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On accepting a petition of the petitioner

 

THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

DECISION

ON ACCEPTING THE PETITION OF A PETITIONER

 

15 December 2006

Vilnius

 

The Constitutional Court of the Republic of Lithuania, composed of the Justices of the Constitutional Court: Armanas Abramavičius, Toma Birmontienė, Egidijus Kūris, Kęstutis Lapinskas, Zenonas Namavičius, Ramutė Ruškytė, Vytautas Sinkevičius, Stasys Stačiokas, and Romualdas Kęstutis Urbaitis

The court reporter—Daiva Pitrėnaitė

The Constitutional Court of the Republic of Lithuania, in its procedural sitting, has considered the petition set forth in Article 2 and Annex 2 of the Resolution of the Seimas of the Republic of Lithuania (No. X-922) “On the Conclusions of the Seimas Provisional Investigation Commission for Investigation into the Privatisation of the Joint-stock Company ‘Alita’” of 23 November 2006 requesting an investigation into whether the Resolution of the Government of the Republic of Lithuania (No. 1698) “On the Consent to the Draft Agreement on the Sale and Purchase of the Shares of the Joint-Stock Company ‘Alita’ which Belong to the State by Right of Ownership” of 24 December 2003 is not in conflict with the principle of a state under the rule of law which is entrenched in the Constitution of the Republic of Lithuania and with Articles 3 and 16 of the Republic of Lithuania’s Law on the Privatisation of State-owned and Municipal Property.

The Constitutional Court

has established:

I

1. On 23 November 2006, the Seimas, the petitioner, adopted the Resolution (No. X-922) “On the Conclusions of the Seimas Provisional Investigation Commission for Investigation into the Privatisation of the Joint-stock Company ‘Alita’” (hereinafter also referred to as the Seimas resolution of 23 November 2006), in Article 2 and Annex 2 whereof a petition is set forth to the Constitutional Court to investigate whether the Government Resolution (No. 1698) “On the Consent to the Draft Agreement on the Sale and Purchase of the Shares of the Joint-Stock Company ‘Alita’ which Belong to the State by Right of Ownership” of 24 December 2003 (hereinafter also referred to as the government resolution of 24 December 2003) is not in conflict with the principle of a state under the rule of law which is entrenched in the Constitution and with Articles 3 and 16 of the Law on the Privatisation of State-owned and Municipal Property.

This petition of the Seimas, the petitioner, was received at the Constitutional Court on 12 December 2006.

The Constitutional Court

holds that:

I

1. The petition set forth in the Seimas resolution of 23 November 2006 requesting an investigation into whether the government resolution of 24 December 2003 is not in conflict with the principle of a state under the rule of law which is entrenched in the Constitution and with Articles 3 and 16 of the Law on the Privatisation of State-owned and Municipal Property was received at the Constitutional Court at the moment when the Constitutional Court was retired to the deliberation room to adopt the ruling in constitutional justice case No. 30/03 subsequent to the petition of a group of Members of the Seimas, the petitioner, requesting an investigation into whether:

Paragraphs 1, 3, and 4 of Article 6, Paragraph 1 of Article 15 of the Republic of Lithuania’s Law on the Lithuanian National Radio and Television to the extent that it provides that the Lithuanian National Radio and Television are funded from the receipts obtained for advertising and from commercial activity, Paragraph 2 of Article 15 of the same law to the extent that it provides that the National Radio and Television of Lithuania shall implement commercial activity independently, are not in conflict with Paragraphs 2, 3, and 4 of Article 46 of the Constitution.

Paragraph 5 of Article 5 of the Republic of Lithuania’s Law on the Lithuanian National Radio and Television to the extent that it provides that the Lithuanian National Radio and Television shall have a priority right to newly co-ordinated electronic communication channels (radio frequencies), Item 3 of Paragraph 1 of Article 10 of the same law, Paragraph 4 of Article 31 of the Republic of Lithuania’s Law on Provision of Information to the Public to the extent that it provides that channels (radio frequencies) for broadcasting programmes of the Lithuanian National Radio and Television are assigned without a tender, are not in conflict with Paragraph 1 of Article 29 and Paragraphs 2, 3, and 4 of Article 46 of the Constitution.

2. Under Paragraph 4 of Article 44 of the Law on the Constitutional Court, the Court shall not have the right to consider other cases until the consideration of the case at issue is finished or its deliberation is suspended except for adoption of procedural decisions regarding designation of consideration for other case in a Court hearing or prolonging the term for the consideration of the case.

Under Paragraph 1 of Article 26 of the Law on the Constitutional Court, in cases when the Constitutional Court receives submission by the President of the Republic to investigate whether an act of the Government is in compliance with the Constitution and the laws, or when it receives a resolution of the Seimas wherein one requests an investigation into whether a law of the Republic of Lithuania or other act adopted by the Seimas is in compliance with the Constitution, whether a decree of the President of the Republic, an act of the Government is in compliance with the Constitution and laws, the preliminary investigation of that material must be carried out within 3 days, and the issue of whether to accept the petition for consideration in the Constitutional Court must be settled during its organisational sitting.

