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On the application of the sanction—the deletion of the address of a place where scrap and waste metals are purchased

Case No. 19/06-20/06

THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

RULING

ON THE COMPLIANCE OF ITEM 34 OF THE LICENSING RULES FOR BUYING-UP SCRAP AND WASTE OF NON-PRECIOUS METALS MEANT FOR REALISATION (WORDING OF 31 AUGUST 2004) AS APPROVED BY THE RESOLUTION OF THE GOVERNMENT OF THE REPUBLIC OF LITHUANIA (NO. 177) “ON APPROVING THE LICENSING RULES FOR BUYING-UP SCRAP AND WASTE OF NON-PRECIOUS METALS MEANT FOR REALISATION” OF 6 FEBRUARY 2002 (WORDING OF 31 AUGUST 2004) WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA

15 March 2008
Vilnius

 

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

The court reporter—Daiva Pitrėnaitė

Lina Lukoševičiūtė, Head of Legislative and Law Application Division of the Law and Public Procurement Department of the Ministry of Economy of the Republic of Lithuania, and Birutė Janutėnienė, Deputy Head of the Internal Trade Division of the Trade Department of the Ministry of Economy, acting as the representatives of the Government of the Republic of Lithuania, the party concerned

The Constitutional Court of the Republic of Lithuania, pursuant to Articles 102 and 105 of the Constitution of the Republic of Lithuania and Article 1 of the Law on the Constitutional Court of the Republic of Lithuania, in its public hearing, on 13 March 2008, considered constitutional justice case No. 19/06-20/06 subsequent to the petitions (Nos. 1B-17/2006 and 1B-18/2006) of the Klaipėda Regional Administrative Court, the petitioner, requesting an investigation into whether Item 34 of the Licensing Rules for Buying-up Scrap and Waste of Non-Precious Metals Meant for Realisation (wording of 31 August 2004) as approved by the Resolution of the Government of the Republic of Lithuania (No. 177) “On Approving the Licensing Rules for Buying-up Scrap and Waste of Non-Precious Metals Meant for Realisation” of 6 February 2002 (wording of 31 August 2004), to the extent that, according to the petitioner, it does not provide for a possibility, after having taken account of the nature of the violation, liability mitigating and other significant circumstances, not to apply the sanction—the deletion of the address of the place where scrap and waste of non-precious metals are bought up from the licence for buying-up scrap and waste of non-precious metals meant for realisation—as well as that it does not establish the duration of such deletion, is not in conflict with Paragraph 3 of Article 46 of the Constitution of the Republic of Lithuania, and with the constitutional principles of justice and a state under the rule of law.

By the Constitutional Court’s Decision “On Joining Petitions into One Case” of 1 October 2007, petitions No. 1B-17/2006 (case No. 19/06) and No. 1B-18/2006 (case No. 20/06) of the Klaipėda Regional Administrative Court, the petitioner, were joined into one case and it was given reference No. 19/06-20/06.

The Constitutional Court

has established:

I

1. The Klaipėda Regional Administrative Court, the petitioner, considered certain administrative cases. By its ruling, the said court suspended the consideration of the cases and applied to the Constitutional Court with petitions requesting an investigation into whether Item 34 of the Licensing Rules for Buying-up Scrap and Waste of Non-Precious Metals Meant for Realisation (wording of 31 August 2004; hereinafter also referred to as the Rules) as approved by the Government Resolution (No. 177) “On Approving the Licensing Rules for Buying-up Scrap and Waste of Non-Precious Metals Meant for Realisation” of 6 February 2002 (wording of 31 August 2004; hereinafter also referred to as government resolution No. 177 of 6 February 2002), to the extent that, according to the petitioner, it does not provide for a possibility, after having taken account of the nature of the violation, liability mitigating and other significant circumstances, not to apply the sanction—the deletion of the address of the place where scrap and waste of non-precious metals are bought up (hereinafter also referred to as the address of buying-up) from the licence for buying-up scrap and waste of non-precious metals meant for realisation (hereinafter also referred to as the licence)—as well as that it does not establish the duration of such deletion, is not in conflict with Paragraph 3 of Article 46 of the Constitution, and with the constitutional principles of justice and a state under the rule of law.

II

The petitions of the Klaipėda Regional Administrative Court, the petitioner, are grounded on the following arguments.

1. Under Paragraph 2 of Article 2 of the Republic of Lithuania’s Law on Buying-up Scrap and Waste of Non-Precious Metals Meant for Realisation, scrap and waste of non-precious metals (ferrous and non-ferrous) shall be the metalwork of these metals which is not suitable to use for its purpose because of the fact that it is worn, broken or wrecked in other way, as well as waste which formed during the production or mechanical processing of non-precious metals.

2. Item 34 of the Rules (wording of 31 August 2004) provides that the executive institution of the municipality, in the territory of which the buyer-up has been founded, shall delete the address of the place of buying-up from the licence, if the buyer-up, within one year, violated the conditions of the licensed activity twice at the same place of buying-up and once while buying-up scrap and waste of non-ferrous metals. The conditions of the licensed activity are provided for in Chapter VII of the Rules; Item 23 which is set forth therein establishes an “abstract” requirement for the buyers-up “to follow the requirements of <...> laws, other legal acts and these Rules”, while Items 27-29 contain “specific” requirements for the buyers-up a failure to follow which is considered as violation of the conditions of the licensed activity.

Chapter II of the Rules for Buying-up, Record and Storing Scrap and Waste of Non-Precious Metals as approved by the Order of the Minister of Economy of the Republic of Lithuania (No. 49) “On Approving the Rules for Buying-up, Record and Storing Scrap and Waste of Non-Precious Metals” of 12 February 2002 (wording of 2 May 2005) provides for the requirements for the establishment of the place for buying-up, inter alia, the fact that at the place of buying-up there must be metrologically checked weighting tools, welfare room, lockup means (containers) with special application for collection and storing dangerous waste (when scrap including dangerous waste (accumulators, oil lubricant filters or others) is bought-up), the necessary individual work safety means and primary fire extinguishing means, the means ensuring the safety of the existing valuables and record documents, the instrument for measuring the radiation level for establishing the radiation level of the bought-up scrap and waste, other means specified in normative legal acts (Items 9–10). Such big requirements of facilities’ equipment raised for the installation of the place of buying-up are closely related to the investments of the economic subject.

3. Under Paragraph 3 of Article 46 of the Constitution, the state shall regulate economic activity so that it serves the general welfare of the Nation. While establishing the liability for the violations of law, one must heed the requirement of reasonableness, as well as the principle of proportionality, under which established legal means must be necessary in a democratic society and suitable for the legal and universally significant purposes sought; they may not restrict the rights of persons more than it is necessary in order to attain these purposes.

However, according to the Klaipėda Regional Administrative Court, the petitioner, the provision of Item 34 of the Rules (wording of 31 August 2004), entrenching the sanction for the buyer-up for the one-off violation of the conditions of the licensed activity of buying-up scrap and waste of non-ferrous metals is imperative and applicable regardless of the circumstances, extent thereof, liability mitigating and other significant circumstances of the commission of the violation of law; even though different licences are issued for buying-up scrap and waste of non-ferrous metals and buying-up scrap and waste of ferrous metals, for the violation of the conditions of the licensed activity the address of the place of buying-up is deleted from the annexes of both licences, regardless of the fact as to the conditions of which licensed activity were violated; in addition, the place of buying-up from the licence is deleted for indefinite time (because no period of time is established). The petitioner doubts whether the imperative requirement in all cases to delete the address of the place of buying-up from the licence for indefinite time even for one violation of the conditions of the licensed activity committed in the same place of buying-up during the period of one year is the necessary measure for achieving the universally important objectives; in its opinion, such sanction for the violator of law may in certain cases be obviously too big, disproportionate to the committed violation of law and, therefore, unfair, as the address of the place of buying-up, where there are the facilities created to engage in that activity which belong to the corresponding economic subject, is deleted from the licence for a small violation of law committed for the first time and, thus, the activity of the enterprise is ruined.

III

In the course of preparation of the case for the Constitutional Court’s hearing, written explanations were received from the representatives of the Government, the party concerned, who were L. Lukoševičiūtė and B. Janutėnienė, in which it is stated that the impugned legal regulation is not in conflict with the Constitution. The position of the representatives of the Government, the party concerned, is based on the following arguments.

1. Freedom of economic activity is not absolute, its implementation is related to the interests of society, thus, the state has to regulate the economic activity so that it serves the general welfare of the Nation and so that legitimate interests of various groups of society are not violated. The regulation of economic activity is usually related to the establishment of conditions of economic activity, regulation of corresponding procedures, control over economic activity, as well as certain restrictions and prohibitions on this activity.

2. By the sanction for the violations of the requirements of the licensed activity—the deletion of the address of the place of buying-up from the licence—which is established in Paragraph 5 (wording of 13 April 2004) of Article 3 of the Law on Buying-up Scrap and Waste of Non-Precious Metals Meant for Realisation and in Item 34 of the Rules (wording of 31 August 2004), one aims to ensure the control over the activity of buying-up non-precious metals and to protect society from the harm caused by thefts of non-precious metalwork.

Even though under the List of Scrap and Waste of Non-Precious Metals Whose Buy-up Is Prohibited as approved by the Order of the Minister of Economy (No. 77) “Regarding the Approval of the List of Scrap and Waste of Non-Precious Metals Whose Buy-up Is Prohibited” of 28 February 2002, it is prohibited to buy-up equipment of electricity and communications, covers of wells of heating and other routes, rails, decorative fences of graves, crosses, bells, etc. (save cases when one submits the documents confirming the property right of these things), devastation of cemeteries, thefts of aluminium wires and various cables and destruction rails continue. Therefore, the activity of economic subjects is disrupted and society experiences big material losses. Paragraph 5 (wording of 23 October 2001) of Article 3 of the Law on Buying-up Scrap and Waste of Non-Precious Metals Meant for Realisation prescribed that the address of the place of buying-up shall be deleted from the licence if the buyer-up, within one year, twice violates the requirements of this law and other legal acts, which regulate buying-up scrap and waste of non-precious metals meant for realisation. However, this provision was not effective.

