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On applying to the Court of Justice of the European Communities

Case No. 47/04

 

THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

 

DECISION

ON THE APPLICATION TO THE COURT OF JUSTICE OF EUROPEAN COMMUNITIES FOR A PRELIMINARY RULING

 

8 May 2007

Vilnius

 

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

The court reporter—Daiva Pitrėnaitė

The Constitutional Court of the Republic of Lithuania, at its procedural sitting, has considered a report by Stasys Stačiokas, a Justice of the Constitutional Court, on the preparation of constitutional justice case No. 47/04 for the judicial consideration subsequent to the petition of a group of members of the Seimas of the Republic of Lithuania, the petitioner, requesting an investigation into whether the provision “the equipment of a customer may be connected to transmission network only in cases where the operator of the transmission network refuses, due to established technical or maintenance requirements, to connect the equipment of the customer to the distribution network which is on the territory indicated in the licence of the distribution network operator” of Paragraph 2 of Article 15 of the Republic of Lithuania’s Law on Electricity (wording of 1 July 2004) is not in conflict with Paragraph 2 of Article 5, Paragraphs 1, 2, 4, and 5 of Article 46 of the Constitution of the Republic of Lithuania and with the constitutional principle of a state under the rule of law.

The Constitutional Court

has established:

I

On 1 July 2004, the Seimas adopted the Republic of Lithuania’s Law on the Amendment to the Law on Electricity by Article 1 whereof it amended the Republic of Lithuania’s Law on Electricity (wording of 20 July 2000 with subsequent amendments and supplements) and set it forth in a new wording. The Law on Electricity (wording of 1 July 2004; hereinafter also referred to as the Law) came into force on 10 July 2004.

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

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

Under Paragraph 2 of Article 1 of the Law (wording of 1 July 2004) and Item 8 of the Annex to the Law titled “The Implemented Acts of European Union Law” the provisions of the Law (wording of 1 July 2004) are harmonised, inter alia, with Directive 2003/54/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in electricity and repealing Directive 96/92/EC (hereinafter also referred to as Directive 2003/54/EC or the Directive).

II

On 28 October 2004, a group of members of the Seimas consisting from the members of the Seimas: Julius Sabatauskas, Rimantas Sinkevičius, Alfonsas Macaitis, Kęstutis Kriščiūnas, Viktoras Rinkevičius, Kazimira Danutė Prunskienė, Antanas Baura, Gražina Šmigelskienė, Edvardas Karečka, Jūratė Juozaitienė, Nikolajus Medvedevas, Ona Babonienė, Jonas Korenka, Gintautas Mikolaitis, Dobilas Jonas Kirvelis, Mindaugas Bastys, Petras Papovas, Jonas Jurkus, Janė Narvilienė, Algimantas Salamakinas, Giedrė Purvaneckienė, Antanas Valys, Virmantas Velikonis, Valerijus Simulikas, Gintautas Kniukšta, Nijolė Steiblienė, Jonas Čiulevičius, Egidijus Klumbys, Gintautas Babravičius, Vasilijus Popovas, Artur Plokšto, whose representatives are the members of the Seimas Julius Sabatauskas and Nijolė Steiblienė and the advocate Gytis Kaminskas, applied to the Constitutional Court with the petition requesting an investigation into whether the provision “the equipment of a customer may be connected to transmission network only in cases where the operator of the transmission network refuses, due to established technical or maintenance requirements, to connect the equipment of the customer to the distribution network which is on the territory indicated in the licence of the distribution network operator” of Paragraph 2 of Article 15 of the Law on Electricity (wording of 1 July 2004) is not in conflict with Paragraph 2 of Article 5, Paragraphs 1, 2, 4, and 5 of Article 46 of the Constitution.

This petition of the group of members of the Seimas, the petitioner, was accepted for consideration by the Constitutional Court’s decision of 15 December 2004. Subsequent to this petition case No. 47/04 is being prepared for the Constitutional Court’s hearing.