While construing Paragraph 4 of Article 44 of the Law on the Constitutional Court together with Paragraph 1 of Article 26 of the Law on the Constitutional Court, it needs to be held that the prohibitions for the Constitutional Court on adopting other than the procedural decisions specified in Paragraph 4 of Article 44 of the Law on the Constitutional Court are not applied to the cases when a submission by the President of the Republic or a resolution of the Seimas, which is specified in Paragraph 1 of Article 26 of the Law on the Constitutional Court, is received at the Constitutional Court. Thus, in such cases, under the Law on the Constitutional Court, the Constitutional Court shall have the powers to decide in a procedural sitting of the Constitutional Court whether to accept the petition requesting for an investigation in the Constitutional Court also without postponing the constitutional justice case, the investigation of which is not over at that time.

II

1. Article 2 of the Seimas resolution of 23 November 2006 provides:

To apply to the Constitutional Court with a petition requesting an investigation into whether the Resolution of the Government of the Republic of Lithuania (No. 1698) ‘On the Consent to the Draft Agreement on the Sale and Purchase of the Shares of the Joint-Stock Company “Alita” which Belong to the State by Right of Ownership’ of 24 December 2003 is not in conflict with the principle of a state under the rule of law which is entrenched in the Constitution of the Republic of Lithuania and with the Republic of Lithuania’s Law on the Privatisation of State-owned and Municipal Property (Annex 2)”.

In Annex 2 titled “The Petition Requesting an Investigation into whether a Legal Act is in Line with the Constitution and Laws” of the Seimas resolution of 23 November 2006, the reasons are provided which ground the petition of the Seimas, the petitioner, requesting an investigation into whether the government resolution of 24 December 2003 is not in conflict with the principle of a state under the rule of law which is entrenched in the Constitution and with Articles 3 and 16 of the Law on the Privatisation of State-owned and Municipal Property.

2. At the time when the impugned government resolution of 24 December 2003 was adopted, Article 3 of the Law on the Privatisation of State-owned and Municipal Property was set forth in its wording of 4 November 1997, and Article 16 thereof—in its wording of 17 December 2001.

3. Article 3 titled “Privatisation Institutions” (wording of 4 November 1997) of the Law on the Privatisation of State-owned and Municipal Property provides:

1. Privatisation institutions shall be as follows:

(1) the State Property Fund (hereinafter referred to as the Property Fund)

(2) property funds of municipalities, or other departments of municipality administration (hereinafter referred to as municipality property funds). Municipal councils shall have the right to refrain from setting up the said municipal property privatisation institution and to authorise the mayor to conclude an agreement with the Property Fund concerning privatisation of objects which belong to the municipality by right of ownership.

2. The government resolutions on privatisation issues adopted on the basis of this Law and other laws of the Republic of Lithuania shall be binding on state and privatisation institutions.

3. The decisions of privatisation institutions on privatisation matters adopted according to their respective competence pursuant to this Law and other laws shall be binding on the enterprises controlled by the state (municipalities).”

4. Article 16 titled “Public Tender” (wording of 17 December 2001) of the Law on the Privatisation of State-owned and Municipal Property provides:

1. A public tender is the transfer of one or several privatisation objects to the successful bidder, whose written offers with regard to the price and investment (money for the acquisition of the long-term and short-term tangible assets by increasing the authorised capital of the joint-stock or closed joint-stock company), subject to the meeting of the minimum requirements for the preservation of jobs have been found to be the best. Negotiations on how to improve the bids may be entered into with the potential buyer or potential buyers who have submitted the highest bids and whose bids do not differ from each other by more than 15 per cent.

2. The method of the public tender may be applied only to such privatisation objects the privatisation terms and other obligations whereof the potential buyer has the right to implement.

3. When privatising shares of an enterprise controlled by the state (municipality) by the method of a public tender, the employees of the enterprise may, under the procedure established by the Government, be offered to acquire at par value up to 5 per cent of the shares owned by the state. This offer shall not be applicable to the enterprises under the control of the state (municipality) to which, after selling 5 per cent of the shares, the state (municipality) would transfer its control specified in Article 18 of this Law or in the case when the employees of the enterprise have already acquired the shares in the enterprise pursuant to other laws of the Republic of Lithuania.

4. Information bulletins about the shareholdings in joint-stock or closed joint-stock companies for sale by the public tender shall be prepared in the manner prescribed by the Property Fund. Requirements of the Law on Public Trading in Securities shall not be applied to those bulletins.”

