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On refusing to consider a petition

 

THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

DECISION

ON THE PETITION OF THE VILNIUS REGIONAL ADMINISTRATIVE COURT, THE PETITIONER, REQUESTING AN INVESTIGATION INTO WHETHER ARTICLE 4 (WORDINGS OF 4 NOVEMBER 2004, 19 MAY 2005, 17 NOVEMBER 2005, 23 DECEMBER 2005, AND 4 MAY 2006) OF THE REPUBLIC OF LITHUANIA’S LAW ON STATE SOCIAL INSURANCE AND ARTICLE 2 (WORDINGS OF 4 NOVEMBER 2004, 19 MAY 2005 AND 17 NOVEMBER 2005) OF THE REPUBLIC OF LITHUANIA’S LAW ON STATE SOCIAL INSURANCE PENSIONS ARE NOT IN CONFLICT WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA

5 November 2008
Vilnius

 

The Constitutional Court of the Republic of Lithuania, composed of the Justices of the Constitutional Court: Armanas Abramavičius, Toma Birmontienė, Pranas Kuconis, Kęstutis Lapinskas, Zenonas Namavičius, Ramutė Ruškytė, Egidijus Šileikis, Algirdas Taminskas, and Romualdas Kęstutis Urbaitis

The court reporter—Daiva Pitrėnaitė

The Constitutional Court of the Republic of Lithuania, at its procedural sitting, considered the petition of the Vilnius Regional Administrative Court, the petitioner, requesting an investigation into “whether Art. 4 (wordings 04-11-2004, 19-05-2005, 17-11-2005, 23-12-2005, 04-05-2006) of the 21-05-1991 Law on State Social Insurance (wording 04-11-2004), Art. 2 (wording 04-11-2004) of the 18-07-1994 Law on State Social Insurance Pensions and Art. 2 (wordings 19-05-2005 and 17-11-2005) of the 18-07-1994 Law on State Social Insurance Pensions (wording 19-05-2005), to the extent that it is not prescribed that a person who works in several places of employment, and who, during the accounting period, has paid the contribution for reception of the main part of the pension (basic pension) from the income received in a concrete place of employment, does not have to pay the contributions for the same accounting period for reception of the main part of the pension (basic pension) from the income received in the other places of employment, are not in conflict with Par. 1 of Art. 29 of the Constitution, the provision of Art. 52 thereof that the state shall guarantee to citizens the right to receive old age pensions, Par. 1 of Art. 23 thereof, and the constitutional principles of justice and a state under the rule of law”.

The Constitutional Court

has established:

The Vilnius Regional Administrative Court, the petitioner, was considering an administrative case. By its ruling the said court suspended the consideration of the case and applied to the Constitutional Court with a petition requesting an investigation into “whether Art. 4 (wordings 04-11-2004, 19-05-2005, 17-11-2005, 23-12-2005, 04-05-2006) of the 21-05-1991 Law on State Social Insurance (wording 04-11-2004), Art. 2 (wording 04-11-2004) of the 18-07-1994 Law on State Social Insurance Pensions and Art. 2 (wordings 19-05-2005 and 17-11-2005) of the 18-07-1994 Law on State Social Insurance Pensions (wording 19-05-2005), to the extent that it is not prescribed that a person who works in several places of employment, and who, during the accounting period, has paid the contribution for reception of the main part of the pension (basic pension) from the income received in a concrete place of employment, does not have to pay the contributions for the same accounting period for reception of the main part of the pension (basic pension) from the income received in the other places of employment, are not in conflict with Par. 1 of Art. 29 of the Constitution, the provision of Art. 52 thereof that the state shall guarantee to citizens the right to receive old age pensions, Par. 1 of Art. 23 thereof, and the constitutional principles of justice and a state under the rule of law”.

The Constitutional Court

holds that:

I

1. The Vilnius Regional Administrative Court, the petitioner, requests an investigation into whether Article 4 (wordings of 4 November 2004, 19 May 2005, 17 November 2005, 23 December 2005, and 4 May 2006) of the Law on State Social Insurance and Article 2 (wordings of 4 November 2004, 19 May 2005 and 17 November 2005) of the Law on State Social Insurance Pensions, both to the extent that, according to the petitioner, it is not prescribed that a person who works in several places of employment, and who, during the accounting period, has paid the contribution for reception of the main part of the pension (basic pension) from the income received in a concrete place of employment, does not have to pay the contributions for the same accounting period for reception of the main part of the pension (basic pension) from the income received in the other places of employment, are not in conflict with Paragraph 1 of Article 23, Paragraph 1 of Article 29 of the Constitution, the provision of Article 52 thereof that the state shall guarantee to citizens the right to receive the old age pension, and with the constitutional principles of justice and a state under the rule of law.