III

The petition of the group of members of the Seimas, the petitioner, requesting an investigation into the constitutionality of the provision of Paragraph 2 of Article 15 of the Law on Electricity (wording of 1 July 2004) is substantiated, inter alia, by the fact that the impugned provision of the Law does not entrench the freedom of the customer of electricity to choose the concrete electricity sending (transmission or distribution) network in order to connect his equipment and obligates him to connect that equipment to the electricity distribution network. However, according to the petitioner, Directive 2003/54/EC does not establish any direct limitations on the customer of electricity to connect his equipment to the electricity transmission network, nor any obligation to connect only to the electricity distribution network, therefore, in the opinion of the petitioner, the impugned provision of the Law, if assessed in the context of European Union law, is discriminatory; it is also in conflict with the provisions of Article 46 of the Constitution that Lithuania’s economy shall be based on the right of private ownership, freedom of individual economic activity and initiative (Paragraph 1), that the state shall support economic efforts and initiative that are useful to society (Paragraph 2), that the law shall prohibit monopolisation of production and the market and shall protect freedom of fair competition (Paragraph 4), that the state shall defend the interests of the consumer (Paragraph 5), as well as with Paragraph 2 of Article 5 of the Constitution, which provides that the scope of power shall be limited by the Constitution, and with the constitutional principle of a state under the rule of law.

IV

In the course of the preparation of the case for the Constitutional Court’s hearing, written explanations were received from the representatives of the party concerned, the Seimas, who were Vaclovas Karbauskis, a member of the Seimas, and Paulius Griciūnas, senior advisor of the Legal Department of the Office of the Seimas, in which it is asserted that the impugned provision is not in conflict with the provisions of the Constitution specified by the petitioner. The position of the representatives of the party concerned is substantiated, inter alia, by the interpretation of the provisions of Directive 2003/54/EC that, allegedly, the Directive does not limit the right of the user of electricity to connect the equipment directly to the electricity transmission network, since it does not regulate such matters altogether; nor does the Directive establish any obligation to connect the equipment of customers of electricity only to the electricity distribution network, however, it does not prohibit any such legal regulation which is established in the impugned provision of the Law, either. According to the representatives of the party concerned, it is clear from the Directive that these matters are within the competence of Member States and must be decided on the national level.

V

In the course of the preparation of the case for judicial consideration written explanations were received from V. Uspaskich, the Minister of Economy of the Republic of Lithuania, D. Kriaučiūnas, Director General of the European Law Department under the Ministry of Justice of the Republic of Lithuania, R. Stanikūnas, Chairman of the Competition Council of the Republic of Lithuania, F. Petrauskas, General Director of the State Consumer Rights Protection Authority, V. Jankauskas, Chairman of the National Control Commission for Prices and Energy, S. Juodvalkis, Vice-president of the Lithuanian Consumers Association, and J. Vilemas, Chairman of the Council of the Lithuanian Energy Institute.

VI

In the course of the preparation of the case for judicial consideration, letter No. 010-S-13/450-S-65 of 13 January 2006 was received from the Speaker of the Seimas A. Paulauskas whereby the Constitutional Court was informed, inter alia, about the 19 October 2005 letter of D. Nedzinskas, Director General of the joint-stock company (hereinafter—JSC) VST (Vakarų skirstomieji tinklai [Western Distribution Network]) to A. Piebalgs, the Member of the European Commission responsible for energy, and an answer (D/1225 of 21 December 2005) of the same Member of the European Commission to the aforesaid letter. The question “Does the customers’ right to freely choose an independent supplier of electricity, as determined in Directive 2003/54/EC, bind the Member States to establish the customers’ right to freely choose to which networks, i.e. transmission and/or distribution, they may connect their electricity facilities?” was answered as follows: “The view that the customer has the right to choose between a connection to the distribution or the transmission system as he wishes is not required in Directive 2003/54. The customer has the right to be connected to the electricity system; how this is carried out in detail is a question of subsidiarity.”

VII

In the course of the preparation of the case for judicial consideration, the 5 January 2007 letter from the advocate G. Kaminskas, a representative of the petitioner, was received wherein additional explanations were presented as to the conflict of the impugned provision of the Law with the Constitution, and it was attempted to prove that not only the impugned provision of the Law, but also some other provisions thereof, as well the entire Law according to the procedure of its adoption, were in conflict with the Constitution. In his another letter of 29 January 2007, the same representative of the petitioner specified the said additional explanations.

