substantiate the provision “under the Constitution, the executive bodies accountable to municipal councils do not have the right to adopt decisions which are not grounded on laws, decisions of the Government and/or corresponding municipal councils, also such which, by their legal force, would compete with those passed by the municipal councils” of Item 21.4 of Section II of the reasoning part of the Ruling which was pointed out by Seimas member P. Papovas, in particular, of those stating that “executive bodies which are accountable to municipal councils may not be treated as ones through which the right of self-government is implemented by territorial communities, i.e. as self-government institutions, since under Paragraph 1 of Article 119 of the Constitution the right of self-government is implemented through municipal councils”, ”<…> the municipal councils have the constitutional competence to control the said executive bodies. Therefore, the said executive bodies may not replace municipal councils, or to bring municipal councils under their control, or to dictate them. The powers of the executive bodies may not be dominant in respect to the powers of municipal councils”, that “it is not permitted to establish the legal regulation whereby the executive bodies accountable to municipal councils would be equated to the municipal councils which have established them, let alone the legal regulation whereby the powers of the executive bodies established by and accountable to municipal councils would restrict the powers of the latter, or under which municipal councils would lose an opportunity to control the executive bodies established by and accountable to them”, that “all decisions of the said executive bodies must be grounded on laws, as well as decisions of the Government and/or corresponding municipal councils”.

Thus, under the Constitution, the legislatively established legal regulation under which in certain cases municipal councils may transfer the right to adopt certain decisions to the executive bodies accountable to the municipal councils cannot be such so that preconditions might be created for a legal situation when the executive bodies accountable to the municipal councils would replace, or subordinate the municipal councils to them, or would be equalled to them, would impose their will on the municipal councils, the powers of the executive bodies would dominate over those of the municipal councils, or the powers of the municipal councils would be restricted by those of the executive bodies established by them and accountable to them, also when municipal councils would lose an opportunity to control these executive bodies. By such legal regulation one would also violate the principle of the superiority of municipal councils over the executive bodies that are accountable to them, which is entrenched in the Constitution and stated in the Constitutional Court’s ruling of 24 December 2002, would distort the constitutional concept of local self-government and the essence of self-government rights of territorial communities, which are implemented through municipal councils.

3.4. The Ruling does not contain expressis verbis any provisions regarding the founding of municipal establishments and enterprises, the appointment of their heads, and supervision of these establishments and enterprises.

Alongside, it needs to be noted that the formula “decisions of municipal councils” of the statement “the executive bodies accountable to municipal councils do not have the right to adopt decisions which are not grounded on <…> decisions of <…> municipal councils, also such which, by their legal force, would compete with those passed by the municipal councils” of Item 21.4 of Section II of the reasoning part of the Ruling, which was pointed out by Seimas member P. Papovas, also includes the decisions linked with founding municipal establishments and enterprises, the appointment of their heads, and supervision of these establishments and enterprises.

The legislature, when it establishes, by means of a law, as to who (municipal councils or the executive bodies accountable to them) has the right to adopt decisions on founding municipal establishments and enterprises, the appointment of their heads, and supervision of these establishments and enterprises, is bound by the aforesaid constitutional requirements: the decisions on the questions categorised as belonging to the exceptional constitutional competence of municipal councils can be adopted only by municipal councils; the legislature, under the Constitution, has powers to establish as to what decisions on questions categorised as not belonging to the exclusive constitutional competence of municipal councils are within the competence of municipal councils, and which—of executive bodies, which are accountable to the municipal councils, or other municipal institutions; in order that municipal councils would transfer the right to adopt decisions to the executive bodies accountable to the municipal councils, this must be directly indicated in the law; the said requirements cannot be transferred to the municipal institutions which, by law, are not executive bodies accountable to the municipal councils.