2. The petition of the Vilnius Regional Administrative Court, the petitioner, is substantiated by the following arguments.

The impugned Article 4 of the Law on State Social Insurance and Article 2 of the Law on State Social Insurance Pensions do not establish explicitly that a person who works in several places of employment, and who, during the accounting period, has paid the contribution for reception of the main part of the pension (basic pension) from the income received in a concrete place of employment, does not have to pay the contributions for the same accounting period for reception of the main part of the pension (basic pension) from the income received in the other places of employment. Since these legal acts do not contain the exception—absence of the obligation to pay the contribution for reception of the main part of the pension (basic pension) for the same accounting period—all persons must pay the contributions for reception of the main part of the pension (basic pension) for the same period in all places of employment, although the main (basic) pension to all persons does not depend on whether these persons work in one or several places of employment.

The petitioner has doubts whether the failure to establish such legal regulation in the said legal acts means that “they contain legal gaps, which could be treated as legislative omission, i.e. such legal gap that is prohibited by the Constitution”.

According to the petitioner, the provisions entrenched in Article 4 of the Law on State Social Insurance and Article 2 of the Law on State Social Insurance Pensions “are in part overlapping, i.e. they virtually regulate the same legal relations”. In the opinion of the petitioner, “it is in these articles (which define the group of persons who are compulsory insured by social insurance of pensions) of the said laws, that one should stipulate that a person, who works in several places of employment, after he, during the accounting period, has paid a contribution for reception of the main part of the pension (basic pension) from the income received in one place of employment does not have to pay contributions for reception of the main part of the pension (basic pension) from the income received in other places of employment for the same accounting period”.

3. It needs to be noted that it is clear from the petition of the petitioner by which he applied to the Constitutional Court that in the administrative case a dispute is being settled regarding the payment of contributions by a person (who worked in a closed-type joint-stock company, where he was insured by state social insurance and where the same person, alongside, conducted individual activity (he is a self-employed person)) to social insurance of pensions from the income received from such activity. The annual amount of income received by this person from the individual activity exceeded the amount of 12 minimum monthly salaries computed under procedure established by law.

Thus, in the administrative case considered by the Vilnius Regional Administrative Court, the petitioner, the dispute arose not regarding all persons who, according to the petitioner, work in several places of employment and who in one place of employment pay contributions for reception of the main part of the pension (basic pension) for a certain account period, and who have a duty to pay one more time for the same accounting period, but in the said there is a dispute only regarding a person, who works under employment contract and at the same time conducts individual activity (he is a self-employed person). It is also clear that the dispute arose not regarding the payment of contributions of social insurance, according to the petitioner, from all income received in other places of employment, but only from the annual amount of the income of a self-employed person, which were received while conducting individual activity (in the capacity of a self-employed person) and which exceed the amount of 12 minimum monthly salaries.

Thus, the petitioner requests an investigation into the compliance of Article 4 (wordings of 4 November 2004, 19 May 2005, 17 November 2005, 23 December 2005, and 4 May 2006) of the Law on State Social Insurance and Article 2 (wordings of 4 November 2004, 19 May 2005 and 17 November 2005) of the Law on State Social Insurance Pensions with the Constitution in the aspects regarding which there was no dispute in the case considered by him, and in the course of settlement of the said case it would not be necessary to apply the parts of these laws to the extent specified by the petitioner.

II

1. The Vilnius Regional Administrative Court, the petitioner, impugns, inter alia, the compliance of Article 4 (wordings of 4 November 2004, 19 May 2005, 17 November 2005, 23 December 2005, and 4 May 2006) of the Law on State Social Insurance (to the corresponding extent) with the Constitution.

The following was established in Article 4 (wording of 4 November 2004) of the Law on State Social Insurance:

1. The following persons shall be covered on a compulsory basis by social insurance of the types specified in Article 3 of this Law:

1) the persons employed under employment contracts with legal or natural persons, notary candidates (assessors) as well as the persons receiving remuneration for work and holding elected posts in elected organisations, appointed to region, town, district and local electoral and referendum commissions and receiving remuneration for work;

2) the state politicians, judges, and state officials indicated in the Law on the Remuneration of State Politicians, Judges and State Officials and the Law on the State Service (with the exception of the state servants indicated in Paragraph 2 of this Article) as well as the persons receiving remuneration for work and appointed to office by the Seimas, the Speaker of the Seimas, the President of the Republic or the Prime Minister.