VIII

In the course of the preparation of the case for judicial consideration a letter titled “On the information about the instituted violation procedure regarding Directive 2003/54/EC of 23 June 2003” was received from V. Sarapinas, the Government Secretary, whereby the Constitutional Court was informed about the 12 December 2006 Reasoned Opinion No. 2006/2059 of the European Commission addressed to the Republic of Lithuania on insufficient transfer of Directive 2003/54/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in electricity into national law and about the answer of the Minister of Economy of the Republic of Lithuania “On Reasoned Opinion No. 2006/2059” to the Secretariat-General of the European Commission. The obligations which the Republic of Lithuania failed to carry out subsequent to Directive 2003/54/EC, which were pointed out in the said Reasoned Opinion of the European Commission, are not related with Paragraph 2 of Article 15 of the Law on Electricity (wording of 1 July 2004) whose provision is impugned in the constitutional justice case at issue.

IX

Inter alia, the following factual circumstances have been established in this constitutional justice case.

In Lithuania, the equipment of most electricity customers (under Paragraph 35 of Article 2 of the Law, the customer is a person buying electricity for the purpose of use) is connected to the electricity network by which the electricity suitable to the equipment of the customer is transmitted, i.e. it is connected to distribution networks. At present 1,395,000 equipment units of customers are connected to the biggest distribution network operators, which are JSC Rytų skirstomieji tinklai [Eastern Distribution Networks] and JSC VST. The distribution network operators are the most important customers of the transmission networks. Beside the aforesaid distribution network operators (JSC Rytų skirstomieji tinklai and JSC VST), there are five enterprises, which have licences for distribution activity, and which run local networks designed for meeting the requirements of residents living in a rather small territory or for meeting the requirements of the enterprise itself. These are: JSC Achema, JSC Akmenės cementas, JSC Ekranas, JSC Lifosa and the state-owned enterprise Visagino energija. Also, the equipment of six customers—JSC Dirbtinis pluoštas, the closed joint-stock company Kauno vandenys, the special purpose joint-stock company Lietuvos geležinkeliai, JSC Mažeikių nafta, JSC Mažeikių elektrinė, and JSC Vilniaus energetinė statyba—is connected to transmission networks. The equipment of these manufacturing enterprises was directly connected to the high-voltage networks as far back as the time of Soviet government, when all electricity networks used to be one electricity system in which electricity generation, sending and supply were not separate, but were run and developed in a centralised manner. There appeared a situation that the equipment of some customers, as well as residents, was connected to the electricity equipment of manufacturing enterprises; the provision of such customers with electricity directly depends on the financial capabilities of corresponding manufacturing enterprises, etc.

X

In the context of the constitutional justice case at issue, special attention is to be paid to the explanations of the representatives of the party concerned and the specialists that the impugned provision of the Law, which obliges the customer to connect his equipment first to the distribution networks, ensures the right of minor and vulnerable customers to pay the smallest price possible for electricity. According to the representatives and specialists of the party concerned, the final electricity price for customers is composed of four main constituent parts: prices of electricity generation, transmission, distribution and supply. The establishment of sending (transmission and distribution) of electricity price is based on the so-called “postage stamp” (or “unit tariff”) principle, according to which it is required that the top limits of prices for sending (transmission and distribution) services be calculated by dividing the necessary level of the income from the sending (transmission and distribution) activity by the general amount of electricity sent via corresponding (transmission or distribution) networks. In this context it needs to be mentioned that the necessary level of income from electricity sending activity includes the expenditure of exploitation, repair and restoration of electricity networks, and such expenditure does not directly depend on the amount of electricity sent via networks and virtually it is not subject to change; it also includes the expenses (investments) regarding expansion of electricity networks, thus, also the expenses of distribution networks’ operators related to connection of the equipment of customers to distribution networks; therefore, these expenditures and expenses fall equally on all electricity customers. According to the representatives of the party concerned and the specialists, from the economical point of view it would be more useful to financially capable big economic entities to connect directly to electricity transmission networks, since they would not have to pay for electricity sending via distribution networks; in case the opportunities of such connection are limited, then preconditions would be created to substantially decrease the amount of electricity sent via distribution networks; the price of electricity sending via networks (following the “postage stamp” principle) would increase in regard to most customers (minor and vulnerable customers), who are financially incapable to connect to electricity transmission networks. Thus, one would disregard the provision “Member States should take the necessary measures to protect vulnerable customers in the context of the internal electricity market” of statement part 24 of the Preamble to Directive 2003/54/EC.