The founding of municipal establishments and enterprises is inseparable from the constitutional competence of municipalities to form and confirm their budgets (Paragraph 1 of Article 121 of the Constitution). Within this context, it needs to be noted that Item 21.4.1 of Section II of the reasoning part of the Constitutional Court’s ruling of 24 December 2002 indicates that the adoption of the decisions on the municipal issues pointed out in, inter alia, Paragraph 1 of Article 121 of the Constitution is the exclusive constitutional competence of municipal councils, and that, under the Constitution, it is not permitted to establish the legal regulation which would create legal preconditions for executive bodies accountable to municipal councils to interfere with the exclusive constitutional competence of municipal councils in the adoption of the decisions on the issues indicated in, inter alia, Paragraph 1 of Article 121 of the Constitution. Thus, the legislature, having established, by means of a law, that municipalities may found their enterprises and establishments, cannot establish any such legal regulation under which decisions on founding these enterprises and establishments would be adopted not by municipal councils but by the executive bodies accountable to them. Otherwise, the exclusive constitutional competence of municipal councils to form and confirm their budgets, which is established in Paragraph 1 of Article 121 of the Constitution, would be violated.

The issue of what are the limits of the discretion of the legislature when it establishes, by means of a law, as to who (whether municipal councils or executive bodies accountable to them) has the right to adopt decisions concerning appointment of heads of municipal establishments and enterprises, and supervision of these establishments and enterprises, should be assessed in a different manner. In these areas, the legislature enjoys discretion to stipulate that these decisions are either adopted by municipal councils, or that they are adopted by executive bodies accountable to the municipal councils, or that these decisions are adopted by municipal councils, but that the latter may transfer the right to adopt such decisions to the executive bodies accountable to the municipal councils; in this case the powers of municipal councils to transfer the said rights to the executive bodies accountable to the municipal councils must be directly indicated in the law.

It also needs to be noted that after the law establishes the powers of municipal councils to adopt decisions concerning transfer of the supervision over municipal establishments and enterprises to the executive bodies accountable to the municipal councils, one cannot deny the right of municipal councils to supervise these establishments and enterprises by themselves.

3.5. Taking account of the arguments set forth, it should be held that the statement “the executive bodies accountable to municipal councils do not have the right to adopt decisions which are not grounded on <…> decisions of <…> municipal councils, also such which, by their legal force, would compete with those passed by the municipal councils” of Item 21.4 of Section II of the reasoning part of the Ruling means, inter alia, that only municipal councils can adopt decisions on questions categorised as belonging to the exclusive constitutional competence of municipal councils, but not the executive bodies accountable to them or other municipal institutions; under the Constitution, the legislature enjoys the powers to establish as to what decisions on questions categorised as not belonging to the exclusive constitutional competence of municipal councils are within the competence of municipal councils, and which decisions may be adopted by executive bodies accountable to municipal councils or other municipal institutions; the fact that municipal councils can transfer the right to adopt decisions to executive bodies accountable to the municipal councils must be directly indicated in the law; the said powers cannot be transferred to the municipal institutions which, under the law, are not executive bodies accountable to the municipal councils.

4. Seimas member P. Papovas requests the construction of the provision “The adoption of the decisions on the municipal issues indicated in Paragraph 1 of Article 40, Paragraph 2 of Article 41, Paragraph 2 of Article 47, Paragraph 4 of Article 119, Paragraphs 1 and 2 of Article 121 and Article 122 of the Constitution is the exclusive constitutional competence of municipal councils. Under the Constitution, it is not permitted to establish the legal regulation which would create legal preconditions for executive bodies accountable to municipal councils to interfere with the exclusive constitutional competence of municipal councils in the adoption of the decisions on the issues indicated in Paragraph 1 of Article 40, Paragraph 2 of Article 41, Paragraph 2 of Article 47, Paragraph 4 of Article 119, Paragraphs 1 and 2 of Article 121 and Article 122 of the Constitution” of the Ruling (Item 21.4.1 of Section II of the reasoning part of the Ruling).

4.1. The provision of the Ruling pointed out by Seimas member P. Papovas mentions Paragraph 2 of Article 47 of the Constitution. It should be noted that the Ruling was adopted on 24 December 2002, while it was published in the official gazette Valstybės žinios and went into effect on 25 February 2003.

At the time of the adoption of the Ruling, Paragraph 2 (wording of 20 June 1996) of Article 47 of the Constitution used to provide:

Municipalities, other national subjects as well as those foreign subjects conducting economic activities in Lithuania which are specified by the constitutional law in accordance with the criteria of European and Transatlantic integration chosen by the Republic of Lithuania may be permitted to acquire the ownership of non-agricultural land plots required for the construction and operation of buildings and facilities necessary for their direct activities. The procedure, conditions and restrictions of the acquisition of the ownership of such a plot shall be established by the constitutional law.”