2. The following persons shall be covered on a compulsory basis by social insurance of the types specified in Items 1 and 3 of Article 3 of this Law:

1) officers of the system of the interior service, the system of the State Security Department, the Special Investigation Service and the Prisons Department under the Ministry of Justice of the Republic of Lithuania as well as the officials of the establishments and enterprises subordinate thereto;

2) servicemen in the professional military service of the system of national defence and the statutory servants in the civil national defence service at the Second Investigation Department under the Ministry of National Defence;

3) the spouses of state servants and servicemen in professional military service who have not attained the pensionable age and do not receive the income related to employment relations—during a period when they reside abroad together with a state servant, where the state servant has been transferred to a post at a diplomatic mission, consular post of the Republic of Lithuania, mission of the Republic of Lithuania at an international organisation;

4) the servicemen fulfilling mandatory initial military service in the armed forces of the Republic of Lithuania and the persons fulfilling alternative national defence service.

3. Self-employed persons, with the exception of the persons engaged in individual activities under business certificates, shall be covered on a compulsory basis only by pension social insurance to receive the main and supplementary parts of a pension. These persons shall be insured on a compulsory basis to receive the supplementary part of the pension where the annual amount of their income as calculated by deducting the amount of income tax for the tax year from the taxable profit calculated according to the Law on Income Tax or the annual amount of income as calculated by deducting the amount of income tax for the tax year from the taxable income calculated according to the Law on Personal Income Tax is equal to or exceeds the amount of 12 minimum monthly salaries. Where the persons listed in this paragraph are covered by pension social insurance to receive the supplementary part of a pension, they may take out insurance for the pension benefits provided for in the Law on the Accumulation of Pensions.

4. The following persons shall be covered on a compulsory basis by pension social insurance to receive only the main part of a pension:

1) the persons engaged in individual activities under a business certificate;

2) at the choice of a family, a mother (adoptive mother) or a father (adoptive father) who actually raises a child or a child’s guardian raising a child under 3 years of age;

3) clergymen of traditional and other religious communities and associations recognised by the State as well as the nuns and monks working only in a convent and monastery;

4) one of the parents (adoptive parents) of a totally disabled person, or a person who has been declared, in accordance with the established procedure, a guardian or custodian of the totally disabled person and who nurses the said totally disabled person at home.

5. The following persons shall be covered on a compulsory basis only by social insurance of occupational accidents and occupational diseases:

1) pupils of vocational schools, students of post-secondary and higher schools as well as the persons posted by local labour exchange offices for vocational training or vocational rehabilitation—during their vocational practice at an establishment or enterprise;

2) the persons receiving remuneration for work and placed in social and psychological rehabilitation institutions—during the period of their work;

3) the persons sentenced to deprivation of freedom—during the period of their work.

6. The persons permanently resident in the Republic of Lithuania or an EU Member State who are at least 16 years of age may take out voluntary pension social insurance to receive the main or the main and supplementary part of a pension as well as sickness and maternity social insurance to receive sickness and maternity benefits during a period when they are not compulsorily covered by the social insurance of these types or are compulsorily covered by (have taken out) pension social insurance in accordance with the procedure laid down by law to receive only the main part of the pension. The procedure for paying social insurance contributions and for concluding agreements shall be laid down by the Government or an institution authorised by it.

7. With the exception of the persons who have attained the pensionable age, the persons who are compulsorily covered by pension social insurance to receive the main and supplementary part of a pension shall have the right at their own choice to accumulate a portion of the pension social insurance contribution with pension accumulation companies under the Law on Reform of the Pension System and the Law on the Accumulation of Pensions.”

2. Although Article 4 (wording of 4 November 2004) of the Law on State Social Insurance was amended and supplemented more than once, the legal regulation established therein, whereby self-employed persons (with the exception of the persons engaged in individual activities under business certificates) are categorised as persons who are covered on a compulsory basis by pension social insurance to receive the main and supplementary parts of a pension (the emergence of the insurance for the supplementary part of the pension is related with the corresponding annual amount of the income received by them) which is computed in the manner established in this article), remained unchanged.

