Lt

On refusing to interpret the Constitutional Court’s ruling of 24 December 2002

 

THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

DECISION

ON THE PETITION “ON THE CONSTRUCTION OF CERTAIN PROVISIONS OF THE RULING OF 24 DECEMBER 2002” OF SEIMAS MEMBER PETRAS PAPOVAS

 

2 July 2004

Vilnius

 

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

The court reporter—Daiva Pitrėnaitė

The Constitutional Court of the Republic of Lithuania, pursuant to Article 28 of the Law on the Constitutional Court of the Republic of Lithuania, in its procedural sitting, has considered the petition of Petras Papovas, a member of the Seimas, who used to be the representative of the Seimas, the petitioner, in case No. 49/2000, requesting the construction of certain 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 and the construction of the Constitutional Court’s Decision “On the Construction of the Constitutional Court’s Ruling of 24 December 2002” of 11 February 2004.

The Constitutional Court

has established:

1. On 24 December 2002, the Constitutional Court adopted 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” in case No. 49/2000 (Official Gazette Valstybės žinios, 2003, No. 19-828).

2. On 11 February 2004, the Constitutional Court adopted the Decision “On the Construction of the Constitutional Court’s Ruling of 24 December 2002” (Official Gazette Valstybės žinios, 2004, No. 24-740).

3. On 17 June 2004, at the Constitutional Court the petition “On the Construction of Certain Provisions of the Ruling of 24 December 2002” from Seimas member P. Papovas, who used to be the representative of the Seimas, the petitioner, in Case No. 49/2000, was received.

The member of the Seimas P. Papovas requests the Constitutional Court to construe the following:

1) whether the provisions of Paragraphs 1, 2 and 3 of Item 21.4.1 of Section II of the reasoning part of the Constitutional Court’s ruling of 24 December 2002 and the provisions of Paragraphs 2 and 3 of Item 3.4 of Section II of the reasoning part of the Constitutional Court’s decision of 11 February 2004 mean that the adoption of decisions on questions of founding municipal establishments of teaching and education (Paragraph 1 of Article 40 of the Constitution) and municipal schools of general education, vocational schools and schools of further education (Paragraph 2 of Article 41 of the Constitution), the appointment of their heads and supervision of these establishments is within the exclusive competence of municipal councils;

2) whether the provisions of Paragraphs 4, 5 and 6 of Item 3.4 of Section II of the reasoning part of the Constitutional Court’s decision of 11 February 2004 should be applied in the adoption of decisions on questions, which are established as municipal competence by the Constitution, concerning the founding of corresponding educational establishments, appointment of their heads and supervision of these establishments.

The Constitutional Court

holds that:

1. The following was held in Paragraphs 1, 2, and 3 of Item 21.4.1 of Section II of the reasoning part of the Constitutional Court’s ruling of 24 December 2002:

It has been mentioned that that the Constitution consolidates the principle of supremacy of municipal councils in regard to the executive bodies which are accountable to them. Thus, under the Constitution, it is not permitted to establish any such legal regulation whereby the decision on the issues attributed expressis verbis by the Constitution to the municipality would by adopted not by municipal councils but by the executive bodies established by and accountable to them.

It needs to be noted that the competence of municipalities is defined expressis verbis in the Constitution in Paragraph 1 of Article 40 which, inter alia, indicates municipal establishments of teaching and education; Paragraph 2 of Article 41 which, inter alia, indicates municipal schools of general education, vocational schools and schools of further education; Paragraph 2 of Article 47 which provides, inter alia, that municipalities 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; Paragraph 4 of Article 119 which 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 establish executive bodies accountable to it; Paragraph 1 of Article 121 which provides that municipalities shall draft and confirm their own budget; Paragraph 2 of Article 121 which provides that municipal councils shall have the right to establish local levies within the limits and in accordance with the procedure provided for by law, and that municipal councils may provide for preferences with respect to taxes and levies at the expense of their own budget; Article 122 which provides that municipal councils shall have the right to apply to court regarding the violation of their rights.

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.”

2. It needs to be noted that Seimas member P. Papovas, who used to be the representative of the Seimas, the petitioner, in case No. 49/2000, applied to the Constitutional Court with the petition of 6 January 2004, requesting the construction of, inter alia, the provision of Paragraph 3 of Item 21.4.1 of Section II of the reasoning part of the Constitutional Court’s ruling of 24 December 2002.