On 23 January 2003, the Seimas adopted the Republic of Lithuania’s Law on the Amendment of Article 47 of the Constitution of the Republic of Lithuania, by Article 1 whereof it amended Article 47 (wording of 20 June 1996) of the Constitution. This law went into effect on 24 February 2003. In Article 47 (wording of 23 January 2003) of the Constitution there is no longer the legal regulation that used to be established in Article 47 (wording of 20 June 1996) of the Constitution.

4.2. It is clear from the petition that it requests the construction of the statement “under the Constitution, it is not permitted to establish the legal regulation which would create legal preconditions for executive bodies accountable to municipal councils to interfere with the exclusive constitutional competence of municipal councils” of Item 21.4.1 of Section II of the reasoning part of the Ruling in these aspects: what is the kind of decisions the competence of adoption of which lies with municipal councils, and what kind of decisions must be adopted by municipal executive institutions; whether municipal councils enjoy the competence to adopt all decisions linked with founding municipal establishments and enterprises, the appointment of their heads, their supervision etc.; whether one can establish, by means of laws regulating the implementation of the functions belonging exclusively to municipalities, the right of municipal councils to transfer part of the powers linked with the implementation of these powers to other municipal institutions?

The Constitutional Court will construe only the aforementioned statement of Item 21.4.1 of Section II of the reasoning part of the Ruling.

4.3. The statement “under the Constitution, it is not permitted to establish the legal regulation which would create legal preconditions for executive bodies accountable to municipal councils to interfere with the exclusive constitutional competence of municipal councils” of Item 21.4.1 of Section II of the reasoning part of the Constitutional Court’s ruling of 24 December 2002 requested to be construed by Seimas member P. Papovas is inseparably related with another statement whose construction he also requests, i.e. the statement “the executive bodies accountable to municipal councils do not have the right to adopt decisions which are not grounded on <…> decisions of <…> municipal councils, also such which, by their legal force, would compete with those passed by the municipal councils” of Item 21.4 of Section II of the reasoning part of the Ruling: if the executive bodies accountable to the municipal councils adopted decisions that would not be grounded on municipal council decisions, also decisions which, by their legal force, would be equal to decisions of municipal councils, it would mean that the executive bodies accountable to the municipal councils are interfering with the competence of the municipal councils (the exclusive constitutional competence and/or the competence established by law).

4.4. In this decision of the Constitutional Court, while construing the statement “the executive bodies accountable to municipal councils do not have the right to adopt decisions which are not grounded on <…> decisions of <…> municipal councils, also such which, by their legal force, would compete with those passed by the municipal councils” of Item 21.4 of Section II of the reasoning part of the Ruling, it was held that, under the Constitution, municipal functions and competence can only be established by law; that certain competence of municipal councils is expressis verbis established in the Constitution itself (exclusive constitutional competence)—decisions on these issues can only be adopted by municipal councils; that, under the Constitution, the legislatively established legal regulation under which in certain cases municipal councils may transfer the right to adopt certain decisions to the executive bodies accountable to the municipal councils cannot be such so that preconditions might be created for a legal situation when the executive bodies accountable to the municipal councils would replace, or subordinate the municipal councils to them, or would be equalled to them, would impose their will on the municipal councils, the powers of the executive bodies would dominate over those of the municipal councils, or the powers of the municipal councils would be restricted by those of the executive bodies established by them and accountable to them, also when municipal councils would lose an opportunity to control these executive bodies—by such legal regulation one would also violate the principle of the superiority of municipal councils over the executive bodies that are accountable to them, would distort the constitutional concept of local self-government and the essence of self-government rights of territorial communities, which are implemented through municipal councils.

4.5. It has been mentioned that the Ruling does not contain expressis verbis any provisions regarding the founding of municipal establishments and enterprises, the appointment of their heads, and supervision of these establishments and enterprises.