3. Article 1 of the Republic of Lithuania’s Law on Amending Article 3 of the Law on Buying-up Scrap and Waste of Non-Precious Metals Meant for Realisation adopted by the Seimas on 7 November 2002 amended Paragraph 5 (wording of 23 October 2001) of Article 3 of the Law on Buying-up Scrap and Waste of Non-Precious Metals Meant for Realisation and it prescribed that the address of the place of buying-up shall be deleted from the licence by the mayor of the municipality under procedure established by the Government, inter alia, if the buyer-up violated the requirements of this law and other legal acts which regulate buying-up scrap and waste of non-precious metals meant for realisation. Under Article 2 of the Law on Amending Article 3 of the Law on Buying-up Scrap and Waste of Non-Precious Metals Meant for Realisation, the Government had to approve the amendment to the Licensing Rules for Buying-up Scrap and Waste of Non-Precious Metals Meant for Realisation until 1 February 2003.

The Government did that on 6 February 2003, by adopting the Resolution (No. 191) “On Amending the Resolution of the Government of the Republic of Lithuania (No. 177) ‘On Licensing the Buying-up of Scrap and Waste of Non-Precious Metals Meant for Realisation’ of 6 February 2002”; in addition, the liability of the buyers-up for violations of the conditions of the licensed activity was made stricter and Item 34 of the Rules (wording of 6 February 2003) prescribed that the address of the place of buying-up shall be deleted from the licence if the buyer-up, within one year, violated the conditions of the licensed activity twice at the same place of buying-up and once while buying-up scrap and waste of non-ferrous metals. The same provision is also enshrined in Item 34 of the Rules (wording of 31 August 2004). According to the representatives of the Government, the party concerned, this provision performs a preventive function, it encourages the buyers-up to follow the conditions of the licensed activity, by the said provision one aims to prevent buying-up stolen scrap and waste of non-precious metals and to ensure the protection of the person’s right to ownership which is enshrined in Article 23 of the Constitution. Under Article 28 of the Constitution, while implementing his rights and freedoms, the person must observe the Constitution and the laws of the Republic of Lithuania and must not restrict the rights and freedoms of other persons; therefore, also the buyer-up, while buying-up scrap and waste of non-precious metals, must follow the conditions of the licensed activity as they help to protect the rights and legitimate interests of other persons. The discussed sanction—the deletion of the address of the place of buying-up from the licence—is applied to all the persons who are engaged in the same activity for the same violations of the requirements of the legal acts. The fact that, according to the Klaipėda Regional Administrative Court, the petitioner, there is no provided possibility, after having taken account of the nature of the violation of law, liability mitigating and other significant circumstances, not to apply the sanction—the deletion of the address of the place of buying-up from the licence—is fair and not too strict.

4. For the violations of the conditions of the licensed activity, the following sanctions are provided for in the Rules: deletion of the address of the place of buying-up from the licence; suspension of validity of the licence; abolition of validity of the licence. It is specified in the said Rules for what violations which sanction is applied. While establishing these sanctions, one assessed such circumstances as the nature, frequency and gravity of the violation of the conditions of the licensed activity. The deletion of the address of the place of buying-up from the licence is such a sanction, which is proportionate to the gravity of the committed violation of law.

The Rules do not provide in what cases one could repeatedly enter such address of the place of buying-up on the licence, which has been deleted from the licence for the violations of the conditions of the licensed activity. However, according to the representatives of the Government, the party concerned, the Rules do not limit the opportunity of the buyer-up to request entering the new addresses of the place of buying-up on the licence; in the licences of most buyers-up, there is not a single, but several or dozens of the places of buying-up. Therefore, the deletion of the address of the place of buying-up from the licence is the sanction which meets the requirement of the Constitution that the state would regulate the economic freedom of a person so that it serves the general welfare of the Nation.

IV

At the Constitutional Court’s hearing, the representatives of the Government, the party concerned, who were L. Lukoševičiūtė and B. Janutėnienė, virtually reiterated the arguments set forth in their written explanations, as well as presented additional explanations.

The Constitutional Court

holds that:

I

1. On 6 February 2002, the Government adopted the Resolution (No. 177) “On Licensing the Buying-up of Scrap and Waste of Non-Precious Metals Meant for Realisation” which came into force on 1 March 2002. Item 1 of this resolution approved the Licensing Rules for Buying-up Scrap and Waste of Non-Precious Metals Meant for Realisation. Government resolution No. 177 of 6 February 2002 (and the Rules as approved by it) was amended by the Government Resolution (No. 191) “On Amending the Resolution of the Government of the Republic of Lithuania (No. 177) ‘On Licensing the Buying-up of Scrap and Waste of Non-Precious Metals Meant for Realisation’ of 6 February 2002” of 6 February 2003 which came into force on 13 February 2003, while Item 1 of the Government Resolution (No. 1096) “On Amending the Resolution of the Government of the Republic of Lithuania (No. 177) ‘On Licensing the Buying-up of Scrap and Waste of Non-Precious Metals Meant for Realisation’ of 6 February 2002” of 31 August 2004, which came into force on 1 December 2004, amended government resolution No. 177 of 6 February 2002 (wording of 6 February 2002 with subsequent amendments) and set it forth in its new wording; the title of government resolution No. 177 of 6 February 2002 was also amended—the said resolution was called “On Approving the Licensing Rules for Buying-up Scrap and Waste of Non-Precious Metals Meant for Realisation”.

2. The Klaipėda Regional Administrative Court, the petitioner, requests an investigation into whether Item 34 of the Rules (wording of 31 August 2004) as approved by government resolution No. 177 of 6 February 2002, to the extent that, according to the petitioner, it does not provide for a possibility, after having taken account of the nature of the violation, liability mitigating and other significant circumstances, not to apply the sanction—the deletion of the address of the place where scrap and waste of non-precious metals are bought up from the licence—as well as that it does not establish the duration of such deletion, is not in conflict with Paragraph 3 of Article 46 of the Constitution which prescribes that the state shall regulate economic activity so that it serves the general welfare of the Nation, and with the constitutional principles of justice and a state under the rule of law.

3. Item 34 of the Rules (wording of 31 August 2004) should be construed while taking account of the fact what legal regulation is enshrined in the laws, namely in the Law on Buying-up Scrap and Waste of Non-Precious Metals Meant for Realisation, as well as in the Republic of Lithuania’s Law on Waste Management and in the Republic of Lithuania’s Code of Administrative Violations of Law (hereinafter referred to as the CAVL).

4. On 23 October 2001, the Seimas adopted the Law on Buying-up Scrap and Waste of Non-Precious Metals Meant for Realisation which came into force on 1 March 2002. Article 1 of the Law on Amending Article 3 of the Law on Buying-up Scrap and Waste of Non-Precious Metals Meant for Realisation, which was adopted on 7 November 2002 by the Seimas and which came into force on 22 November 2002, amended Paragraph 5 (wording of 23 October 2001) of Article 3 of the Law on Buying-up Scrap and Waste of Non-Precious Metals Meant for Realisation and it was set forth in its new wording. Article 1 of the Law on Amending Article 3 of the Law on Buying-up Scrap and Waste of Non-Precious Metals Meant for Realisation, which was adopted by the Seimas on 13 April 2004 and which came into force on 24 April 2004, amended Paragraph 3 (wording of 23 October 2001) and Paragraph 5 (wording of 7 November 2002) of Article 3 of the Law on Buying-up Scrap and Waste of Non-Precious Metals Meant for Realisation.

Article 1 titled “Purpose of the Law” of the Law on Buying-up Scrap and Waste of Non-Precious Metals Meant for Realisation specifies that this law shall establish “the legal grounds of the economic activity which is related to buying-up scrap and waste of non-precious metals meant for realisation”. Article 2 titled “Main definitions of the Law” of the law defines that the non-precious metals shall be cast iron and steel (ferrous metals), copper, nickel, aluminium, lead, zinc, tin, tungsten, molybdenum, tantalum, magnesium, cobalt, bismuth, cadmium, titanium, zirconium, antimony, manganese, beryllium, chromium, germanium, vanadium, gallium, hafnium, indium, niobium, rhenium, thallium and their alloys (non-ferrous metals)” (Paragraph 1); scrap and waste of non-precious metals shall be “metalwork of non-precious metals which is not suitable to use for their purpose because of the fact that they are worn, broken or wrecked in other way, as well as waste which formed during the production or mechanical processing of non-precious metals” (Paragraph 2); the buyer-up shall be “an enterprise, founded under procedure established in laws, which buys-up scrap and waste of non-precious metals meant for realisation under procedure established in this Law” (Paragraph 3); the place of buying-up shall be “premises or a site specially established under the requirements established by the Government or an institution authorised by it, the address of which is specified in the licence of the buyer-up and in which scrap and waste of non-precious metals are bought-up and/or stored” (Paragraph 4).

Article 3 titled “Licensing the Activity Linked to the Buying-up of Scrap and Waste of Non-Precious Metals Meant for Realisation” (wording of 13 April 2004) of the Law on Buying-up Scrap and Waste of Non-Precious Metals Meant for Realisation establishes the following: buying-up scrap and waste of non-precious metals meant for realisation shall be a licensed activity (Paragraph 1); only the buyers-up who were granted licences under procedure established by the Government, will be able to engage themselves in the activity linked to buying-up scrap and waste of non-precious metals meant for realisation (Paragraph 2); the executive institution of the municipality in whose territory the buyer-up is established shall grant the licences, as well as shall suspend and annul their validity (Paragraph 3); when the places of buying-up are established in the territories of the municipalities other than those in which the buyer-up has been established, the address of the places of buying-up must be coordinated with the corresponding municipalities and written into the licences (Paragraph 4); the executive institution of the municipality shall delete the address of the place of buying-up from the licence under procedure established by the Government while following the request of the buyer-up or provided that the buyer-up violated the requirements of this law and other legal acts regulating the buying-up of scrap and waste of non-precious metals meant for realisation (Paragraph 5).