The Constitutional Court

holds that:

I

1. Under Paragraph 1 of Article 102 of the Constitution, the Constitutional Court shall decide whether laws are not in conflict with the Constitution. Paragraph 2 of the same article provides that the status of the Constitutional Court and the procedure for the execution of its powers shall be established by the Law on the Constitutional Court.

Article 1 titled “The Constitutional Court—a Judicial Institution” of the Law on the Constitutional Court entrenches the purpose of the Constitutional Court, which is to guarantee the supremacy of the Constitution in the legal system as well as constitutional legality. It is also established therein that the Constitutional Court shall do that by deciding whether, inter alia, laws are not in conflict with the Constitution. Thus, the status of the Constitutional Court as free and independent court is entrenched in this article of the Law on the Constitutional Court (the Constitutional Court’s ruling of 6 June 2006).

2. The peculiarities of the constitutional purpose and competence of the Constitutional Court, its special place in the system of judicial power are interrelated in that the Constitutional Court, under the Constitution, executes constitutional judicial control. Under Paragraph 1 of Article 106 of the Constitution, only the Government, not less than 1/5 of all the members of the Seimas, and the courts shall have the right to apply to the Constitutional Court concerning the compliance of laws with the Constitution. In the course of investigation into the constitutionality of the laws, the Constitutional Court decides constitutional disputes between the Government, the group of members of the Seimas (which consists of not less than 1/5 of all members of the Seimas), or the courts with the institution that has adopted the impugned law, i.e. the Seimas, that is to say, the Constitutional Court decides legal disputes of different character than those which are decided by courts of general jurisdiction or specialised (administrative) courts. Under Paragraph 1 of Article 107 of the Constitution, a law (or part thereof) may not be applied from the day of official promulgation of the decision of the Constitutional Court that this law (or part thereof) is in conflict with the Constitution. Thus, the corresponding decision of the Constitutional Court has erga omnes impact on the whole practice of the application of the investigated law (part thereof) (the Constitutional Court’s ruling of 28 March 2006). The decisions of the Constitutional Court on issues within its competence according to the Constitution shall be final and not subject to appeal (Paragraph 2 of Article 107 of the Constitution).

3. When investigating whether the impugned law (part thereof) is not in conflict with the Constitution, the Constitutional Court officially construes both the Constitution and the law. While doing so, the Constitutional Court applies various methods of construction of law: the systemic method, the method of general legal principles, the logical, teleological, the intentions of the legislator, precedents, historical, comparative etc. methods.

II

1. In the constitutional justice case at issue the constitutionality of the provision “the equipment of a customer may be connected to transmission network only in cases where the operator of the transmission network refuses, due to established technical or maintenance requirements, to connect the equipment of the customer to the distribution network which is on the territory indicated in the licence of the distribution network operator” of Paragraph 2 of Article 15 of the Law on Electricity (wording of 1 July 2004).

It has been mentioned that the provisions of the Law (wording of 1 July 2004), as pointed out in the Law itself, are harmonised with Directive 2003/54/EC. It needs to be held (while taking account of the title “The Implemented Acts of European Union Law” of the Annex to the Law) that it is entrenched in the Law itself that it has been passed by implementing the legal acts of European Union law, inter alia, Directive 2003/54/EC.

2. It is pointed out in the Preamble to the Directive that it was adopted in accordance with the procedure laid down in Article 251 of the Treaty establishing the European Community, having regard to this treaty and in particular Article 47(2), Article 55 and Article 95 thereof.

3. Paragraph 2 of the Constitution Act of the Republic of Lithuania “On Membership of the Republic of Lithuania in the European Union” (which is a constituent part of the Constitution) provides that the norms of the European Union law shall be a constituent part of the legal system of the Republic of Lithuania and where it concerns the founding Treaties of the European Union, the norms of the European Union law shall be applied directly, while in the event of collision of legal norms, they shall have supremacy over the laws and other legal acts of the Republic of Lithuania.