It has been mentioned that the founding of municipal establishments and enterprises is inseparable from the constitutional competence of municipalities to form and confirm their budgets (Paragraph 1 of Article 121 of the Constitution) and that the adoption of the decisions on the municipal issues (formation and confirmation of municipal budgets) indicated in, inter alia, Paragraph 1 of Article 121 of the Constitution is the exclusive constitutional competence of municipal councils, therefore, the legislature, having established, by means of a law, that municipalities may found their enterprises and establishments, cannot establish any such legal regulation under which decisions on founding these enterprises and establishments would be adopted not by municipal councils but by the executive bodies accountable to them, since, otherwise, the exclusive competence of municipal councils to form and confirm their budgets, which is established in Paragraph 1 of Article 121 of the Constitution, would be violated. It has also been mentioned that the legislature enjoys discretion to establish as to who (municipal councils or executive bodies accountable to them) has the right to adopt decisions on the appointment of heads of municipal establishments and enterprises, and on the supervision of these establishments and enterprises.

Therefore, it should be held that the formula “exclusive constitutional competence of municipal councils” of the statement “under the Constitution, it is not permitted to establish the legal regulation which would create legal preconditions for executive bodies accountable to municipal councils to interfere with the exclusive constitutional competence of municipal councils” of Item 21.4.1 of Section II of the reasoning part of the Ruling also includes the competence of municipal councils to adopt decisions linked with founding municipal establishments and enterprises. This formula does not include the competence of municipal councils to adopt decisions linked with the appointment of heads of municipal establishments and enterprises, and with supervision of these establishments and enterprises.

It has been held in this decision of the Constitutional Court that the legislature, when it establishes, by means of a law, as to who (municipal councils or the executive bodies accountable to them) has the right to adopt decisions on founding municipal establishments and enterprises, the appointment of their heads, and supervision of these establishments and enterprises, is bound by the constitutional requirements mentioned in this decision of the Constitutional Court: the decisions on the questions categorised as belonging to the exceptional constitutional competence of municipal councils can be adopted only by municipal councils; the legislature, under the Constitution, has powers to establish as to what decisions on questions categorised as not belonging to the exclusive constitutional competence of municipal councils are within the competence of municipal councils, and which—of executive bodies, which are accountable to the municipal councils, or other municipal institutions; in order that municipal councils would transfer the right to adopt decisions to the executive bodies accountable to the municipal councils, this must be directly indicated in the law; the said requirements cannot be transferred to the municipal institutions which, by law, are not executive bodies accountable to the municipal councils. It was also held that after the law establishes the powers of municipal councils to adopt decisions concerning transfer of the supervision over municipal establishments and enterprises to the executive bodies accountable to the municipal councils, one cannot deny the right of municipal councils to supervise these establishments and enterprises by themselves.

4.6. Taking account of the fact that the statement “under the Constitution, it is not permitted to establish the legal regulation which would create legal preconditions for executive bodies accountable to municipal councils to interfere with the exclusive constitutional competence of municipal councils” of Item 21.4.1 of Section II of the reasoning part of the Constitutional Court’s ruling of 24 December 2002 is inseparably related with the statement “the executive bodies accountable to municipal councils do not have the right to adopt decisions which are not grounded on <…> decisions of <…> municipal councils, also such which, by their legal force, would compete with those passed by the municipal councils” of Item 21.4 of Section II of the reasoning part of the Ruling, also of the arguments on the grounds of which the aforesaid statement of Item 21.4 of Section II of the reasoning part of the Ruling is construed in this decision of the Constitutional Court, it should be held that the statement “under the Constitution, it is not permitted to establish the legal regulation which would create legal preconditions for executive bodies accountable to municipal councils to interfere with the exclusive constitutional competence of municipal councils” of Item 21.4.1 of Section II of the reasoning part of the Ruling means that decisions concerning the issues categorised as belonging to the exclusive constitutional competence of municipal councils may be adopted only by municipal councils, but not by executive bodies accountable to them, nor any other municipal institutions.

5. Seimas member P. Papovas requests the construction of the provision “<…> the establishment, by law, of the functions and competence of the executive bodies accountable to municipal councils is left to be done by the Seimas. However, <…> the principles of accountability of executive bodies to the representation and of supremacy of municipal councils in regard to the executive bodies which are accountable to them, both of which are established in the Constitution, imply that the municipal councils have the powers to control the executive bodies which are established by and accountable to them. Under the Constitution, the right of self-government is implemented through municipal councils, thus, all decisions adopted by the executive bodies accountable to municipal councils on the issues assigned to the competence of municipalities are subordinated to decisions of corresponding municipal councils” of the Ruling (Item 21.4.2 of Section II of the reasoning part of the Ruling).