Article 4 titled “Requirements for the Buyer-up” of the Law on Buying-up Scrap and Waste of Non-Precious Metals Meant for Realisation prescribes that the buyer-up must, under procedure established by law, buy-up scrap and waste of non-precious metals, administer their record and store them only at the place of buying-up (Item 1 of Paragraph 1), manage the bought-up scrap and waste of non-precious metals under the Law on Waste Management and other legal acts regulating management of waste (Item 2 of Paragraph 1), provide information, under the established procedure, about the bought-up and realised scrap and waste of non-precious metals (Item 3 of Paragraph 1); it also prescribed that the list of scrap and waste of non-precious metals whose buying-up is prohibited shall be approved by the Government or an institution authorised by it (Paragraph 2).

Under Article 6 titled “Proposals for the Government” of the Law on Buying-up Scrap and Waste of Non-Precious Metals Meant for Realisation, the Government had to approve the Licensing Rules for Buying-up Scrap and Waste of Non-Precious Metals Meant for Realisation until 1 January 2002 (Paragraph 1); in addition, the Government or an institution authorised by it had to approve the procedure for buying-up, recording and storing scrap and waste of non-precious metals and to establish the requirements for equipping the places of buying-up until 1 January 2002 (Item 1 of Paragraph 2), as well as to approve the list of scrap and waste of non-precious metals whose buying-up is prohibited (Item 2 of Paragraph 2).

5. While summarising the discussed legal regulation established in the Law on Buying-up Scrap and Waste of Non-Precious Metals Meant for Realisation (wording of 23 October 2001 with subsequent amendments) in the context of the constitutional justice case at issue, it should be held that: buying-up scrap and waste of non-precious metals meant for realisation is a licensed activity, i.e. such activity, in order to engage in which the economic subject must have a corresponding permission—licence; the procedure for issuing licences is established by the Government; the executive institution of the municipality in whose territory the buyer-up is established grants the licences, as well as suspends and annuls their validity; in the licence, in addition to other things, the address of the place of buying-up is specified; the address of the place of buying-up is deleted from the licence under procedure established by the Government; it will be done by the executive institution of the municipality, inter alia, if the buyer-up violated the requirements of the said law and other legal acts regulating buying-up scrap and waste of non-precious metals meant for realisation; the said law does not the establish specific terms of this prohibition sanction, as well as those of the preventive measure—the deletion of the address of the place of buying-up, nor does it establish a final list of the grounds or legal acts in which such grounds are established; the requirements for violation of which the address of the place of buying-up is deleted from the licence are established not only in this law—they may be established also in other legal acts which regulate buying-up scrap and waste of non-precious metals meant for realisation, as well as other relations linked to waste management. It needs also to be held that the Law on Buying-up Scrap and Waste of Non-Precious Metals Meant for Realisation (wording of 23 October 2001 with subsequent amendments) does not include any provisions which would prevent the buyer-up from lodging a complaint to court against a decision of the competent institution do delete the address of buying-up from the licence; neither does it include provisions, which would not allow the court, taking account of the nature of the violation of law committed by that economic subject, liability mitigating and other significant circumstances, not to apply this prohibition sanction; in addition, the said law does not include any provisions which would prevent the buyer-up from lodging a complaint to court against the decision of a competent institution to apply any of the sanctions provided for in this law—suspension of the validity of the licence or abolition of the licence. In general, the Law on Buying-up Scrap and Waste of Non-Precious Metals Meant for Realisation (wording of 23 October 2001 with subsequent amendments), is not designed for regulating the relations linked to resolving disputes regarding a decision on application of the said prohibition sanction or other sanctions provided for in it (suspension of the validity of the licence or abolition of the licence), inter alia, to the powers of the court while considering corresponding complaints, and it does not regulate these relations: it only provides for these sanctions and establishes the subject which applies them—as mentioned before, under this law, according to the procedure established by the Government, the executive institution of the municipality has the powers to apply the sanctions established in this law.

6. It needs to be noted that the most important requirements which must be followed by the buyer-up when he implements his economic activity are defined—in general terms, however, clearly enough—in the Law on Buying-up Scrap and Waste of Non-Precious Metals Meant for Realisation (wording of 23 October 2001 with subsequent amendments). It is obvious from Item 2 of Paragraph 1 of Article 4 of the Law on Buying-up Scrap and Waste of Non-Precious Metals Meant for Realisation that more detailed requirements which must be followed by the buyer-up while he implements his economic activity are established in the Law on Waste Management (to which reference is made in that item). It should also be noted that the clause “established procedure” of Item 1 of Paragraph 1 of Article 4 of the Law on Buying-up Scrap and Waste of Non-Precious Metals Meant for Realisation and the analogous clause of Item 3 of the same paragraph, as well as the provision of Paragraph 2 of this article that the list of scrap and waste of non-precious metals, whose buying-up is prohibited, shall be approved by the Government or an institution authorised by it, mean that the law-making institutions which, under their competence, issue substatutory legal acts, are committed to detail and concretise these most important requirements. It needs to be emphasised that the legal regulation established by the Government and other institutions which issue the said substatutory legal acts may not compete with the one established in the said laws.

7. In the context of the constitutional justice case at issue, it also needs to be held that Paragraph 4 of Article 2 of the Law on Buying-up Scrap and Waste of Non-Precious Metals Meant for Realisation introduces such definition of the notion “place of buying-up” and this law enshrines such concept of the place of buying-up, whereby in the licence also such address of the place of buying-up may be specified which was previously deleted by the executive institution of the municipality from the licence held by the buyer-up, inter alia, for a corresponding committed violation of law, but which was entered on the licence again. Therefore, even though, under this law, the address of the place of buying-up is deleted from the licence held by the buyer-up without specifying the term, it is not necessarily deleted from the licence for good—if the place of buying-up meets the requirements, it may be entered on the licence again (moreover, that there is no explicit prohibition against doing that); on the other hand, one should certainly not to reject the fact that in cases where the prohibition sanction is applied for a violation of law committed by the economic subject, after one takes account of the nature of that violation of law, liability mitigating and other significant circumstances, the address of the place of buying-up must be deleted from the licence held by the buyer-up namely for good and it must not be permitted to enter it on the licence again. It is a matter of application of this law and it is not a matter of investigation in this constitutional justice case at issue.

It needs also to be noted that the Law on Buying-up Scrap and Waste of Non-Precious Metals Meant for Realisation (wording of 23 October 2001 with subsequent amendments) does not include any provisions from which one could decide in what cases and under which circumstances (as well as after how much time) it should be permitted to enter that address of the place of buying-up on the licence, which previously was deleted from the licence held by the buyer-up (inter alia, for the corresponding violation of law committed by that economic subject) by the competent institution, and in which cases and under which circumstances (as well as after what period of time)—not to be permitted. In this respect, the legal regulation established in the law is not sufficient, it includes a gap; this legal gap must be filled in. While filling in the said legal gap, the legislature must heed the norms and principles of the Constitution, inter alia, the constitutional principles of justice, reasonableness, proportionality and good faith.

It has been mentioned that the Law on Buying-up Scrap and Waste of Non-Precious Metals Meant for Realisation (wording of 23 October 2001 with subsequent amendments) does not include any provisions which would prevent the buyer-up from lodging a complaint to court against a decision of the competent institution to delete the address of the place of buying-up from the licence; neither does it include provisions, which would not allow the court, taking account of the nature of the violation of law committed by that economic subject, liability mitigating and other significant circumstances, not to apply this prohibition sanction. Thus, it should be held that this law does not prevent one from lodging a complaint to court also against decisions of the competent institution—the executive institution of the municipality—to delete the place of buying-up from the licence, while the court (namely an administrative court because the executive institution of the municipality is a subject of administration of municipalities (a subject of public administration) the judicial verification of the lawfulness of acts and actions whereof, under Item 2 of Paragraph 1 (wordings of 19 September 2000, 11 November 2004 and 7 June 2007) of Article 15 of the Republic of Lithuania’s Law on the Proceedings of Administrative Cases, is assigned to administrative courts) has the powers to decide regarding the application of this prohibition sanction. While adopting a decision in a case, the court must always follow laws (in the considered case—not only the Law on Buying-up Scrap and Waste of Non-Precious Metals Meant for Realisation, but also the Law on the Proceedings of Administrative Cases (wording of 19 September 2000 with subsequent amendments and supplements) and other laws) and law, inter alia, the principles of justice, reasonableness, proportionality and good faith which stem from the Constitution.

8. It has been mentioned that in Item 2 of Paragraph 1 of Article 4 of the Law on Buying-up Scrap and Waste of Non-Precious Metals Meant for Realisation, reference is made to the Law on Waste Management, as well as that it is obvious from the said item that more detailed requirements which must be followed by the buyer-up when he implements his economic activity are established in the Law on Waste Management.

The Law on Waste Management was adopted on 16 June 1998 and it came into force on 1 July 1998. It has been amended, and Article 1 of the Republic of Lithuania’s Law on Amending the Law on Waste Management, which was adopted by the Seimas on 1 July 2002 and which came into force on 1 January 2003, with the exception established in the law, amended and set it forth in its new wording. The Law on Waste Management (wording of 1 July 2002) has been amended and supplemented later more than once.