Article 4 (wording of 4 November 2004 with subsequent amendments and supplements) of the Law on State Social Insurance was (and is) titled “Persons Covered by Social Insurance According to the Types of Social Insurance”, this article was (and is) designed for the regulation of the relations linked with the establishment of groups of persons who are who are covered on a compulsory basis by pension social insurance according to the types of social insurance (Paragraph 3 of this article indicates the group of self-employed persons (with the exception of the persons engaged in individual activities under business certificates) and, alongside, it is prescribed that these persons are covered only by one type of social insurance—pension social insurance (for the main and supplementary parts of a pension), also the conditions are pointed out under which such persons are insured for the supplementary part of a pension. Thus, this article impugned by the petitioner is designed for definition of groups of persons insured by state social insurance and it does not regulate situations, where persons, inter alia, self-employed ones, are permitted, when they have other insured income, not to pay social insurance contributions (for the main and supplementary parts of a pension) from the income from their individual activity.

It needs to be noted that the petitioner does not impugn the fact that certain groups of persons, inter alia, groups of self-employed persons, which, under the Law on State Social Insurance, are insured by social insurance on a compulsory basis, and which are pointed out in Article 4 (wordings of 4 November 2004, 19 May 2005, 17 November 2005, 23 December 2005, and 4 May 2006) of this law, have to be insured by state social insurance. The petitioner impugns something which, according to the petitioner, does not exist in this article, but which, in the opinion of the petitioner, should have been established.

3. The relations linked with the establishment of non-payment of social insurance contributions (the establishment of income and situations where social insurance contributions are not computed) are regulated in Article 8 titled “Income on Which and Cases When Social Insurance Contributions Shall Not Be Calculated” of the Law on State Social Insurance, about which the petitioner is silent. The following was established in Paragraph 2 (wording of 4 November 2004) of the said article:

2. The persons indicated in Paragraph 3 of Article 4 of this Law shall be allowed not to pay social insurance contributions (this period will not be included in social insurance record) only where the annual aggregate amount of income of these persons as calculated by deducting the aggregate amount of income (personal income) tax for the tax year from the taxable income (personal income) calculated under the Law on Income Tax (the Law on Personal Income Tax) is less than the amount of 12 minimum monthly salaries and these persons:

1) receive the social insurance old-age or social insurance work invalidity pension as awarded under the Law on State Social Insurance Pensions;

2) receive the social assistance pension or compensation, with the exception of the orphan’s social assistance pension awarded under the Law on State Social Assistance Benefits;

3) receive the old-age or work invalidity pension related to social insurance relations (social insurance pension) from an EU Member State and from a state with which the Republic of Lithuania has concluded an international agreement on social security;

4) are in imprisonment institutions or have been imposed, by a court’s judgment in accordance with the procedure laid down by the Criminal Code, compulsory medical treatment measures of in-patient observation or reformative sanctions in specialised mental health care institutions;

5) have registered the status of an individual enterprise or partnership in liquidation in the Register of Legal Subjects, and all the employees of the individual enterprise or partnership have been released from work;

6) are compulsorily covered by social insurance under laws of the Republic of Lithuania;

7) have the obligatory social insurance record to receive the social insurance old-age pension under the Law on State Social Insurance Pensions.”

4. The cited Paragraph 2 of Article 8 of the Law on State Social Insurance makes reference to Paragraph 3 (to one of the groups of persons—self-employed persons—specified in this paragraph) of Article 4 of this law, i.e. to the article the investigation of the compliance of which (to the corresponding extent) with the Constitution is requested by the petitioner.

Thus, it is clear from this legal regulation that the explicit provision, which consolidates the exception when self-employed persons (save those engaged in individual activities under business certificates) were allowed not to pay social insurance contributions, was in Paragraph 2 (wording of 4 November 2004) of Article 8 of the impugned Law on State Social Insurance. It was established in said Paragraph 2 (wording of 4 November 2004) of Article 8 of the law that self-employed persons (save those engaged in individual activities under business certificates) are allowed not pay social insurance contributions “only where” the annual aggregate amount of income of these persons as calculated by deducting the aggregate amount of income (personal income) tax for the tax year from the taxable income (personal income) calculated under Paragraph 2 of Article 8 is less than the amount of 12 minimum monthly salaries and these persons meet one or several conditions indicated in Paragraph 2 of Article 8 of the law, inter alia, they are covered by social insurance in a compulsory manner under laws of the Republic of Lithuania (Item 6 of Paragraph 2 of Article 8).

The Law on State Social Insurance (wording of 4 November 2004) was amended and/or supplemented more than once, however, its essence (in the aspect where the petitioner saw the constitutional problem) has remained unchanged: the self-employed persons (save those engaged in individual activities under business certificates), who are specified in Paragraph 2 of Article 8 (wordings of 4 November 2004, 19 May 2005, 17 November 2005, 23 December 2005, 3 April 2007, and 20 December 2007) of the Law on State Social Insurance, and whose annual aggregate amount of insured income computed under this law is less that the amount of 12 minimum monthly salaries, and who meet one or several conditions indicated in Paragraph 2 of Article 8 of the law, inter alia, they are covered by social insurance in a compulsory manner under laws of the Republic of Lithuania, are allowed not to pay state social insurance contributions in order to receive the main and supplementary parts of the pension.