The Constitutional Court has construed that these provisions establish expressis verbis the collision rule, which consolidates the priority of application of European Union legal acts in the cases where the provisions of the European Union arising from the founding Treaties of the European Union compete with the legal regulation established in Lithuanian national legal acts (regardless of what their legal force is), save the Constitution itself (the Constitutional Court’s rulings of 14 March 2006 and 21 December 2006).

4. Therefore, it is necessary to construe the impugned provision of the Law which, as mentioned, was passed while implementing, inter alia, Directive 2003/54/EC, in the context of the legal regulation established in the said directive.

III

1. In this context the provisions of Directive 2003/54/EC concerning connection of the equipment of customers to electricity sending (transmission or distribution) networks are of special importance.

Article 20 titled “Third party access” of Chapter VII of the Directive provides:

1. Member States shall ensure the implementation of a system of third party access to the transmission and distribution systems based on published tariffs, applicable to all eligible customers and applied objectively and without discrimination between system users. Member States shall ensure that these tariffs, or the methodologies underlying their calculation, are approved prior to their entry into force in accordance with Article 23 and that these tariffs, and the methodologies—where only methodologies are approved—are published prior to their entry into force.

2. The operator of a transmission or distribution system may refuse access where it lacks the necessary capacity. Duly substantiated reasons must be given for such refusal, in particular having regard to Article 3. Member States shall ensure, where appropriate and when refusal of access takes place, that the transmission or distribution system operator provides relevant information on measures that would be necessary to reinforce the network. The party requesting such information may be charged a reasonable fee reflecting the cost of providing such information.”

3. Thus, Paragraph 1 of Article 20 of the Directive establishes a duty of Member States to create a system of third party access to the transmission and distribution systems based on published tariffs, applicable to all eligible customers and applied objectively and without discrimination between system users. If the clause “a system of third party access to the transmission and distribution systems <…>, applicable to all eligible customers” is construed only linguistically, one could presume that Member States must create a system, where all eligible customers are granted access, if they wish so, to transmission as well as distribution systems. Paragraph 2 of this article provides for a single reservation in granting this access: one may refuse access where it lacks the necessary capacity; the Directive does not provide explicitly for any other reservations when the system operator could refuse to connect the electricity equipment to the transmission or distribution system. The said presumption that all eligible customers are granted access, if they wish so, to transmission as well as distribution systems is supported by the fact that Paragraph 3 of Article 2 titled “Definitions” of the Directive defines the notion “transmission“ as “the transport of electricity on the extra high-voltage and high-voltage interconnected system with a view to its delivery to final customers or to distributors, but not including supply”; thus, it is established expressis verbis that transmission of electricity to the customer also includes transport of electricity, inter alia, to final customers. The linguistic construction of this notion would permit to assert that also direct transmission to the final customer is possible, without making use of distribution networks.

4. On the other hand, the provisions of Directive 2003/54/EC regarding connection of electricity equipment of customers to electricity sending (transmission or distribution) networks can be construed not only linguistically, but also in the context of other provisions of the Directive by which the competition in the electricity market is promoted. For instance, statement part 6 of the Preamble to Directive 2003/54/EC provides that for competition to function, network access must be non-discriminatory, transparent and fairly priced, while statement part 7, inter alia, points out that in order to complete the internal electricity market, non-discriminatory access to the network of the transmission or the distribution system operator is of paramount importance.

In addition, one is to presume that the provisions of the Directive regarding connection of electricity equipment of customers to electricity sending (transmission or distribution) networks are also to be construed in the context of this directive by which one seeks socially important objectives, i.e. rendition of universal services, consumer protection, environmental protection etc. For instance, under Paragraph 3 titled “Public service obligations and customer protection” of Article 3 of the Directive, Member States shall ensure that all household customers, and, where Member States deem it appropriate, small enterprises, (namely enterprises with fewer than 50 occupied persons and an annual turnover or balance sheet not exceeding EUR 10 million), enjoy universal service, that is the right to be supplied with electricity of a specified quality within their territory at reasonable, easily and clearly comparable and transparent prices; while under Paragraph 5, Member States shall take appropriate measures to protect final customers, and shall in particular ensure that there are adequate safeguards to protect vulnerable customers, including measures to help them avoid disconnection, etc. Such presumption is strengthened also by the provision “Member States should take the necessary measures to protect vulnerable customers in the context of the internal electricity market” of statement part 24 of the Preamble to the Directive.