In Paragraph 1 of Article 1 titled “Purpose of the Law” (wording of 29 April 2004) of the Law on Waste Management, it is specified that this law shall establish “the basic requirements for the prevention, record keeping, collection, storage, transportation, utilisation and removal of waste with a view to prevent its negative effects on the environment and human health, as well as the main principles of organisation and planning principles of waste management”, while in Paragraph 3 it is specified that “the requirements for management of specific waste flow or categories thereof shall be established by means of laws and other legal acts”. The Law on Waste Management is designed for regulating the relations linked to establishment of priorities in waste management, waste management (its organisation, plans for saving natural resources and minimisation of waste, issuance of permits, waste records and procedure for the provision of reports, waste storage, safekeeping of waste management documentation, utilisation and removal of waste), peculiarities of hazardous waste management (licensing hazardous waste management, identification and declaration, mixing, packaging and labelling, procedure for transportation of waste, record keeping of transport, export and import of waste, accident prevention and liquidation), state regulation of waste management, plans of waste management, systems of communal waste management, economic and financial measures of waste management; in this law, also the rights and duties of the manufacturers, importers and distributors in the sphere of waste management are established.

The Law on Buying-up Scrap and Waste of Non-Precious Metals Meant for Realisation (wording of 23 October 2001 with subsequent amendments) does not regulate these relations in detail; the buyers-up must manage waste by following the requirements established in the Law on Waste Management (and other legal acts). The Law on Waste Management establishes not only these requirements but also the fact that the Government or the institution authorised by it have the powers to regulate certain relations (linked to management of waste of various categories, not only of metals and metal compounds) in more detail; in the said law also references are made to other laws (for instance, the Republic of Lithuania’s Law on Pollution Tax), international agreements of the Republic of Lithuania, and other legal acts.

9. Under the CAVL, the natural persons who committed the administrative violations of law linked to buying-up, recording and storing scrap and waste of non-precious metals shall be held administrative liable. For example, Article 1932 titled “Violation of the Procedure for Buying-Up, Record, Storage and Utilisation of Non-Ferrous Metals, Their Compounds, Scrap and Waste” (wording of 10 June 1993) of the CAVL prescribed that a violation of the procedure for buying-up, record, storage and utilisation of non-ferrous metals and their alloys, scrap and waste shall incur a fine of fifty thousand to five hundred thousand coupons either together with seizure of the scrap and waste of non-ferrous metals and their compounds or without it; after this article was set forth in the wording of 18 December 2007 (and after it was given the title “Buying-up Scrap and Waste of Non-precious Metals Which are Included into the List of Scrap and Waste of Non-precious Metals Which are Prohibited from Buying-up or Violations of the Procedure for Buying-up, Recording and Storing Scrap and Waste of Non-precious Metals”), it was prescribed that buying-up scrap and waste of non-precious metals which are included into the list of scrap and waste of non-precious metals which are prohibited from buying-up or violations of the procedure for buying-up, recording and storing scrap and waste of non-precious metals shall incur a fine of two thousand to five thousand litas either together with confiscation of the scrap and waste of non-precious metals and their compounds or without confiscation.

In this context, account should be taken of the legal position of the Constitutional Court in the constitutional justice case, in which, subsequent to the petition of the Higher Administrative Court, the petitioner, it investigated, inter alia, whether the provision of Paragraph 3 (wording of 2 July 1998) of Article 50 of the Republic of Lithuania’s Law on Tax Administration which entrenches the sanctions for economic subjects (both those who have the rights of a legal person and those who do not have) for the corresponding violations of law and at the same time a possibility of bringing certain employees or owners of that economic subject to criminal or administrative liability. In the Constitutional Court’s ruling of 6 December 2000, which was adopted in the said constitutional justice case, one followed the legal position whereby the said subjects are brought to legal responsibility for violations of law which, even though related, are in fact different; the impugned provision was ruled to be not in conflict with the Constitution.

In the context of the constitutional justice case at issue, it needs to be noted that natural persons who committed administrative violations of law linked to buying-up, recording and storing scrap and waste of non-precious metals and who are brought to administrative liability under the CAVL, and the economic subjects—legal persons—to which, under the Law on Buying-up Scrap and Waste of Non-Precious Metals Meant for Realisation (wording of 23 October 2001 with subsequent amendments), the sanction—the deletion of the place of buying-up from the licence—is applied, are subjects of violations of law which, even though related, are in fact different.

10. Item 34 of the Rules (wording of 31 August 2004), whose compliance (to the specified extent) is impugned by the Klaipėda Regional Administrative Court, the petitioner, provides the following: “The executive institution of the municipality in the territory of which the buyer-up has been founded, shall delete the address of the place of buying-up from the licence, if the buyer-up, within one year, violated the conditions of the licensed activity twice at the same place of buying-up and once while buying-up scrap and waste of non-ferrous metals.” This item should be construed while taking account of the provisions of other items.

The Rules (wording of 31 August 2004) stipulate that there are two types of licences: for buying-up scrap and waste of non-ferrous metals meant for realisation (Item 4.1) and for buying-up scrap and waste of ferrous metals meant for realisation (Item 4.2); a separate licence shall be issued for the activity of each type (Item 5). In the licence, inter alia, the type of the licence (Item 7.4) and the addresses of the places where scrap and waste of non-precious metals are bought up (Item 7.5) are specified. The licences shall be issued by the executive institution of the municipality in the territory of which the buyer-up has been founded (Item 8). The buyer-up who wants to enter the address of the place of buying-up on the licence or to delete it from the licence, shall submit a corresponding request (in which the following must be specified: the name of the buyer-up, the legal form, code, seat, the type of the held licence, its date of issue and number, the addresses of the entered or deleted places of buying-up, the position, name and surname of the manager of the buyer-up or the person authorised by him who filled in the request, and the date of submission of the request) to the executive institution of the municipality; the buyer-up who has terminated his activity at the place of buying-up, must apply to the executive institution of the municipality regarding the deletion of the address of this place of buying-up from the licence within 5 working days (Item 17). Together with the request to enter the addresses of the new places of buying-up, one shall, inter alia, present copies of the agreement on the grounds of which the buyer-up uses the entered new place of buying-up (when the place of buying-up is not the buyer’s-up property) and copies of the documents which prove the ownership of the place of buying-up (Item 18.1), the documents which confirm that the place of buying-up meets the requirements for the installation of the places of buying-up established by the Ministry of Economy (which should be presented when the place of buying-up is established in the territory of the municipality in which the buyer-up has been founded) (Item 18.2), the note from the municipality stating that the establishment of the place of buying-up at the specified address has been coordinated with the municipality, in the territory of which it is established (which should be presented when the places of buying-up are established in the territory of other municipalities than the one in which the buyer-up has been founded) (Item 18.3). The licence is not issued if “the validity of the licence has been abolished under the requirements established in one of these Items—38.3, 38.4 and 38.5 (the licence shall not be issued to the buyer-up for 5 years as from the day of the abolishment of its validity)” (Item 21.5).

In Chapter VII titled “Conditions of the Licensed Activity” (Items 23-32) of the Rules (wording of 31 August 2004), it is prescribed: the buyers-up must follow the requirements of laws, other legal acts, as well as of the Rules (Item 23); the buyers-up must manage the bought-up scrap and waste of non-precious metals under the Law on Waste Management and other legal acts which regulate waste management (Item 24); the buyers-up who have licences to buy-up scrap and waste of non-ferrous metals meant for realisation may buy-up scrap and waste of non-ferrous metals from enterprises, institutions and organisations of the Republic of Lithuania and from natural persons (Item 25), while those who have licences to buy-up scrap and waste of ferrous metals meant for realisation may buy up scrap and waste of ferrous metals (Item 26); the buyers-up shall be prohibited from buying-up scrap and waste of non-precious metals which are specified in the Minister-of-Economy-approved list of scrap and waste of non-precious metals, whose buying-up is prohibited, (Item 27); the buyers-up may not authorise other persons to engage in the activity specified in the licence or transfer this right to them under an agreement (Item 28); the buyers-up may buy-up and/or store scrap and waste of non-precious metals only at the places of buying-up specified in the licence (Item 29); the original licence must be kept at the seat of the buyer-up, at the address specified in the licence, and its copies—at the places of buying-up (Item 30); after a reporting quarter is over, the buyers-up must, according to the form established by the Ministry of Economy, present, within 20 calendar days, the information about the bought-up and realised scrap and waste of non-precious metals to the Ministry of Economy and the executive institution of the municipality in the territory of which the buyer-up has been founded (Item 31); after the calendar year is over, the buyers-up shall present the accounting reports of waste to the Ministry of Environment under the established procedure (Item 32).

Under Item 33 of the Rules (wording of 31 August 2004), the buyers-up shall have the right: to engage in the activity specified in the licence (Item 33.1); to require grounded written explanations, if it is rejected to grant the licence, to enter and/or to delete the address of the place of buying-up, or if the validity of the licence is suspended or abolished (Item 33.2); under procedure established by law, to lodge a complaint against the decision regarding the refusal to issue the licence, suspension or abolition of the validity of the licence, deletion of the address of the place of buying-up from the licence, or refusal to enter the address of the place of buying-up on the licence (Item 33.3).

Under Item 36 of the Rules (wording of 31 August 2004), the executive institution of the municipality shall suspend the validity of the licence if: it comes into light that false data were presented in order to get the licence (Item 36.1); the buyer-up, to whom the address of the place of buying-up is deleted from the licence, carries out the activity specified therein (Item 36.2); 2 addresses of the place of buying-up have been deleted from the licence of the buyer-up for violations of the conditions of the licensed activity within one year, or the buyer-up has, within one year, violated the requirements of Items 27 or 28 of the Rules twice (Item 36.6); the buyer-up is in tax arrears for the budget of the Republic of Lithuania, the budget of the municipality or funds, the taxes paid whereto are administered by the State Tax Inspectorate (save the cases when in the course of the payment of taxes, fines for unpaid taxes and fines for the buyer-up are postponed under procedure established in legal acts of the Republic of Lithuania, or when tax disputes regarding these taxes, fines for unpaid taxes and fines are taking place), does not fulfil its obligations for the customs, is indebted for the budget of the State Social Insurance Fund (Item 36.4); the buyer-up does not present the information about the licensed activity to the Ministry of Economy and the executive institution of the municipality in which it has been founded, or provides false information (Item 36.5).