5.1. It is clear from the petition that it requests the construction of whether the statements “the establishment, by law, of the functions and competence of the executive bodies accountable to municipal councils is left to be done by the Seimas. <…> all decisions adopted by the executive bodies accountable to municipal councils on the issues assigned to the competence of municipalities are subordinated to decisions of corresponding municipal councils” of Item 21.4.2 of Section II of the reasoning part of the Ruling mean that municipal councils may transfer the right to municipal executive institutions to found other establishments, to appoint heads of these establishments, to conduct supervision of their activities etc., and whether municipal executive institutions (directors of administrations) may transfer their powers or part thereof to deputy directors, other employees of administrations.

The Constitutional Court will construe only the said statements of Item 21.4.2 of Section II of the reasoning part of the Constitutional Court’s ruling of 24 December 2002.

5.2. It needs to be noted that under Paragraph 4 of Article 119 of the Constitution, for the direct implementation of the laws of the Republic of Lithuania, the decisions of the Government and the municipal council, the municipal council shall establish executive bodies accountable to it.

It also needs to be noted that, under Paragraph 2 of Article 120 of the Constitution, municipalities shall act freely and independently within their competence, which shall be established by the Constitution and laws, while under Paragraph 3 of Article 119 of the Constitution, the procedure for the organisation and activities of self-government institutions shall be established by law.

It was held in the Constitutional Court’s ruling of 24 December 2002 that the Constitution provides for two types of municipal institutions: municipal councils (representative institutions) and the executive bodies accountable to them (executive institutions), and that in the cases established in the Constitution and laws, authoritative empowerments are granted to the municipal representative and executive institutions. It was also held in the Ruling that the executive bodies which are accountable to them, and which are inseparable part of the self-government mechanism, also that both the municipal representative institutions which are provided for in the Constitution and the municipal executive institutions are responsible within their competence for the direct implementation of laws, Government and municipal decisions.

It was held in the Constitutional Court’s ruling of 24 December 2002 and in this decision of the Constitutional Court that the establishment, by law, of the functions and competence of the executive bodies accountable to municipal councils is left to be done by the Seimas. It was also held in the Constitutional Court’s ruling of 24 December 2002 that the Constitution does not establish any types of executive bodies (collegial, single-person bodies), which are accountable to municipal councils, nor the procedure of their formation, their names, and interrelations; their functions and competence are established only in general terms; that when regulating the formation, functions and competence of the executive bodies accountable to municipal councils by law, one must pay heed to the principles of local self-government, which are established in the Constitution: the representative democracy, accountability of executive bodies to the representation, the supremacy of municipal councils in respect to the executive bodies which are accountable to them, etc.; that the legislature enjoys the discretion to establish by law as to the procedure, whether by election or in other fashion, the said executive bodies are formed, also, which of the said bodies are collegial and which are single-person, also, the type of their interrelations; that the legislature also enjoys the discretion to establish by law the structure of collegial executive bodies and the number of their members, or to leave it, by law, to be done by municipal councils.

It has also been held in this decision of the Constitutional Court that on the issues whereby the competence of municipal councils is not expressis verbis established in the Constitution (is not exceptional constitutional competence of municipal councils), the legislature, under the Constitution, enjoys the powers to establish as to the adoption of which decisions is within the competence of municipal councils, and of which—within the competence of the executive bodies accountable to municipal councils or other municipal institutions; that in cases when the laws provide that certain decisions are adopted by municipal councils, the municipal councils may transfer this right to adopt such decisions neither to the executive bodies accountable to the municipal councils, nor other municipal institutions; that the legislature, under the Constitution, may also establish, by means of a law, such legal regulation under which certain decisions are adopted by municipal councils, but that they may transfer the right to adopt such decisions to the executive bodies accountable to the municipal councils; however, in such cases the powers of municipal councils to transfer the right to adopt certain decisions to the executive bodies accountable to the municipal councils must be established expressis verbis in the law and the said powers cannot be transferred to municipal institutions that, according to the law, are not executive bodies accountable to the municipal councils; that still in other cases the legislature may, by means of a law, directly establish which decisions are adopted by municipal councils, and which—by executive bodies accountable to the municipal councils.

