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On accepting a petition of the petitioner

 

THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

DECISION

ON THE PETITION OF A GROUP OF MEMBERS OF THE SEIMAS OF THE REPUBLIC OF LITHUANIA REQUESTING AN INVESTIGATION INTO THE COMPLIANCE OF PARAGRAPH 2 OF ARTICLE 15 OF THE REPUBLIC OF LITHUANIA’S LAW ON ELECTRICITY (WORDING OF 1 JULY 2004) WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA

 

15 December 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, Jonas Prapiestis, Vytautas Sinkevičius, and Stasys Stačiokas

The court reporter—Daiva Pitrėnaitė

The Constitutional Court of the Republic of Lithuania, in its sitting, has considered the petition of a group of members of the Seimas of the Republic of Lithuania requesting an investigation into whether the provision “the equipment of a customer may be connected to transmission network only in cases where the operator of the transmission network refuses, due to established technical or maintenance requirements, to connect the equipment of the customer to the distribution network which is on the territory indicated in the licence of the distribution network operator” of Paragraph 2 of Article 15 (wording of 1 July 2004) of the Republic of Lithuania’s Law on Electricity is not in conflict with the provision of Paragraph 2 of Article 5 of the Constitution of the Republic of Lithuania that the scope of power shall be limited by the Constitution, the provision of Paragraph 1 of Article 46 thereof that Lithuania’s economy shall be based on the right of private ownership and individual freedom of economic activity and initiative, the provision of Paragraph 2 of Article 46 thereof that the state shall support economic efforts and initiatives that are useful to the society, Paragraph 4 of Article 46 thereof that the law shall prohibit monopolisation of production and the market and shall protect freedom of fair competition, the provision of Paragraph 5 of Article 46 thereof that the state shall defend the interests of the consumer, and the constitutional principle of a state under the rule of law.

The Constitutional Court

has established:

1. On 1 July 2004, the Seimas adopted the Republic of Lithuania’s Law on the Amendment of the Law on Electricity (Official Gazette Valstybės žinios, 2004, No. 107-3964), by Article 1 whereof it amended the Republic of Lithuania’s Law on Electricity and set it forth in its new wording.

2. Paragraph 2 of Article 15 of the Law on Electricity (wording of 1 July 2004) provides:

The transmission system operator must ensure that conditions for the connection to the transmission network of electricity generating installations, operators of distribution networks, and customers’ equipment are in conformity with the requirements established in legal acts and are non-discriminatory. The equipment of a customer may be connected to transmission network only in cases where the operator of the transmission network refuses, due to established technical or maintenance requirements, to connect the equipment of the customer to the distribution network which is on the territory indicated in the licence of the distribution network operator.”

3. The petition of the group of members of the Seimas requesting an investigation into whether the provision “the equipment of a customer may be connected to transmission network only in cases where the operator of the transmission network refuses, due to established technical or maintenance requirements, to connect the equipment of the customer to the distribution network which is on the territory indicated in the licence of the distribution network operator” of Paragraph 2 of Article 15 (wording of 1 July 2004) of the Law on Electricity is not in conflict with the provision of Paragraph 2 of Article 5 of the Constitution that the scope of power shall be limited by the Constitution, the provision of Paragraph 1 of Article 46 thereof that Lithuania’s economy shall be based on the right of private ownership and individual freedom of economic activity and initiative, the provision of Paragraph 2 of Article 46 thereof that the state shall support economic efforts and initiatives that are useful to the society, Paragraph 4 of Article 46 thereof that the law shall prohibit monopolisation of production and the market and shall protect freedom of fair competition, the provision of Paragraph 5 of Article 46 thereof that the state shall defend the interests of the consumer, and the constitutional principle of a state under the rule of law, was received at the Constitutional Court on 3 November 2004.

On 3 November 2004, the President of the Constitutional Court issued ordinance No. 2B-141 whereby he commissioned a justice of the Constitutional Court to carry out a preliminary investigation and necessary preparatory actions as regards the said petition of the group of members of the Seimas.

On 9 November 2004, the justice of the Constitutional Court, having carried out the preliminary investigation, submitted a note to the President of the Constitutional Court, in which he held that there were no grounds established in Article 69 of the Law on the Constitutional Court to refuse to accept the petition for consideration and, pursuant to Item 1 of Paragraph 1 of Article 25 of the Law on the Constitutional Court, suggested that the petition be accepted and that one begin to prepare the case for the Constitutional Court’s hearing.

4. On 9 November 2004, after the petition had been received at the Constitutional Court and after the preliminary investigation had been carried out, a request was received from seven members of the Seimas, whereby they revoked their signatures in the petition of the group of members of the Seimas, received at the Constitutional Court on 3 November 2004, requesting an investigation into the compliance of the impugned provision of Paragraph 2 of Article 15 (wording of 1 July 2004) of the Law on Electricity with the Constitution, and whereby they requested the Constitutional Court to adopt a decision to refuse to accept the said petition of 3 November 2004 of the group of members of the Seimas.