Under Item 38 of the Rules (wording of 31 August 2004), the executive institution of the municipality shall abolish the validity of the licence, if: the buyer-up presents a request to abolish the validity of the licence (Item 38.1); the buyer-up is liquidated or reorganised when terminating its activity as an individual economic subject (Item 38.2); the buyer-up, to whom the validity of the licence is abolished, does not remove the violations of the conditions of the licensed activity within the established period of time (Item 38.3); the buyer-up, to whom the validity of the license is suspended, undertakes the activity specified in the licence (Item 38.4); for the buyer-up the validity of the licence has been suspended twice within one year (Item 38.5).

11. While summing-up the legal regulation discussed in the Rules (wording of 31 August 2004), in the context of the constitutional justice case at issue, it needs to be held that: licences are issued by the executive institution of the municipality in the territory of which the buyer-up has been founded; the addresses of places of buying-up scrap and waste of ferrous metals must be specified in the licence for buying-up scrap and waste of ferrous metals meant for realisation, while the addresses of places of buying-up scrap and waste of ferrous metals—in the licence for buying-up scrap and waste of non-ferrous metals meant for realisation; the buyer-up has the right to request (the executive institution of the municipality) entering a new address of the place of buying-up on the licence; the number of the addresses of places of buying-up entered on the licence is not limited (neither the smallest nor the largest number of the addresses of places of buying-up has been established); the buyers-up shall be obliged to follow the requirements of laws and other legal acts (inter alia, government resolutions, orders of the Minister of Economy), as well as those of the Rules; deletion of an address of the place of buying-up from the licence is linked namely with the violation of the conditions of the licensed activity: if, while buying-up scrap and waste of non-ferrous metals meant for realisation, the buyer-up, within one year, violated the conditions of the licensed activity twice at the same place of buying-up, the address of such place of buying-up is deleted from the licence for buying-up scrap and waste of ferrous metals meant for realisation without specifying the term, and, when buying-up scrap and waste of non-ferrous metals meant for realisation, the buyer-up, within one year, violated the conditions of the licensed activity at the same place of buying-up once, the address of such place of buying-up is deleted from the licence for buying-up scrap and waste of non-ferrous metals meant for realisation without specifying the term; however, the Rules (wording of 31 August 2004), inter alia, Chapter VII thereof, designed for defining the conditions of the licensed activity, do not include the duties of the buyer-up, the final list of prohibitions applied to him and the requirements upon the violation of which the address of the place of buying-up, in which the violation has been committed, would be deleted from the licence, in other words, there is not any final list of the grounds for deletion of the address of the place of buying-up from the licence; also, there is not any established term of deletion of the place of buying-up, in which the violations have been established, from the licence, or any term after which the buyer-up could apply with a request to enter that address of the place of buying-up, which has been deleted from the licence for the violations of the conditions of the licensed activity, on the licence again. It also needs to be held that all three sanctions established in the Rules, as well as the preventive measures which are applied to the buyers-up for committed violations of law—namely the deletion of the address of the place of buying-up from the licence, suspension of the validity of the licence and abolition of the validity of the licence—are provided for not only in this substatutory legal act, but also in the Law on Buying-up Scrap and Waste of Non-Precious Metals Meant for Realisation (Article 3 (wording of 13 April 2004) thereof), in addition, deletion of the address of the place of buying-up from the licence is the mildest sanction, while abolition of the validity of the licence—the strictest sanction; the Rules enshrine final lists of the grounds for suspension and abolition of the validity of the licence; the buyer-up has the right to lodge a complaint against the application of all these sanctions under procedure established by law.

12. It has been held that the most important requirements which must be followed by the buyer-up when he carries out his economic activity are defined—in general terms, however, clearly enough—in the Law on Buying-up Scrap and Waste of Non-Precious Metals Meant for Realisation (wording of 23 October 2001 with subsequent amendments), as well as that these requirements are established in more detail in the Law on Waste Management. It has also been held that the Government or an institution authorised by it has the powers to regulate some of these relations in more detail; the legal regulation established by the Government and other institutions which pass substatutory legal acts may not compete with the legal regulation established in the said laws. It has also been held that the Law on Buying-up Scrap and Waste of Non-Precious Metals Meant for Realisation (wording of 23 October 2001 with subsequent amendments) does not establish any specific terms of this prohibition sanction, as well as those of the preventive measure—the deletion of the address of the place of buying-up—nor does it establish a final list of the grounds or that of legal acts in which such grounds are established; the requirements for violation of which the address of the place of buying-up is deleted from the licence are established not only in this law—they may also be established in other legal acts which regulate buying-up scrap and waste of non-precious metals meant for realisation, as well as other relations linked to waste management.

It needs to be noted that the Klaipėda Regional Administrative Court, the petitioner, does not impugn the provisions of the Rules (wording of 31 August 2004) which consolidate the corresponding requirements; these provisions are not a matter of investigation in this constitutional justice case.

13. In the context of the constitutional justice case at issue, it also needs to be noted that in the Rules (wording of 31 August 2004), the notion “new address of the place of buying-up” is not defined in more detail.

In this context, it needs to be noted that, as mentioned before, even though, under the Law on Buying-up Scrap and Waste of Non-Precious Metals Meant for Realisation (wording of 23 October 2001 with subsequent amendments), the address of the place of buying-up is deleted from the licence held by the buyer-up without specifying the term, it is not necessarily deleted from the licence for good—if the place of buying-up meets the requirements, it may be entered on the licence again; on the other hand, this law does not include the provisions from which one could decide, under what circumstances (as well as in after what time) it is permitted to enter this address of the place of buying-up on the licence which was deleted from the licence held by the buyer-up by a competent institution earlier (inter alia, for the corresponding violation of law committed by that economic subject) and in what cases and under what circumstances it is not permitted to do so.

In an analogous manner, one should also construe the fact that Item 34 of the Rules (wording of 31 August 2004) whose compliance with the Constitution is impugned in this constitutional justice case, does not require to specify any term for deletion of the address of the place of buying-up from the licence held by the buyer-up, either.

Therefore, it needs to be held that the concept of a new address of the place of buying-up, when being construed and assessed in the context of the content of the place of buying-up enshrined in the Law on the Buying-up of Scrap and Waste of Non-Precious Metals, gives no legal ground for stating that the notion “new address of the place of buying-up”, which is used in the Rules, does not include such address of the place of buying-up that was deleted from the licence held by the buyer-up for committed violations of law, but which was later entered on it again (specifically, when there is no corresponding explicit prohibition against that).

It has been held in this ruling of the Constitutional Court that the Law on Buying-up Scrap and Waste of Non-Precious Metals Meant for Realisation (wording of 23 October 2001 with subsequent amendments) does not include any provisions which would prevent the buyer-up from lodging a complaint to court against a decision of the competent institution to delete the address of the place of buying-up from the licence; neither does it include provisions, which would not allow the court, taking account of the nature of the violation of law committed by that economic subject, liability mitigating and other significant circumstances, not to apply this prohibition sanction. It has also been held that the said law does not prevent from lodging a complaint to court also against decisions of the executive institution of the municipality to delete the address of the place of buying-up from the licence, while the court which considers the case (while following laws, thus, not only the Law on Buying-up Scrap and Waste of Non-Precious Metals Meant for Realisation, but also the Law on the Proceedings of Administrative Cases (wording of 19 September 2000 with subsequent amendments and supplements) and other laws, as well as law, inter alia, the constitutional principles of justice, reasonableness, proportionality and fairness) has the powers to decide regarding application of this sanction; in addition, Item 33.3 of the Rules expressis verbis enshrines the right of the buyer-up to lodge a complaint, under procedure established by law, against a decision of the competent institution—executive institution of the municipality—regarding the deletion of the address of the place of buying-up from the licence. Therefore, it needs to be held that the legal regulation established in the Rules does not prevent, under procedure established by law, from lodging complaints against such decisions to court—an administrative court.

14. While deciding subsequent to the petitions of the Klaipėda Regional Administrative Court, the petitioner, whether Item 34 of the Rules (wording of 31 August 2004), to the extent that, according to the petitioner, it does not provide for a possibility, after having taken account of the nature of the violation, liability mitigating and other significant circumstances, not to apply the sanction—the deletion of the address of the place where scrap and waste of non-precious metals are bought up from the licence for buying-up scrap and waste of non-precious metals meant for realisation—as well as that it does not establish the duration of such deletion, is not in conflict with Paragraph 3 of Article 46 of the Constitution, and with the constitutional principles of justice and a state under the rule of law, it needs to be noted that, as the Constitutional Court has held in its ruling of 13 May 2005 (as well as other acts), not only the right but also the obligation of the state to regulate economic activity by means of legal acts so that it serves the general welfare of the Nation is consolidated in the provision “the State shall regulate economic activity so that it serves the general welfare of the Nation” of Paragraph 3 of Article 46 of the Constitution; by means of regulation of economic activity the state must seek the welfare of not individual persons but precisely the general welfare of the Nation; freedom of economic activity of a person is not absolute, it may be limited when it is necessary to defend the values that are enshrined in the Constitution; the prohibition on freedom of economic activity of a person which is established in the law must in all cases be clear, designed for the protection of the values (fair competition, interests of the consumers, etc.) which are consolidated in the Constitution. In the Constitutional Court’s ruling of 31 May 2006, it was held that freedom and initiative of economic activity of a person imply, among other things, freedom of fair competition.