On 11 February 2004, the Constitutional Court adopted the Decision “On the Construction of the Constitutional Court’s Ruling of 24 December 2002”, in Item 3.4 whereof it was held:

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. In the petition of 17 June 2004, Seimas member P. Papovas quotes the provisions of Paragraphs 2 and 3 of Item 3.4 of the Constitutional Court’s Decision “On the Construction of the Constitutional Court’s Ruling of 24 December 2002” of 11 February 2004 concerning founding municipal establishments and enterprises, the appointment of their heads as well as the supervision of these establishments and enterprises, and requests the construction of the provisions of Paragraphs 1, 2 and 3 of Item 21.4.1 of Section II of the reasoning part of the Constitutional Court’s ruling of 24 December 2002 and Paragraphs 2 and 3 of Item 3.4 of Section II of the reasoning part of the Constitutional Court’s decision of 11 February 2004.

While construing the provisions of Item 21.4.1 of Section II of the reasoning part of the Constitutional Court’s ruling of 24 December 2002, the Constitutional Court held in Item 4.5 of Section II of the reasoning part of the Constitutional Court’s decision of 11 February 2004, inter alia, 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.”

It needs to be noted that Seimas member P. Papovas requests the construction of the provisions of Paragraphs 1, 2 and 3 of Item 21.4.1 of Section II of the reasoning part of the Constitutional Court’s ruling of 24 December 2002 from the same aspect that they were already construed in the 11 February 2004 Constitutional Court’s Decision “On the Construction of the Constitutional Court’s Ruling of 24 December 2002”. Thus, the content of the petition of 17 June 2004 of Seimas member P. Papovas requesting the construction of whether the provisions of Paragraphs 1, 2 and 3 of Item 21.4.1 of Section II of the reasoning part of the Constitutional Court’s ruling of 24 December 2002 and the provisions of Paragraphs 2 and 3 of Item 3.4 of Section II of the reasoning part of the Constitutional Court’s decision of 11 February 2004 “mean that the adoption of decisions on questions of founding municipal establishments of teaching and education (Paragraph 1 of Article 40 of the Constitution) and municipal schools of general education, vocational schools and schools of further education (Paragraph 2 of Article 41 of the Constitution), the appointment of their heads and supervision of these establishments is within the exclusive competence of municipal councils” coincides with the content of the petition of 6 January 2004 of Seimas member P. Papovas requesting to construe certain provisions of the Constitutional Court’s ruling of 24 December 2002. As mentioned before, subsequent to the petition of 6 January 2004 of Seimas member P. Papovas, the Constitutional Court’s decision of 11 February 2004 was adopted.

4. Taking account of the arguments set forth, the petition of Seimas member P. Papovas requesting the construction of whether the provisions of Paragraphs 1, 2 and 3 of Item 21.4.1 of Section II of the reasoning part of the Constitutional Court’s ruling of 24 December 2002 and the provisions of Paragraphs 2 and 3 of Item 3.4 of Section II of the reasoning part of the Constitutional Court’s decision of 11 February 2004 “mean that the adoption of decisions on questions of founding municipal establishments of teaching and education (Paragraph 1 of Article 40 of the Constitution) and municipal schools of general education, vocational schools and schools of further education (Paragraph 2 of Article 41 of the Constitution), the appointment of their heads and supervision of these establishments is within the exclusive competence of municipal councils” should not to be granted.

5. The following was held in Paragraphs 4, 5 and 6 of Item 3.4 of the Constitutional Court’s Decision “On the Construction of the Constitutional Court’s Ruling of 24 December 2002” of 11 February 2004:

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.”

The member of the Seimas P. Papovas requests the Constitutional Court to construe whether the provisions of Paragraphs 4, 5 and 6 of Item 3.4 of Section II of the reasoning part of the Constitutional Court’s decision of 11 February 2004 “should be applied in the adoption of decisions on questions, which are established as municipal competence by the Constitution, concerning founding corresponding educational establishments, the appointment of their heads and supervision of these establishments”.

Thus, Seimas member P. Papovas requests the Constitutional Court to decide an issue of the application of the provisions of the said Constitutional Court’s decision.

Under the Constitution and laws, issues of application of law are decided by the institution which applies a corresponding legal act.

Taking account of the arguments set forth, the petition of Seimas member P. Papovas requesting the construction of the provisions of Paragraphs 4, 5 and 6 of Item 3.4 of Section II of the reasoning part of the Constitutional Court’s decision of 11 February 2004 “should be applied in the adoption of decisions on questions, which are established as municipal competence by the Constitution, concerning founding corresponding educational establishments, the appointment of their heads and supervisions of these establishments” should not be granted.

Conforming to Article 102 of the Constitution of the Republic of Lithuania and Articles 1, 28 and 61 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 refuse to construe the 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 11 February 2004 subsequent to the Petition “On the Construction of Certain Provisions of the Ruling of 24 December 2002” of Seimas member Petras Papovas.

Justices of the Constitutional Court:                                                   Armanas Abramavičius

Egidijus Jarašiūnas

Egidijus Kūris

Kęstutis Lapinskas

Zenonas Namavičius

Augustinas Normantas

Jonas Prapiestis

Vytautas Sinkevičius