It needs to be held that the relations (where self-employed persons (save those engaged in individual activities under business certificates) are allowed not to pay social insurance contributions, when they are covered by social insurance in a compulsory manner under laws of the Republic of Lithuania) which, according to the petitioner, are not regulated in Article 4 (wordings of 4 November 2004, 19 May 2005, 17 November 2005, 23 December 2005, and 4 May 2006) of the Law on State Social Insurance, and the non-regulation of these relations, according to the petitioner, is a legal gap prohibited by the Constitution, i.e. it is this that the Constitutional Court is requested to investigate, are regulated to the corresponding extent in Item 6 of Paragraph 2 of Article 8 (wording of 4 November 2004 with subsequent amendments and/or supplements) of the said law.

In his petition the petitioner keeps silent as regards the legal regulation established in Article 8 (wording of 4 November 2004 with subsequent amendments and/or supplements) of the Law on State Social Insurance and does not discuss at all the relation of this legal regulation (about which the petitioner keeps silent) with the legal regulation entrenched in Article 4 (wording of 4 November 2004 with subsequent amendments and/or supplements) of the Law on State Social Insurance, which is impugned by the petitioner.

When account is taken of the circumstances set forth, there are grounds to hold that the petition of the Vilnius Regional Administrative Court, the petitioner, requesting an investigation into the compliance (to the extent specified by the petitioner) of Article 4 (wording of 4 November 2004 with subsequent amendments and/or supplements) of the Law on State Social Insurance with the Constitution, is grounded on the reasoning other than that explicitly pointed out by the petitioner, thus, from this standpoint this request of the petitioner is fictitious. Under such circumstances this request of the petitioner should be regarded as one not falling within the jurisdiction of the Constitutional Court.

5. The Constitutional Court has held that a legal gap, inter alia, legislative omission, always means that the legal regulation of the corresponding social relations is established neither explicitly nor implicitly, neither in the said legal act (part thereof) nor in any other legal acts, even though there exists a need for legal regulation of these social relations, while the said legal regulation, in the case of legislative omission, must be established, while heeding the imperatives of the consistency and inner uniformity of the legal system stemming from the Constitution and taking account of the content of these social relations, precisely in that legal act (precisely in that part thereof), since this is required by a certain legal act of higher legal force, inter alia, the Constitution itself (the Constitutional Court’s decision of 8 August 2006).

6. The petitioner impugned the compliance of Article 2 (wordings of 4 November 2004, 19 May 2005, and 17 November 2005) of the Law on State Social Insurance Pensions with the Constitution to the same extent as it impugned the compliance of Article 4 (wordings of 4 November 2004, 19 May 2005, 17 November 2005, 23 December 2005, and 4 May 2006) of the Law on State Social Insurance with the Constitution. It requests an investigation into the compliance of Article 2 of the Law on State Social Insurance Pensions with the Constitution and, alongside, indicates that the provisions entrenched in Article 4 of the Law on State Social Insurance and Article 2 of the Law on State Social Insurance Pensions “are in part overlapping, i.e. they virtually regulate the same legal relations”.

The following was established in Article 2 (wording of 4 November 2004) of the Law on State Social Insurance Pensions:

The following persons shall be covered, on a compulsory basis, by state social pension insurance:

1) the persons employed under employment contracts with legal or natural persons, notary candidates (assessors), the persons receiving remuneration for work and holding elected posts in elected organisations on the basis of membership as well as the persons receiving remuneration for work and appointed to region, town, district and local electoral and referendum commissions;

2) the state politicians, judges, state officials and civil servants indicated in the Law on the Remuneration of State Politicians, Judges and State Officials and the Law on the State Service (with the exception of the state servants indicated in Items 3 and 5 of this Paragraph) as well as the persons receiving remuneration for work and appointed by the Seimas, the Speaker of the Seimas, the President of the Republic or the Prime Minister;

3) officers of the system of the interior service, the Special Investigation Service and the Prisons Department under the Ministry of Justice of the Republic of Lithuania as well as the officials of the establishments and enterprises subordinate thereto;

4) servicemen in the professional military service of the system of national defence and the statutory servants in the civil national defence service at the Second Investigation Department under the Ministry of National Defence;