The Constitutional Court has also held that in a state under the rule of law, the legislature has not only the right, but also the duty to limit or even prohibit, by means of laws, the deeds which essentially harm the interests of persons, society or the state, or due to which there is a threat that such harm will occur (the Constitutional Court’s rulings of 8 May 2000, 10 June 2003, 29 December 2004, 10 November 2005, and 21 January 2008); while establishing in laws the kind of deeds which are contrary to law, as well as establishing legal liability for the deeds that are contrary to law, the legislature enjoys broad discretion which also includes the discretion to establish the circumstances that would determine the sanctions to be applied for violations of law (the Constitutional Court’s ruling of 10 November 2005); in the Constitution, one has consolidated the concept of a democratic state under the rule of law where the state not only seeks to protect and defend the person and society from crimes and other dangerous violations of law, but also is able to do it efficiently (the Constitutional Court’s rulings of 29 December 2004, 16 October 2006, and 21 January 2008). In a state under the rule of law the general principle of law cannot be disregarded whereby one may not enjoy any profit from a violation of law committed by him (the Constitutional Court’s ruling of 14 March 2006).

On the other hand, in the Constitutional Court’s acts it has also been held more than once that, under the Constitution, it is permitted to limit the rights and freedoms of individuals if the following conditions are observed: this is done by law; these restrictions are necessary in the democratic society in order to protect the rights and freedoms of other persons as well as the values enshrined in the Constitution together with the constitutionally important objectives; the restrictions do not deny the nature and essence of the rights and freedoms; the constitutional principle of proportionality is followed.

In the Constitutional Court’s ruling of 31 May 2006 it was held that, even though certain relations of economic activity may only be regulated by law, whereas other relations of economic activity may be regulated by means of government resolutions, and some of them—by means of substatutory legal acts of lower legal force; under the Constitution, the essential conditions for economic activity and prohibitions as well as limitations having essential impact on the said activity and various sanctions for certain violations of law may only be established by means of a law; thus, it is only by means of a law that it is permitted to establish measures of economic influence, which may have an essential impact on the economic activity, and which may be applied when the established obligations are not carried out or are carried out improperly. This should also be applied to the so-called economic sanctions assigned to the institute of administrative liability, which create preconditions for making a negative impact on the economic situation of the subjects of economy which are brought to legal liability (the Constitutional Court’s rulings of 3 November 2005 and 21 January 2008).

15. In the context of the constitutional justice case at issue, it should be emphasised that, as mentioned before, buying-up scrap and waste of non-precious metals meant for realisation is a licensed activity; the licence is issued if an economic subject meets certain necessary requirements. There are not and there may be not any legal arguments which would allow stating that, purportedly, the licensing of buying-up scrap and waste of non-precious metals meant for realisation and the establishment of the requirements for the persons engaged in this economic activity are constitutionally groundless (inter alia, and, in particular, taking account of the fact that one may try to sell to the buyers-up also such scrap and waste of non-precious metals meant for realisation, which were acquired upon seizing somebody else’s property, i.e. upon commission of a criminal deed). Compliance with the conditions of this licensed activity and its observation are a necessary precondition for defence of the values which are enshrined in the Constitution, inter alia, the ownership rights, human health, public order, the system of the economy of the state, the financial order, as well as fair competition.

16. It needs to be noted that the legislature has the powers to establish not only the necessary requirements which must be followed by the economic subjects who seek to get the licenses for engagement into buying-up scrap and waste of non-precious metals meant for realisation, but also the requirements which must be followed by the persons who have been granted such licences, as well as the coercive measures (sanctions) which must be applied for violations of such requirements. The presumption should be drawn that all economic subjects, who engage themselves into licensed activity under the held licences, are aware of and understand the conditions which are enshrined in the legal acts and which they must follow, as well as that they also know that upon violation of some of these conditions, the sanctions as well as the coercive measures established by law will be applied to them. Freedom of an economic subject that violated the rules of fair competition consolidated in the licence not only may, but also usually must be limited (also by applying prohibition sanctions).

17. In this context, it needs to be noted that, as it was held in the Constitutional Court’s ruling of 21 January 2008 (adopted in the constitutional justice case, in which, inter alia, subsequent to the petitions of the Supreme Administrative Court of Lithuania and the Vilnius Regional Administrative Court, the petitioners, the Constitutional Court investigated whether the provisions of the Republic of Lithuania’s Law on Alcohol Control, as well as the legal regulation established by the Government which did not permit not abolishing the validity of the licence, were not in conflict with the Constitution), certain laws (and the substatutory legal acts which were issued on the basis of these laws) establish the so-called preventive measures (they are often called this way explicitly) which are not fully comparable to punishments or administrative penalties; the essence of preventive measures is the application of certain limitations to the person in order that this person would not commit the deeds which are contrary to law, to commit which he is inclined and which he committed until a corresponding preventive measure was imposed upon him, and in order that the public interest and the rights of other persons would be protected; the preventive measures (which may be more or less different from the “usual” punishments or administrative penalties) are prohibition sanctions; regardless of the particularity of preventive measures, there is no ground not to consider them as sanctions in general, because preventive measures, as well as “usual” punishments and administrative penalties, make negative impact on the implementation of the corresponding rights of persons, they must always be imposed by a decision of a competent institution when reacting to such behaviour of the person which is not tolerated by law—they are always a response of the public power to the deeds which violate the public interest, which are prohibited by law and which have been committed by that person, and they are applied according to the sanction of the corresponding legal norm; in addition, the same requirements of justice, proportionality, expedience and lawfulness (including the procedural one) are applied to preventive measures as to “usual” punishments or administrative penalties; the compliance of preventive measures (applied not only to natural but also to the legal persons) which are established in various laws with the Constitution has been a matter of investigation in constitutional justice cases considered by the Constitutional Court; in addition, the jurisprudence of the Constitutional Court also notes the preventive importance of “usual” punishments and administrative penalties.

18. The prohibition sanction which is established in the Rules (wording of 31 August 2004), as well as the preventive measure—the deletion of the address of the place of buying-up from the licence—are applied for violations of the Law on Buying-up Scrap and Waste of Non-Precious Metals Meant for Realisation, of the said Rules, as well as of other legal acts (inter alia, government resolutions, orders of the Minister of Economy), which regulate buying-up scrap and waste of non-precious metals meant for realisation. It has been mentioned that deletion of the address of the place of buying-up from the licence (as well as other sanctions established in the Rules which are applied to buyers-up for committed violations of law) is provided for in Article 3 (wording of 13 April 2004) of the Law on Buying-up Scrap and Waste of Non-Precious Metals Meant for Realisation; the grounds for its application are enshrined, inter alia, in Article 4 (wording of 13 April 2004) of this law.

19. Deletion of the place of buying-up from the licence is such a sanction, as well as a preventive measure, whereby a negative impact for the financial, economic situation of the violator of law—an economic subject—is made by not permitting him to engage in the corresponding licensed activity in a certain place; by this prohibition sanction, one seeks not only and not as much to punish the violator of law—an economic subject—but, first of all, to prevent the licence-holding economic subject from carrying out the corresponding activity at a certain place whose address is written in the licence, and to prevent the one who violated the imperative requirements of law—the conditions of the licensed activity—from engaging in the corresponding activity in that place in order that no harm would be made to the values which are protected and defended by law; it is considered that if such an economic subject were permitted to continue with the activity specified in the licence in the place where the violation was committed, there would be a threat that one would harm the public interest and various values which are enshrined in and protected and defended by the Constitution. However, it needs to be emphasised that upon application of the said prohibition sanction to the economic subject, it is not removed from the corresponding market in general, because after the deletion of the address of the place of buying-up from the licence, the validity of that licence is neither suspended (save the cases when two addresses of the places of buying-up would be deleted from the licence of the economic subject for violations of law within one year), nor abolished.

20. The consolidation of strict (for the violators of law) sanctions for violations of law in itself (without an assessment of the character, danger (gravity), extent, other features and other circumstances) cannot be construed as unfair or inadequate for that violation of law (the Constitutional Court’s rulings of 3 November 2005 and 21 January 2008). This provision of the official constitutional doctrine should also be applied to the prohibition sanctions (the Constitutional Court’s ruling of 21 January 2008).

It needs to be held that the prohibition sanction—the deletion of the address of the place of buying-up from the licence—established in Article 3 (wording of 13 April 2004) of the Law on Buying-up Scrap and Waste of Non-Precious Metals Meant for Realisation and in Item 34 of the Rules (wording of 31 August 2004) in itself cannot raise doubts regarding the compliance with the constitutional principles of justice and proportionality, and other requirements of a state under the rule of law. After all, if the economic subject that violated the essential conditions (which were known and comprehensible to the said subject) of being in that market would not be applied the corresponding prohibition sanction, one could reasonably state that the corresponding violations of law are tolerated, fair competition is not protected and defended and that the rights and legitimate interests of other persons are not protected. This prohibition sanction, as such, should not be regarded as too strict, inadequate or disproportionate to the committed violation of law—violation of the conditions of the licensed activity—therefore, in itself, it is not unfair.

21. The Constitution shall be an integral act (Paragraph 1 of Article 6 of the Constitution). In the acts of the Constitutional Court it has been held more than once that: all the constitutional provisions are interrelated so that the content of some provisions of the Constitution determine the content of its other provisions; all provisions of the Constitution constitute a harmonious system; there is a balance among the values entrenched in the Constitution; it is not permitted to oppose any provision of the Constitution against other provisions of the Constitution, nor to construe them so that the content of any other constitutional provision might be distorted or denied, since then the essence of the entire constitutional regulation would be distorted and the balance of the constitutional values would be disturbed.