It must be emphasised that the legislature, while establishing the competence of municipal councils and that of executive bodies accountable to the latter, must pay heed to the constitutional imperatives whereby executive bodies accountable to municipal councils are formed by the municipal councils themselves, and that the municipal councils form executive bodies accountable to the latter under the law. As mentioned before, under the Constitution, it is not permitted to establish any such legal regulation whereby executive bodies accountable to municipal councils would impose their will on the municipal councils, or that the powers of the executive bodies would dominate over those of the municipal councils, or that the powers of the municipal councils would be restricted by those of the executive bodies established by them and accountable to them. It has also been mentioned that, under the Constitution, the executive bodies accountable to the municipal councils cannot replace, or subordinate the municipal councils to them, that it is not permitted to establish any such legal regulation under which executive bodies accountable to municipal councils are equalled to the municipal councils that have formed them, or when municipal councils would lose an opportunity to control the executive bodies accountable to them.

Thus, according to the Constitution, executive bodies formed and accountable to municipal councils do not enjoy the right to transfer, by themselves, the powers established to them to other subjects which are not executive bodies formed and accountable to municipal councils, for this would mean that these powers would be taken not by subjects formed by the municipal councils, but by other subjects (bodies, institutions, units, officials) formed by the executive bodies themselves, which are not in line with the constitutional concept of executive bodies formed by and accountable to municipal councils. Thus, preconditions would be created to violate also the constitutional principle of accountability of executive bodies to the representation.

This does not mean that the law cannot directly establish the powers of individual officials of executive bodies, or that the law cannot stipulate that municipal councils themselves establish, under the law, certain powers of certain officials of executive bodies. Also, the Constitution does not prohibit establishing, by means of a law, a system of executive bodies formed by municipal councils and accountable to them, in which it might be possible for certain executive bodies formed by municipal councils and accountable to them to transfer, under the law, their powers to other executive bodies formed by municipal councils and accountable to them. However, it needs to be noted that in all cases one must not deny the right of municipal councils to control all executive bodies formed by and accountable to municipal councils, nor the accountability of the executive bodies to the representation for their decisions or those of their officials.

5.3. Taking account of the arguments set forth, it should be held that the statements “the establishment, by law, of the functions and competence of the executive bodies accountable to municipal councils is left to be done by the Seimas. <…> all decisions adopted by the executive bodies accountable to municipal councils on the issues assigned to the competence of municipalities are subordinated to decisions of corresponding municipal councils” of Item 21.4.2 of Section II of the reasoning part of the Constitutional Court’s ruling of 24 December 2002 mean, inter alia, that the legislature, while paying heed to the principles of local self-government entrenched in the Constitution, enjoys discretion to legislatively establish the interrelations, functions and powers of executive bodies accountable to municipal councils; the legislature, while paying heed to the principles of local self-government entrenched in the Constitution, enjoys discretion to legislatively establish the structure and the number of members of executive bodies accountable to municipal councils, or to leave it, by law, to be done by municipal councils; that, under the Constitution, it is not permitted to establish any such legal regulation whereby executive bodies accountable to municipal councils would impose their will on the municipal councils, or that the powers of the executive bodies would dominate over those of the municipal councils, or that or the powers of the municipal councils would be restricted by those of the executive bodies established by them and accountable to them; that the executive bodies accountable to the municipal councils cannot replace, or subordinate the municipal councils to them; that it is not permitted to establish any such legal regulation under which executive bodies accountable to municipal councils are equalled to the municipal councils that have formed them, or when municipal councils would lose an opportunity to control the executive bodies accountable to them; that executive bodies formed and accountable to municipal councils do not enjoy the right to transfer, by themselves, the powers established to them to other subjects which are not executive bodies formed and accountable to municipal councils.

6. Seimas member P. Papovas requests the construction of the provision “As decisions adopted by municipal councils are inseparable from the execution of these decisions, then the municipal representative institutions as well as the municipal executive institutions, both of which are provided for in the Constitution, according to their competence are responsible for the implementation of the right of self-government and for the direct implementation of the laws, the decisions of the Government and the municipal council” of the Ruling (Item 21.5 of Section II of the reasoning part of the Ruling).

6.1. It is clear from the petition that it requests the construction of whether the above-mentioned provision of Item 21.5 of Section II of the reasoning part of the Ruling means that municipal councils may transfer the right to municipal executive institutions to transfer the right to found other establishments (i.e. municipal establishments), to appoint heads of these establishments, to execute supervision of their activities etc., whether municipal executive institutions (directors of administrations) may transfer their powers (part thereof) to their deputies, or other employees of the administrations.