5) officers of the State Security Department system;

6) unemployed spouses of civil servants and servicemen in the professional military service who are not in the old-age retirement group—during a period when they reside abroad together with a state servant or a serviceman in the professional military service who works or fulfils military service at a diplomatic mission, consular post of the Republic of Lithuania or mission of the Republic of Lithuania at an international organisation;

7) the servicemen fulfilling mandatory initial military service in the armed forces of the Republic of Lithuania and servicemen fulfilling alternative national defence service;

8) owners of individual enterprises, members of general partnerships, members of limited partnerships as well as the persons who are engaged in individual activities as defined on the Law on Personal Income Tax, with the exception of the individual activities exercised under a business certificate;

9) the persons engaged in individual activities and holding a business certificate;

10) at the choice of a family, a mother (adoptive mother) or a father (adoptive father) who actually raises a child or a child’s guardian raising a child under 3 years of age;

12) clergymen of traditional and other religious communities and associations recognised by the State as well as the nuns and monks working only in a convent and monastery;

13) one of the parents (adoptive parents) of a person of complete disability, where the parent is not in the old-age retirement group, or a person who has been declared, in accordance with the established procedure, a guardian or custodian of the completely disabled person and who nurses the said person at home.

The persons indicated in Item 7 as well as Items 10–12 of Paragraph 1 of this Article shall be covered, on a compulsory basis, by state social pension insurance with state funds in accordance with the procedure laid down by the Government of the Republic of Lithuania or an institution authorised by it. The persons indicated in Item 13 of Paragraph 1 of this Article shall be insured, on a compulsory basis, with state funds only where they do not receive a state social insurance pension, state pension, social assistance pension, social pension or social assistance pension for the nursing of invalids at home to which they are entitled.

Other persons may be covered by state social pension insurance on a voluntary basis at the administration establishments of the State Social Insurance Fund effecting this insurance in accordance with the procedure laid down by the Government.”

7. Article 2 (wording of 4 November 2004) of the Law on State Social Insurance Pensions was amended more than once, but Item 8 of Paragraph 1 of the said article, wherein the group of self-employed persons was established, has not been amended or supplemented.

Article 2 (wordings of 4 November 2004, 19 May 2005, and 17 November 2005) of the Law on State Social Insurance Pensions, whose compliance (to the corresponding extent) with the Constitution is impugned by the petitioner, established previously and establishes at present the groups of persons who are covered by state pension social insurance, but not the exceptions when it is allowed not to pay social insurance contributions (the exceptions when it is allowed not to pay social insurance contributions are established, as mentioned before, in Article 8 (wording of 4 November 2004 with subsequent amendments and/or supplements) of the Law on State Social Insurance). The petitioner does not impugn the fact that certain groups of persons, inter alia, groups of self-employed persons, which are covered on a compulsory basis by state pension social insurance under the Law on State Social Insurance Pensions (wording of 4 November 2004 with subsequent amendments and supplements), in general should not be covered by state social pension insurance. The petitioner impugns something which, according to the petitioner, does not exist in this article, but which, in the opinion of the petitioner, should have been established.

8. The Constitutional Court has held that in the cases when the petitioner impugns the fact that the law or another impugned legal act (part thereof) indicated by the petitioner has not established certain legal regulation, but the said legal regulation under the Constitution (and if a substatutory legal act (part thereof) of the Seimas, the Government and the President of the Republic is being impugned, then also under the laws) need not be established in that particular impugned legal act (part thereof), the Constitutional Court holds that in the case on the petition of the petitioner a matter of investigation is absent (the Constitutional Court’s decisions of 6 May 2003, 13 May 2003, its ruling of 13 December 2004, and its decision of 8 August 2006).

It has been held in this decision that the relations (where self-employed persons (save those engaged in individual activities under business certificates) are allowed not to pay social insurance contributions, when they are covered by social insurance in a compulsory manner under laws of the Republic of Lithuania) which, according to the petitioner, are not regulated in Article 4 (wordings of 4 November 2004, 19 May 2005, 17 November 2005, 23 December 2005, and 4 May 2006) of the Law on State Social Insurance, and the non-regulation of these relations, according to the petitioner, is a legal gap prohibited by the Constitution, i.e. it is this that the Constitutional Court is requested to investigate, are regulated to the corresponding extent in Item 6 of Paragraph 2 of Article 8 (wording of 4 November 2004 with subsequent amendments and/or supplements) of the said law.