In the context of the constitutional justice case at issue, in which it is impugned whether Item 34 of the Rules (wording of 31 August 2004), to the extent that it, according to the Klaipėda Regional Administrative Court, the petitioner, does not provide for a possibility, after having taken account of the nature of the violation, liability mitigating and other significant circumstances, not to apply the sanction—the deletion of the address of the place of buying-up from the licence—as well as that, according to the petitioner, it does not establish the duration of such deletion, is not in conflict with Paragraph 3 of Article 46 of the Constitution, and with the constitutional principles of justice and a state under the rule of law, one needs to take account not only of these provisions of the Constitution specified by the Klaipėda Regional Administrative Court, the petitioner, but also of the provision of Paragraph 1 of Article 30 of the Constitution that the person whose constitutional rights or freedoms are violated shall have the right to apply to court, as well as of Article 109 of the Constitution in which it is prescribed that, in the Republic of Lithuania, justice shall be administered only by courts (Paragraph 1); that while administering justice, the judge and courts shall be independent (Paragraph 2); when considering cases, judges shall obey only the law (Paragraph 3); and that the court shall adopt decisions in the name of the Republic of Lithuania (Paragraph 4).

While construing Article 109 of the Constitution, the Constitutional Court has held in its acts (inter alia, its rulings of 21 December 1999, 9 May 2006, 6 June 2006, 27 November 2006, 24 October 2007, and 21 January 2008) more than once that courts, when they administer justice, must ensure the implementation of law expressed in the Constitution, laws and other legal acts, to guarantee the supremacy of law, to protect human rights and freedoms. A duty to courts stems from Paragraph 1 of Article 109 of the Constitution to consider cases justly and objectively and to adopt reasoned and reasonable decisions (the Constitutional Court’s rulings of 15 May 2007 and 24 October 2007). The principle of justice entrenched in the Constitution as well as the provision that justice is administered solely by courts mean that the constitutional value is not the adoption of a decision in court, but rather the adoption of a just court decision; the constitutional concept of justice implies not only a formal and nominal justice administered by the court, not only an outward appearance of justice administered by the court, but, most importantly, such court decisions (other court final acts), which by their content are not unjust; the justice administered only formally by the court is not the justice which is consolidated in and protected and defended by the Constitution (the Constitutional Court’s rulings of 21 September 2006, 24 October 2007, 21 January 2008, and 20 February 2008).

The jurisprudence of the Constitutional Court more than once stated the imperative arising from the constitutional principle of a state under the rule of law and other provisions of the Constitution whereby the person who believes that his rights and freedoms have been violated has an absolute right to an independent and impartial trial, an arbiter, which would settle the dispute; and whereby the constitutional right of the person to apply to court both regarding the rights which are directly consolidated in the Constitution and regarding the acquired rights may not be artificially restricted or its exercising may not be unreasonably aggravated. In the Constitutional Court’s decisions of 8 August 2006 and 21 January 2008, it was held that if the constitutional right of the person to apply to court were not ensured, the generally recognised legal principle ubi ius, ibi remedium—if there is a certain right (freedom), there must be a measure for its protection—would be disregarded, as well as that such legal situation where a certain right or freedom of the person cannot be defended, also by means of the judicial procedure, although the person himself thinks that this right or freedom has been violated, is, under the Constitution, impossible, nor does the Constitution tolerate this.

22. The constitutional principles of justice and a state under the rule of law also imply that the measures established by the state for violations of law must be proportionate (adequate) to the violation of law and must comply with the lawful and universally significant objectives sought and do not have to restrain a person obviously more than it is necessary in order to reach these objectives; there must be a fair balance (proportionality) between the objective sought to punish the violators of law and to ensure the prevention of the violations of law and the measures chosen for reaching this objective; the constitutional principle of justice requires to differentiate the established penalties so that while applying them, one could take account of the nature of the violation of law, of the circumstances mitigating the liability and other circumstances (the Constitutional Court’s rulings of 6 December 2000, 2 October 2001, 26 January 2004, 3 November 2005, 10 November 2005, and 21 January 2008).

23. While assessing Item 34 (to the extent that, according to the Klaipėda Regional Administrative Court, the petitioner, it does not provide for a possibility, after having taken account of the nature of the violation, liability mitigating and other significant circumstances, not to apply the sanction—the deletion of the address of the place of buying-up from the licence—as well as that, according to the petitioner, it does not establish the duration of such deletion) of the Rules (wording of 31 August 2004) in the aspect of its relation with the provisions (which are closely linked to the principles of justice and a state under the rule of law specified by the Klaipėda Regional Administrative Court, the petitioner) of Paragraph 1 of Article 30 and Article 109 of the Constitution, it needs to be noted that, as mentioned before, under Item 33.3 of the Rules (wording of 31 August 2004), the buyers-up shall have the right, under procedure established by law, to lodge a complaint against the decision regarding the refusal to grant the licence, suspension or abolition of the validity of the licence, deletion of the address of the place of buying-up from the licence, or refusal to enter the address of the place of buying-up on the licence.

24. In this aspect, the clause “under procedure established by law” of Item 33.3 of the Rules (wording of 31 August 2004) is of particular importance.

It has been held in this ruling of the Constitutional Court that one may lodge a complaint against the decisions of the executive institution of the municipality to delete the address of the place of buying-up from the licence, while the court shall have the powers to decide regarding application of this sanction. It has also been held that the Law on Buying-up Scrap and Waste of Non-Precious Metals Meant for Realisation (wording of 23 October 2001 with subsequent amendments) does not regulate the relations linked to resolving disputes regarding the application of the said prohibition sanction, inter alia, those linked to the powers of the court while considering corresponding complaints.

In this context, it needs to be noted that Paragraph 5 (wording of 8 April 2003) of Article 4 of the Law on the Proceedings of Administrative Cases provides that “if there is a conflict between the norms of this law and other laws (save special laws), the court must follow the norms of the Law on the Proceedings of Administrative Cases”.

If the relations linked to the application of the prohibition sanction—the deletion of the place of buying-up from the licence—inter alia, those linked to the powers of a court while considering corresponding complaints were regulated in the Law on Buying-up Scrap and Waste of Non-Precious Metals Meant for Realisation, this law, with regard to the Law on the Proceedings of Administrative Cases (wording of 19 September 2000 with subsequent amendments and supplements) would be considered as lex specialis. The essence of the principle lex specialis derogat legi generali is that when there is a competition between general and special norms, the special norm shall be applied (the Constitutional Court’s ruling of 21 January 2008). However, as mentioned before, because of the fact that the Law on Buying-up Scrap and Waste of Non-Precious Metals Meant for Realisation does not regulate these relations, it cannot be considered as the “special law” specified in Paragraph 5 (wording of 8 April 2003) of Article 4 of the Law on the Proceedings of Administrative Cases; while considering corresponding complaints, one must follow the Law on the Proceedings of Administrative Cases (wording of 19 September 2000 with subsequent amendments and supplements). Thus, it is necessary to elucidate whether under the Law on the Proceedings of Administrative Cases (wording of 19 September 2000 with subsequent amendments and supplements), a court, which considers a complaint of an economic subject regarding the decision of the competent institution—the executive institution of the municipality—to delete the address of the place of buying-up held by the buyer-up from the licence for a violation of law committed by that economic subject, may, after having taken account of the nature of the violation, liability mitigating and other significant circumstances, decide not to apply the sanction.

Under Item 2 of Paragraph 1 (wordings of 19 September 2000, 11 November 2004 and 7 June 2007) of Article 15 of the Law on the Proceedings of Administrative Cases, administrative courts shall decide cases related to “lawfulness of acts passed and actions performed by the subjects of municipal administration, also the lawfulness and validity of refusal by the said subjects to perform the actions within the remit of their competence or delay in performing the said actions”; the subjects of municipal administration means “subjects of public administration acting as municipal institutions or establishments, their officials or state servants” (Paragraph 9 of Article 2 (wording of 7 June 2007) of the Law on the Proceedings of Administrative Cases). Under Items 1, 2, 3 and 4 (wordings of 19 September 2000 and 7 June 2007) of Article 88 of this Law, upon considering the case, the administrative court shall adopt one of these decisions: (1) to reject the complaint (petition) as groundless; (2) to satisfy the complaint (petition) and to revoke the contested act (or paragraph thereof) or to oblige the corresponding subject of administration to remove the committed violation or to implement a different order of the court; (3) to satisfy the complaint (petition) and to oblige a subject of municipal administration to accordingly implement the law, a government resolution or another legal act; (4) to satisfy the complaint and to settle the dispute in any other manner provided for by law. Paragraph 1 of Article 89 (wording of 19 September 2000) of the Law on the Proceedings of Administrative Cases provides that a contested act (or a part thereof) has to be abolished if it is (1) illegal in essence, i.e. conflicting by its content with legal acts of higher legal force; (2) illegal by reason of being adopted by a subject of administration which is not competent; (3) illegal as it was adopted in violation of the basic procedures, especially the rules which had to ensure an objective evaluation of all circumstances and validity of the decision; Paragraph 2 of this article prescribes that “the contested act (or a part thereof) may also be abolished on other grounds deemed important by the administrative court”.

Paragraph 1 of Article 89 (wording of 19 September 2000) of the Law on the Proceedings of Administrative Cases introduces a list of cases when the court, while considering the complaint, must abolish the contested act or a part thereof, however, this list, if account is taken of Paragraph 2 of this article, should not be regarded as final, as the court may abolish the contested act (or a part thereof) on other grounds than those established in Paragraph 1 of Article 89 (wording of 19 September 2000) of the Law on the Proceedings of Administrative Cases, if it deemed them important; neither in the said article, nor in any other place of this law the list of such grounds is introduced; it is reserved for the court’s discretion. In this context, it needs to be emphasised that Paragraph 2 of Article 89 (wording of 19 September 2000) of the Law on the Proceedings of Administrative Cases should be construed by taking account of the fact that, as mentioned before, the justice administered only formally by the court is not the justice which is consolidated in and protected and defended by the Constitution; that, when adopting a decision in a case, the court must always follow the laws and law, inter alia, the principles of justice, reasonableness, proportionality and fairness which stem from the Constitution. Therefore, when adopting the decision in the case subsequent to the complaint of an economic subject, the buyer-up, regarding the decision of the executive institution of the municipality to apply the prohibition sanction—to delete the address of the place of buying-up from the licence held by him for the corresponding violation of law committed by that economic subject—to that economic subject, the court must not only establish whether that violation of law for which this prohibition sanction is established was really committed and whether it was committed by that economic subject, but also assess the nature of that violation of law and all the significant circumstances, as well as liability mitigating circumstances.