In this context it needs to be emphasised that, as mentioned, according to the explanation of the representatives of the party concerned and the specialists, the impugned provision of the Law, which obliges the customer to connect his equipment first to the distribution networks, ensures the right of minor and vulnerable customers to pay the smallest price possible for electricity, since the establishment of sending (transmission and distribution) of electricity price is based on the so-called “postage stamp” (or “unit tariff”) principle, where the expenditures and expenses of the operators of electricity sending (transmission or distribution) networks fall equally on all electricity customers; as regards financially capable big economic entities, from the economical point of view, it would be more useful to them to connect directly to electricity transmission networks, since they would not have to pay for electricity sending via distribution networks; in case the opportunities of such connection are limited, then preconditions would be created to substantially decrease the amount of electricity sent via distribution networks; the price of electricity sending via networks (following the “postage stamp” principle) would increase in regard to most customers (minor and vulnerable customers), who are financially incapable to connect to electricity transmission networks.

5. Therefore, it is necessary to give an answer to the question whether the provisions of Article 20 of the Directive mean that Member States are required to ensure that every (even household) customer might enjoy the right to connect to electricity transmission networks. In other words, one is to find out whether the Directive requires that legal acts of Member States consolidate the right of every customer to choose as to which—transmission or distribution—networks he desires to connect directly, or whether the Directive consolidates only a possibility for the customer to be connected to a network, so that his electricity needs and reasonable electricity price might be ensured. In this context one is to mention the fact that it is also possible to ensure the transparency and non-discrimination of customers of different categories, which must be ensured under Article 20 of the Directive, when the equipment of the customers is connected to distribution networks, for example, after one has established certain customers’ classes, while following objective grounds (see the Communication from the European Commission to the Council and the European Parliament “Completing the internal energy market”, COM/2001/0125 final; 2001/0077 (COD); 2001/0078 (COD), p. 38).

Also the subsidiarity principle is of importance here (see statement part 31 of the Preamble to Directive 2003/54/EC), which, perhaps, permits to assert that Member States are allowed to decide this question by themselves.

6. Thus, in the constitutional justice case at issue, the Constitutional Court has to ascertain whether Article 20 of the Directive is to be construed as obliging Member States to establish the legal regulation whereby any third party has the right, at its discretion, providing there exists “the necessary capacity” of electricity system, to choose as to which system—electricity transmission or electricity distribution—it wishes to connect, while the operator of such system has a duty to grant access to such network.

7. Under Article 220 of the Treaty Establishing the European Community, the Court of Justice of European Communities shall ensure that in the interpretation and application of this Treaty the law is observed, while under Article 234 of the Treaty Establishing the European Community, the Court of Justice of European Communities shall have jurisdiction to give preliminary rulings concerning the interpretation of acts of the institutions of the Community (thus, also of Directive 2003/54/EC).

Conforming to Article 102 of the Constitution of the Republic of Lithuania, Article 234 of the Treaty Establishing the European Community, and Articles 1 and 28 of the Law on the Constitutional Court of the Republic of Lithuania, the Constitutional Court adopts the following

decision:

1. To apply to the Court of Justice of European Communities for a preliminary ruling on this issue: Is Article 20 of Directive 2003/54/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in electricity and repealing Directive 96/92/EC to be construed as obliging Member States to establish the legal regulation whereby any third party has the right, at its discretion, providing there exists “the necessary capacity” of electricity system, to choose as to which system—electricity transmission or electricity distribution—it wishes to connect, while the operator of such system has a duty to grant access to such network?

2. To decide the issue of consideration of constitutional justice case No. 47/04 at the judicial hearing of the Constitutional Court of the Republic of Lithuania after the requested preliminary ruling of the Court of Justice of European Communities is received.

Justices of the Constitutional Court:         Armanas Abramavičius

                                                                              Toma Birmontienė

                                                                              Egidijus Kūris

                                                                              Kęstutis Lapinskas

                                                                              Zenonas Namavičius

                                                                              Ramutė Ruškytė

                                                                              Vytautas Sinkevičius

                                                                              Stasys Stačiokas

                                                                              Romualdas Kęstutis Urbaitis