It needs to be held that there are not any preconditions for a statement that the exception where self-employed persons (save those engaged in individual activities under business certificates), when they have insured income while working under an employment contract, are allowed not to pay social insurance contributions for reception of the main part of the pension (basic pension) must be established, under the Constitution, precisely in Article 4 (wordings of 4 November 2004, 19 May 2005, 17 November 2005, 23 December 2005, and 4 May 2006) of the Law on State Social Insurance and Article 2 (wordings of 4 November 2004, 19 May 2005 and 17 November 2005) of the Law on State Social Insurance Pensions, which are impugned by the petitioner.

9. Having held that the legal regulation (which was specified by the petitioner in his petition and which, according to him, was not established), under the Constitution, does not have to be established precisely in Article 4 (wordings of 4 November 2004, 19 May 2005, 17 November 2005, 23 December 2005, and 4 May 2006) of the Law on State Social Insurance and Article 2 (wordings of 4 November 2004, 19 May 2005 and 17 November 2005) of the Law on State Social Insurance Pensions, and that the legal regulation (the legal gap pointed out by the petitioner) to some extent is established in Article 8 (wordings of 4 November 2004, 19 May 2005, 17 November 2005, 23 December 2005, 3 April 2007, and 20 December 2007) of the Law on State Social Insurance, it should be that a matter of investigation is absent in the petition of the petitioner.

The fact that a matter of investigation is absent in the petition of the petitioner means that the petition does not fall under the jurisdiction of the Constitutional Court (Constitutional Court decisions of 6 May 2003, 13 May 2003, ruling of 13 May 2004, decision of 8 August 2006).

It has also been held in this decision that the petition of the Vilnius Regional Administrative Court, the petitioner, requesting an investigation into the compliance (to the extent specified by the petitioner) of Article 4 (wording of 4 November 2004 with subsequent amendments and/or supplements) of the Law on State Social Insurance with the Constitution, is grounded on the reasoning other than that explicitly pointed out by the petitioner, thus, from this standpoint this request of the petitioner is fictitious. Under such circumstances, this request of the petitioner should be regarded as one not falling within the jurisdiction of the Constitutional Court.

Under Item 2 of Paragraph 1 of Article 69 of the Constitution, by a decision, the Constitutional Court shall refuse to consider petitions to investigate the compliance of a legal act with the Constitution if the consideration of the petition does not fall under the jurisdiction of the Constitutional Court.

10. Taking account of the arguments set forth, it should be held that there are grounds to refuse to consider the petition of the Vilnius Regional Administrative Court, the petitioner, requesting an investigation into whether Article 4 (wordings of 4 November 2004, 19 May 2005, 17 November 2005, 23 December 2005, and 4 May 2006) of the Law on State Social Insurance and Article 2 (wordings of 4 November 2004, 19 May 2005 and 17 November 2005) of the Law on State Social Insurance Pensions, both to the extent that, according to the petitioner, it is not prescribed that a person who works in several places of employment, and who, during the accounting period, has paid the contribution for reception of the main part of the pension (basic pension) from the income received in a concrete place of employment, does not have to pay the contributions for the same accounting period for reception of the main part of the pension (basic pension) from the income received in the other places of employment, are not in conflict with Paragraph 1 of Article 23, Paragraph 1 of Article 29 of the Constitution, the provision of Article 52 thereof that the state shall guarantee to citizens the right to receive the old age pension, and with the constitutional principles of justice and a state under the rule of law.

III

1. It needs to be noted that the Constitutional Court has already considered the compliance of the corresponding articles of the Law on State Social Insurance, inter alia, Paragraph 4 (which contained an exception when self-employed persons were allowed not to pay social insurance contributions) of Article 34 (wording of 4 July 2002) and Paragraph 2 of Article 8 (wording of 4 November 2004) thereof, with the Constitution.