5. Even though the petitioner requests the Constitutional Court to investigate whether the government resolution of 24 December 2003 is not in conflict inter alia with entire Article 3 (wording of 4 November 1997) and entire Article 16 (wording of 17 December 2001) of the Law on the Privatisation of State-owned and Municipal Property, it is obvious from the arguments of the petition that the petitioner doubted the compliance of the government resolution of 24 December 2003 with Paragraph 2 (wording of 4 November 1997) of Article 3 and the provision “negotiations on how to improve the bids may be entered into with the potential buyer or potential buyers who have submitted the highest bids and whose bids do not differ from each other by more than 15 per cent” of Paragraph 1 (wording of 4 November 1997) of Article 16 of the said law.

6. The doubts of the petitioner regarding the compliance of the government resolution of 24 December 2003 with the constitutional principle of a state under the rule of law are based on the fact that, in his opinion, this government resolution is in conflict with the provisions of the Law on the Privatisation of State-owned and Municipal Property specified by the petitioner.

7. Thus, the petition of the petitioner requesting an investigation into whether the government resolution of 24 December 2003 is not in conflict with Article 3 (wording of 4 November 1997) and Article 16 (wording of 17 December 2001) of the Law on the Privatisation of State-owned and Municipal Property is to be considered as a petition requesting an investigation into whether this government resolution is not in conflict with Paragraph 2 (wording of 4 November 1997) of Article 3 and the provision “negotiations on how to improve the bids may be entered into with the potential buyer or potential buyers who have submitted the highest bids and whose bids do not differ from each other by more than 15 per cent” of Paragraph 1 (wording of 4 November 1997) of Article 16 (wording of 17 December 2001) of the Law on the Privatisation of State-owned and Municipal Property.

8. The petition of the Seimas, the petitioner, requesting an investigation into whether the government resolution of 24 December 2003 is not in conflict with Paragraph 2 (wording of 4 November 1997) of Article 3 and the provision “negotiations on how to improve the bids may be entered into with the potential buyer or potential buyers who have submitted the highest bids and whose bids do not differ from each other by more than 15 per cent” of Paragraph 1 (wording of 4 November 1997) of Article 16 (wording of 17 December 2001) of the Law on the Privatisation of State-owned and Municipal Property is to be accepted for the consideration at the Constitutional Court.

9. It is to be noted that, under the Constitution and the Law on the Constitutional Court, while considering the constitutional justice case, the Constitutional Court has the powers, in case it is necessary, to investigate the factual circumstances that are significant for the decision of the case. The fact that by this Constitutional Court decision the petition of the Seimas, the petitioner, requesting an investigation into whether the Government Resolution (No. 1698) “On the Consent to the Draft Agreement on the Sale and Purchase of the Shares of the Joint-Stock Company ‘Alita’ which Belong to the State by Right of Ownership” of 24 December 2003 is not in conflict with the principle of a state under the rule of law and with Paragraph 2 (wording of 4 November 1997) of Article 3 and the provision “negotiations on how to improve the bids may be entered into with the potential buyer or potential buyers who have submitted the highest bids and whose bids do not differ from each other by more than 15 per cent” of Paragraph 1 (wording of 4 November 1997) of Article 16 (wording of 17 December 2001) of the Law on the Privatisation of State-owned and Municipal Property is accepted may not be interpreted in the manner that, purportedly, the Constitutional Court a priori considers all the circumstances specified in this petition as established ones, and all the arguments set forth in this petition—as grounded and/or legal ones.

Conforming to Item 2 of Paragraph 2 of Article 105 of the Constitution of the Republic of Lithuania and Articles 26, 28 and 63 of the Law on the Constitutional Court of the Republic of Lithuania,

The Constitutional Court of the Republic of Lithuania adopts the following

decision:

To accept the petition set forth in the Resolution of the Seimas of the Republic of Lithuania (No. X-922) “On the Conclusions of the Seimas Provisional Investigation Commission for Investigation into the Privatisation of the Joint-stock Company ‘Alita’” of 23 November 2006 (Official Gazette Valstybės žinios, 2006, No. 134-5065) requesting an investigation into whether the Resolution of the Government of the Republic of Lithuania (No. 1698) “On the Consent to the Draft Agreement on the Sale and Purchase of the Shares of the Joint-Stock Company ‘Alita’ which Belong to the State by Right of Ownership” of 24 December 2003 (Official Gazette Valstybės žinios, 2003, No. 123-5628) is not in conflict with the principle of a state under the rule of law and with Paragraph 2 (wording of 4 November 1997) of Article 3 and the provision “negotiations on how to improve the bids may be entered into with the potential buyer or potential buyers who have submitted the highest bids and whose bids do not differ from each other by more than 15 per cent” of Paragraph 1 (wording of 4 November 1997) of Article 16 (wording of 17 December 2001) of the Republic of Lithuania’s Law on the Privatisation of State-owned and Municipal Property.

Justices of the Constitutional Court:          Armanas Abramavičius

                                                                               Toma Birmontienė

                                                                               Egidijus Kūris

                                                                               Kęstutis Lapinskas

                                                                               Zenonas Namavičius

                                                                               Ramutė Ruškytė

                                                                               Vytautas Sinkevičius

                                                                               Stasys Stačiokas

                                                                               Romualdas Kęstutis Urbaitis