6.2. The fact whether municipal councils may transfer the right to municipal executive institutions to transfer the right to found other establishments (i.e. municipal establishments), to appoint heads of these establishments, to execute supervision of their activities etc., whether municipal executive institutions (directors of administrations) may transfer their powers (part thereof) to their deputies, or other employees of the administrations, has been discussed in the course of the construction of the other provisions of Section II of the reasoning part of the Constitutional Court’s ruling of 24 December 2002. Seimas member P. Papovas does not request the Constitutional Court to construe the said provision of Item 21.5 of Section II of the reasoning part of the Constitutional Court’s ruling of 24 December 2002 in different aspects.

Therefore, the Constitutional Court will not construe the provision “As decisions adopted by municipal councils are inseparable from the execution of these decisions, then the municipal representative institutions as well as the municipal executive institutions, both of which are provided for in the Constitution, according to their competence are responsible for the implementation of the right of self-government and for the direct implementation of the laws, the decisions of the Government and the municipal council” of Item 21.5 of Section II of the reasoning part of the Constitutional Court’s ruling of 24 December 2002.

7. Seimas member P. Papovas requests the construction of the provision “Municipal councils, while implementing the right of self-government guaranteed by the Constitution, may also establish other municipal institutions and other municipal establishments which have authoritative empowerments” (Item 21.6 of Section II of the reasoning part of the Ruling).

7.1. It is clear from the petition that it requests the construction of whether the above-mentioned provision of Item 21.6 of Section II of the reasoning part of the Ruling means that municipal councils may transfer the right to municipal executive institutions to transfer the right to found other establishments (i.e. municipal establishments), to appoint heads of these establishments, to execute supervision of their activities etc., whether municipal executive institutions (directors of administrations) may transfer their powers (part thereof) to their deputies, or other employees of the administrations.

7.2. The fact whether municipal councils may transfer the right to municipal executive institutions to transfer the right to found other establishments (i.e. municipal establishments), to appoint heads of these establishments, to execute supervision of their activities etc., whether municipal executive institutions (directors of administrations) may transfer their powers (part thereof) to their deputies, or other employees of the administrations, has been discussed in the course of the construction of the other provisions of Section II of the reasoning part of the Constitutional Court’s ruling of 24 December 2002. Seimas member P. Papovas does not request the Constitutional Court to construe the said provision of Item 21.6 of Section II of the reasoning part of the Constitutional Court’s ruling of 24 December 2002 in different aspects.

Therefore, the Constitutional Court will not construe the provision “Municipal councils, while implementing the right of self-government guaranteed by the Constitution, may also found other municipal institutions and other municipal establishments which have authoritative empowerments” of Item 21.6 of Section II of the reasoning part of the Constitutional Court’s ruling of 24 December 2002.

Conforming to Article 61 of the Law on the Constitutional Court of the Republic of Lithuania, the Constitutional Court adopts the following

decision:

To construe that the following statements of the Constitutional Court’s Ruling “On the Compliance of Paragraph 3 of Article 3 (Wording of 12 October 2000), Paragraph 4 of Article 3 (Wording of 12 October 2000), Item 2 of Paragraph 1 of Article 5 (Wording of 12 October 2000), Paragraph 1 of Article 18 (Wording of 12 October 2000), Items 2, 3, 4, 8, and 15 of Paragraph 1 of Article 19 (Wording of 12 October 2000), Items 1, 5, 7, 9, 12, 15, 16, 17, and 18 of Paragraph 1 of Article 21 (Wording of 12 October 2000), Item 6 of the Same Paragraph (Wordings of 12 October 2000 and 25 September 2001), and Item 14 of the Same Paragraph (Wordings of 12 October 2000 and 8 November 2001) of the Republic of Lithuania’s Law on Local Self-Government, as well as the Republic of Lithuania’s Constitutional Law on the Procedure of the Application of the Law on the Alteration of Article 119 of the Constitution, and the Republic of Lithuania’s Law on the Entering of the Constitutional Law on the Procedure of the Application of the Law on the Alteration of Article 119 of the Constitution on the List of Constitutional Laws, with the Constitution of the Republic of Lithuania” of 24 December 2002:

1) the statement “the state officials who <…> enjoy the powers to control or supervise the activities of municipal councils, may not be members of municipal councils” of Item 20.4.1 of Section II of the reasoning part means, inter alia, that the state officials (servants and other persons irrespective of how they are referred to in laws) who, under the Constitution and laws, have the right to adopt decisions upon which depend the adoption and implementation of decisions of municipal councils within their competence defined by the Constitution, may not be municipal council members at the same time; this statement does not mean that the state officials enjoying the powers to conduct only organisational, technical etc. control or supervision over the executive bodies accountable to municipal councils, and over municipal establishments or enterprises cannot be municipal council members;

2) the statements “<…>the functions which exclusively belong to municipalities are regulated by law. Not a single one of these functions mean that in a respective area municipalities are absolutely independent” of Item 17.2 of Section II of the reasoning part mean, inter alia, that the procedure (procedures) of the implementation of the requirements of the laws whereby municipal functions are established, may also be established by substatutory legal acts issued by the Government, ministries (ministers) or other state institutions (their heads), in case this is provided for in laws;

3) the statement “the executive bodies accountable to municipal councils do not have the right to adopt decisions which are not grounded on <…> decisions of <…> municipal councils, also such which, by their legal force, would compete with those passed by the municipal councils” of Item 21.4 of Section II of the reasoning part means, inter alia, that only municipal councils can adopt decisions on questions categorised as belonging to the exclusive constitutional competence of municipal councils, but not the executive bodies accountable to them or other municipal institutions; under the Constitution, the legislature enjoys the powers to establish as to what decisions on questions categorised as not belonging to the exclusive constitutional competence of municipal councils are within the competence of municipal councils, and which decisions may be adopted by executive bodies accountable to municipal councils or other municipal institutions; the fact that municipal councils can transfer the right to adopt decisions to executive bodies accountable to the municipal councils must be directly indicated in the law; the said powers cannot be transferred to the municipal institutions which, under the law, are not executive bodies accountable to the municipal councils;

4) the statement “under the Constitution, it is not permitted to establish the legal regulation which would create legal preconditions for executive bodies accountable to municipal councils to interfere with the exclusive constitutional competence of municipal councils” of Item 21.4.1 of Section II of the reasoning part means that decisions concerning the issues categorised as belonging to the exclusive constitutional competence of municipal councils may be adopted only by municipal councils, but not by executive bodies accountable to them, nor any other municipal institutions;

5) the statements “the establishment, by law, of the functions and competence of the executive bodies accountable to municipal councils is left to be done by the Seimas. <…> all decisions adopted by the executive bodies accountable to municipal councils on the issues assigned to the competence of municipalities are subordinated to decisions of corresponding municipal councils” of Item 21.4.2 of Section II of the reasoning part mean, inter alia, that the legislature, while paying heed to the principles of local self-government entrenched in the Constitution, enjoys discretion to legislatively establish the interrelations, functions and powers of executive bodies accountable to municipal councils; the legislature, while paying heed to the principles of local self-government entrenched in the Constitution, enjoys discretion to legislatively establish the structure and the number of members of executive bodies accountable to municipal councils, or to leave it, by law, to be done by municipal councils; that, under the Constitution, it is not permitted to establish any such legal regulation whereby executive bodies accountable to municipal councils would impose their will on the municipal councils, or that the powers of the executive bodies would dominate over those of the municipal councils, or that or the powers of the municipal councils would be restricted by those of the executive bodies established by them and accountable to them; that the executive bodies accountable to the municipal councils cannot replace, or subordinate the municipal councils to them; that it is not permitted to establish any such legal regulation under which executive bodies accountable to municipal councils are equalled to the municipal councils that have formed them, or when municipal councils would lose an opportunity to control the executive bodies accountable to them; that executive bodies formed and accountable to municipal councils do not enjoy the right to transfer, by themselves, the powers established to them to other subjects which are not executive bodies formed and accountable to municipal councils.

Justices of the Constitutional Court:                                                  Armanas Abramavičius

Egidijus Kūris

Kęstutis Lapinskas

Zenonas Namavičius

Augustinas Normantas

Jonas Prapiestis

Vytautas Sinkevičius

Stasys Stačiokas