If Paragraph 2 of Article 89 (wording of 19 September 2000) of the Law on the Proceedings of Administrative Cases were construed that, purportedly, it does not permit the court, upon the assessment of all these circumstances, to decide that the prohibition sanction—the deletion of the address of the place of buying-up from the licence—does not have to be applied to the economic subject, as it is obviously too big, disproportionate (inadequate) to the committed violation of law and, therefore, unfair, one would have to recognise that this paragraph (to the corresponding extent) is in conflict with Paragraph 1 of Article 109 of the Constitution, with the constitutional principles of justice and a state under the rule of law. However, this paragraph is not construed like this; on the contrary, it needs to be held that, under the Law on the Proceedings of Administrative Cases (wording of 19 September 2000 with subsequent amendments and supplements), the court which considers the complaint of the buyer-up regarding the decision of the executive institution of the municipality to delete the address of the place of buying-up from the licence held by that economic subject for the corresponding violation of law has the powers, after having taken account of the nature of the violation, liability mitigating and other significant circumstances, to decide that the sanction—the deletion of the address of the place of buying-up from the licence—is for that economic subject obviously too big, disproportionate (inadequate) for the committed violation of law, therefore, unfair, thus, should not be applied to that violator of law for the said violation of law. While construing the legal regulation established in the Law on the Proceedings of Administrative Cases (wording of 19 September 2000 with subsequent amendments and supplements) in this way, there is no legal ground to state that it creates preconditions for infringement of the rights of the economic subject to whom the executive institution of the municipality applied the said prohibition sanction and in this aspect deviates from the imperatives of justice and a state under the rule of law which are enshrined in the Constitution and that it violates Paragraph 3 of Article 46 of the Constitution, or any other provisions of Article 109 of the Constitution.

Alongside, it needs to be held that the legal regulation (to the extent that it is impugned by the Klaipėda Regional Administrative Court, the petitioner) established in Item 34 of the Rules (wording of 31 August 2004) also does not prevent the court from deciding, having assessed all these circumstances, that the prohibition sanction—the deletion of the address of the place of buying-up from the licence—applied to the economic subject is obviously too big, disproportionate (inadequate) for the committed violation of law, therefore, unfair, and, thus, should not be applied to that economic subject for the said violation of law.

25. In this aspect, the discussed legal situation is not analogous to the legal situation considered in the constitutional justice cases in which the Constitutional Court’s rulings of 3 November 2005 and 21 January 2008 were adopted. In these constitutional justice cases, it the Constitutional Court investigated whether, inter alia, the legal regulation established accordingly in the Republic of Lithuania’s Law on Tobacco Control and the Law on Alcohol Control which, with regard to the Law on the Proceedings of Administrative Cases (wording of 19 September 2000 with subsequent amendments and supplements) had to be considered as lex specialis, was not in conflict with the Constitution and, therefore, it was not possible to state that the court, following the Law on the Proceedings of Administrative Cases (wording of 19 September 2000 with subsequent amendments and supplements), had the powers to decide, after having taken account of the nature of the violation, liability mitigating and other significant circumstances, that the corresponding “economic sanction” should not be applied to the violator of law who applied to court; in addition, the Law on Alcohol Control limited (to a certain extent) the right of the corresponding subject to apply to court in general.

26. The fact that under the Law on the Proceedings of Administrative Cases (wording of 19 September 2000 with subsequent amendments and supplements), the court which considers the complaint of the buyer-up regarding a decision of the executive institution of the municipality to delete the address of the place of buying-up from the licence held by that economic subject for the corresponding violation of law has the powers, after having taken account of the nature of the violation, liability mitigating and other significant circumstances, to decide that the sanction—the deletion of the address of the place of buying-up from the licence—is for that economic subject obviously too big, disproportionate (inadequate) for the committed violation of law, therefore, unfair, thus, should not be applied to that violator of law for the said violation of law, does not mean that the court may disregard the principled provision that the said economic subject, the buyer-up, violated the essential conditions (which were known and comprehensible to the said subject) of being in the market of buying-up scrap and waste of non-precious metals meant for realisation—it did not follow the imperative requirements of law—and that this market must be protected from such participants who, while being in that market, acted not according to, but against its rules. Therefore, such cases when the said prohibition sanction does not have to be applied may only be very rare, and exceptional. It would be constitutionally unjustifiable if by not applying the prohibition sanction, the violator would remain unpunished for an obvious violation of law committed by him. However, if the court decided not to apply the prohibition sanction, in the corresponding legal act it should be clearly and rationally reasoned why this sanction should not be applied—what values enshrined in the Constitution and protected and defended by it, would be violated by deleting the address of the place of buying-up from the licence. Otherwise, one would have to hold that the decision of the court ignores the public interest. In addition, it needs to be held that, as the Constitutional Court stated in its rulings of 29 December 2004 and 21 January 2008, under the Constitution, the state must seek to protect and defend the person and society from dangerous violations of law, and also it has to be able to do it efficiently. It would be not the justice that is consolidated in the Constitution.

27. It has been mentioned that even though under the Law on Buying-up Scrap and Waste of Non-Precious Metals Meant for Realisation (wording of 23 October 2001 with subsequent amendments) the address of the place of buying-up is deleted from the licence held by the buyer-up without specifying the term, it is not necessarily deleted from the licence for good—if the place of buying-up meets the established requirements, it may be entered on the licence again; however, in certain cases when the prohibition sanction is applied for the violation of law committed by the economic subject, upon taking account of the nature of that violation of law, liability mitigating and other significant circumstances, the address of the place of buying-up must be deleted from the licence held by the buyer-up namely for good and it must not be permitted to enter it on the licence again. It has also been mentioned that this law does not include any provisions from which one could decide in what cases and under what circumstances (as well as after how much time) it should be permitted to enter that address of the place of buying-up on the licence which previously was deleted from the licence held by the buyer-up (inter alia, for the corresponding violation of law committed by that economic subject) by the competent institution, and in which cases and under which circumstances (as well as after what period of time)—not to be permitted. In this respect, the legal regulation established in the law is not sufficient, it contains a gap. It has also been mentioned that, under Item 33.3 of the Rules, the buyer-up shall have the right, under procedure established by law, to lodge a complaint against the decision of the competent institution—executive institution of the municipality—regarding the refusal to enter the address of the place of buying-up on the licence.

Therefore, it needs to be held that one may also lodge a complaint to court against such decisions of the executive institutions of the municipality, when it is refused to enter that address of the place of buying-up on the licence which had formerly been deleted from the licence held by the buyer-up by the executive institution of the municipality, inter alia, for the corresponding violation of law committed by that economic subject. When adopting a decision in such a case, the court must inter alia, follow not only the laws which, as mentioned before, include legal gaps, but also law, inter alia, the principles of justice, reasonableness, proportionality and good faith which stem from the Constitution.

28. It needs also to be emphasised that in such cases, the decisions of the court may fill in the corresponding gap of the legal regulation only ad hoc, only as regards a particular social relation. The official constitutional doctrine of legal gaps (without excluding also legislative omission) set forth, inter alia, in the Constitutional Court’s decision of 8 August 2006, ruling of 7 June 2007 and decision of 1 February 2008 should be applied mutatis mutandis to the discussed situation. In this context it needs to be noted that absence of the corresponding legal regulation in the law (in the considered case—the Law on Buying-up Scrap and Waste of Non-Precious Metals Meant for Realisation (wording of 23 October 2001 with subsequent amendments)) does not mean that the courts that have to apply the provisions of the law which include legal gaps may decide not to consider those cases only because of the fact that the legislature has not yet properly regulated the corresponding relations by law (or, it is, of course, not to be applied to the discussed legal situation, the legal regulation which had been established by the legislature was ruled to be in conflict with the Constitution) (the Constitutional Court’s ruling of 7 June 2007).

29. Therefore, the mere fact that, under Item 34 of the Rules (wording of 31 August 2004) (as well as under the Law on Buying-up Scrap and Waste of Non-Precious Metals Meant for Realisation (wording of 23 October 2001 with subsequent amendments)), the address of the place of buying-up is deleted from the licence held by the buyer-up without specifying the term of such deletion, should not be regarded as a deviation from the imperatives of justice and a state under the rule of law which are enshrined in the Constitution, and as violation of Paragraph 3 of Article 46 of the Constitution.

30. Taking account of the arguments set forth, the conclusion should be drawn that Item 34 of the Rules (wording of 31 August 2004) is not in conflict with Paragraph 3 of Article 46 of the Constitution, and with the constitutional principles of a state under the rule of law and justice.

Conforming to Articles 102 and 105 of the Constitution of the Republic of Lithuania and Articles 1, 53, 54, 55 and 56 of the Law on the Constitutional Court of the Republic of Lithuania, the Constitutional Court of the Republic of Lithuania gives the following

ruling:

To recognise that Item 34 (Official Gazette Valstybės žinios, 2004, No. 134-4858) of the Licensing Rules for Buying-up Scrap and Waste of Non-Precious Metals Meant for Realisation (wording of 31 August 2004) as approved by the Resolution of the Government of the Republic of Lithuania (No. 177) “On Approving the Licensing Rules for Buying-up Scrap and Waste of Non-Precious Metals Meant for Realisation” of 6 February 2002 (wording of 31 August 2004) is not in conflict with the Constitution of the Republic of Lithuania.

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

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

Justices of the Constitutional Court: Egidijus Kūris
                                                                      Kęstutis Lapinskas
                                                                      Zenonas Namavičius
                                                                      Ramutė Ruškytė
                                                                      Vytautas Sinkevičius
                                                                      Stasys Stačiokas
                                                                      Romualdas Kęstutis Urbaitis