The Constitutional Court

holds that:

1. Under Article 106 of the Constitution, not less than 1/5 of all members of the Seimas have the right to apply to the Constitutional Court. An analogous requirement is consolidated in Item 1 of Article 65 of the Law on the Constitutional Court of the Republic of Lithuania. It means that the petition must be signed by not less than 29 members of the Seimas (Constitutional Court decision of 26 August 1993). The will of the members of the Seimas to apply to the Constitutional Court must be expressed clearly and unambiguously (Constitutional Court decision of 24 April 2002). If the petition to the Constitutional Court is submitted by a group of less than 29 members of the Seimas, one is to hold that the subject of the submission of a petition established in the Constitution and the Law on the Constitutional Court is absent.

2. The petition of the group of members of the Seimas requesting an investigation into whether the provision “the equipment of a customer may be connected to transmission network only in cases where the operator of the transmission network refuses, due to established technical or maintenance requirements, to connect the equipment of the customer to the distribution network which is on the territory indicated in the licence of the distribution network operator” of Paragraph 2 of Article 15 (wording of 1 July 2004) of the Law on Electricity is not in conflict with the provision of Paragraph 2 of Article 5 of the Constitution that the scope of power shall be limited by the Constitution, the provision of Paragraph 1 of Article 46 thereof that Lithuania’s economy shall be based on the right of private ownership and individual freedom of economic activity and initiative, the provision of Paragraph 2 of Article 46 thereof that the state shall support economic efforts and initiatives that are useful to the society, Paragraph 4 of Article 46 thereof that the law shall prohibit monopolisation of production and the market and shall protect freedom of fair competition, the provision of Paragraph 5 of Article 46 thereof that the state shall defend the interests of the consumer, and the constitutional principle of a state under the rule of law, which was received at the Constitutional Court on 3 November 2004, was signed by 31 members of the Seimas, whose signatures were confirmed by the First Deputy President of the Seimas.

Thus, the said petition was signed by the subject established in the Constitution and the Law on the Constitutional Court.

There are no grounds provided for either in the Constitution, the Law on the Constitutional Court, or the Rules of the Constitutional Court, due to which it would be possible to refuse to consider the petition or return it to the petitioner.

3. It needs to be noted that at the time when the seven members of the Seimas revoked their signatures in the petition received at the Constitutional Court on 3 November 2004, which requests an investigation into the compliance of the impugned provision of Paragraph 2 of Article 15 (wording of 1 July 2004) of the Law on Electricity with the Constitution, the said petition had already been received and registered at the Constitutional Court, its preliminary investigation had been carried out and the justice who carried it out had already suggested that it be accepted and that one begin to prepare the case for the Constitutional Court’s hearing.

4. In case one granted the request of the members of the Seimas who revoked their signatures in the petition received at the Constitutional Court on 3 November 2004 (which requests an investigation into the compliance of the impugned provision of Paragraph 2 of Article 15 (wording of 1 July 2004) of the Law on Electricity with the Constitution) to adopt a decision to refuse to consider the said 3 November 2004 decision of the group of members of the Seimas, then one would virtually deny the already implemented right of the group of members of the Seimas, i.e. a subject that has the right, under the Constitution and the Law on the Constitutional Court, to apply to the Constitutional Court with the petition requesting an investigation into whether a legal act is not in conflict with the Constitution. Thus, one would deny the legitimate expectation of the other 24 members of the Seimas who signed the aforesaid petition of 3 November 2004 of the group of members of the Seimas that their already implemented right to apply, together with the other members of the Seimas, to the Constitutional Court requesting an investigation into the compliance of a legal act with the Constitution, will not be denied after their common petition is received at the Constitutional Court and the procedural actions which are indicated in the Law on the Constitutional Court and the Rules of the Constitutional Court are commenced.

Conforming to Article 106 of the Constitution of the Republic of Lithuania and Paragraph 1 of Article 28 of the Law on the Constitutional Court of the Republic of Lithuania, the Constitutional Court of the Republic of Lithuania adopts the following

decision:

To accept the petition of a group of members of the Seimas, the petitioner, requesting an investigation into whether the provision “the equipment of a customer may be connected to transmission network only in cases where the operator of the transmission network refuses, due to established technical or maintenance requirements, to connect the equipment of the customer to the distribution network which is on the territory indicated in the licence of the distribution network operator” of Paragraph 2 of Article 15 (wording of 1 July 2004) of the Republic of Lithuania’s Law on Electricity is not in conflict with the provision of Paragraph 2 of Article 5 of the Constitution of the Republic of Lithuania that the scope of power shall be limited by the Constitution, the provision of Paragraph 1 of Article 46 thereof that Lithuania’s economy shall be based on the right of private ownership and individual freedom of economic activity and initiative, the provision of Paragraph 2 of Article 46 thereof that the state shall support economic efforts and initiatives that are useful to the society, Paragraph 4 of Article 46 thereof that the law shall prohibit monopolisation of production and the market and shall protect freedom of fair competition, the provision of Paragraph 5 of Article 46 thereof that the state shall defend the interests of the consumer, and the constitutional principle of a state under the rule of law.

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

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

Justices of the Constitutional Court:                                                   Armanas Abramavičius

Egidijus Jarašiūnas

Egidijus Kūris

Kęstutis Lapinskas

Zenonas Namavičius

Jonas Prapiestis

Vytautas Sinkevičius

Stasys Stačiokas