On 26 September 2007, the Constitutional Court adopted the Ruling “On the Compliance of Paragraph 3 of Article 4 (wording of 4 November 2004), Paragraph 2 of Article 8 (wording of 4 November 2004) and Paragraphs 3 and 4 (wordings of 4 July 2002 and 7 October 2003) of Article 34 of the Republic of Lithuania’s Law on State Social Insurance with the Constitution of the Republic of Lithuania”, in which it recognised, inter alia, that the provision “it is permitted that the state social insurance contributions <…> be not paid (and this period will not be included in the state social insurance period) only in the cases when the annual amount of the income of the owners of individual (personal) enterprises, tenants of individual (personal) enterprises, advocates, assistants of advocates, members of general partnerships, actual members of commandite partnerships, calculated on the taxed income that is calculated under the Law on Income Tax and by subtracting the amount of the income tax of the tax year, while the annual amount of the income of notaries, calculated on the taxed income that is calculated on the basis of the Provisional Law on Income Tax of Natural Persons, by subtracting the tax amount of the income tax of natural persons of the tax year, is smaller than 12 minimum monthly salaries, and the said persons are: <…> (7) insured by state social insurance under laws of the Republic of Lithuania” of Paragraph 4 (wording of 4 July 2002) of Article 34 of the Law on State Social Insurance and the provision “the persons indicated in Paragraph 3 of Article 4 of this Law shall be allowed not to pay social insurance contributions (this period will not be included in social insurance period) only where the annual amount of income of these persons as calculated by deducting the amount of (personal) income tax for the tax year from the taxable (personal) income calculated under the Law on Income Tax (the Law on Personal Income Tax) is less than the amount of 12 minimum monthly salaries and these persons: (1) receive the social insurance old age or social insurance work disability pension as awarded under the Law on State Social Insurance Pensions” of Paragraph 2 of Article 8 (wording of 4 November 2004) of the same law were not in conflict with the Constitution.

The legal regulation, which was investigated by the Constitutional Court and which was consolidated in the provision of Paragraph 2 of Article 8 (wording of 4 November 2004) of the Law on Social Insurance, whereby self-employed persons (with the exception of the persons engaged in individual activities under business certificates) are allowed not to pay social insurance contributions only in one case, i.e. when their income from individual activity was less than the amount of 12 minimum monthly salaries (computed in the manner established in the law), was ruled to be not in conflict with the Constitution and is valid at present.

2. It has been mentioned that Paragraph 2 of Article 8 (wording of 4 November 2004) of the Law on State Social Insurance provides, inter alia, that “the persons indicated in Paragraph 3 of Article 4 of this Law shall be allowed not to pay social insurance contributions (this period will not be included in social insurance record) only where the annual aggregate amount of income of these persons as calculated by deducting the aggregate amount of income (personal income) tax for the tax year from the taxable income (personal income) calculated under the Law on Income Tax (the Law on Personal Income Tax) is less than the amount of 12 minimum monthly salaries and these persons <…> are compulsorily covered by social insurance under laws of the Republic of Lithuania”.

3. If one compares the provision entrenched in Paragraph 2 of Article 8 (wording of 4 November 2004 with subsequent amendments and supplements) of the Law on State Social Insurance (whereby the duty of a certain self-employed person (with the exception of the persons engaged in individual activities under business certificates) to pay state social insurance contributions (inter alia, for the reception of the main and supplementary parts of a pension) depends on the size of the income insured by state social insurance and, in case he is in a certain legal situation, it depends on the fact whether he met one or several conditions specified in Paragraph 2 of Article 8 (wording of 4 November 2004 with subsequent amendments and supplements) of the Law on State Social Insurance), about which the Vilnius Regional Administrative Court, the petitioner, keeps silent, with the provision entrenched in Paragraph 4 of Article 34 (wording of 4 July 2002) of the Law on State Social Insurance, which was investigated by the Constitutional Court, it is clear that these both provisions have entrenched an analogous principle when it is allowed not to pay social insurance contributions. Both, under the legal regulation which was in force earlier, and that which is in force at present, self-employed persons (with the exception of the persons engaged in individual activities under business certificates) are allowed not to pay social insurance contributions (for reception of the main and supplementary parts of a pension) only in case where the annual amount of the income of these persons (which is computed in the manner established in the law) is smaller than 12 minimum monthly salaries, when they are in a certain legal situation, i.e. they meet one or several conditions specified in the law, inter alia, whether they are covered by social insurance in a compulsory manner under laws of the Republic of Lithuania.

4. In this context, it also needs to be mentioned that the petitioner, while impugning the compliance of Article 4 (wordings of 4 November 2004, 19 May 2005, 17 November 2005, 23 December 2005, and 4 May 2006) of the Law on State Social Insurance with the Constitution, refers, inter alia, to various acts of the Constitutional Court in which the official constitutional doctrine regarding social security was formulated, he points out some fragments of this doctrine, however, he does not take account of the provisions, which are of utmost importance in the context of the considered petition and which were formulated in the Constitutional Court’s ruling of 26 September 2007, as, for instance:

by taking into account, inter alia, the constitutional principle of solidarity, the legal regulation should create preconditions for distributing the corresponding burden that has fallen upon the state among members of society. The duty of the person to pay state social insurance contributions is linked with reception of insured income from active economic activities—from employment relations or individual activity—and such a duty arises after one starts to work provided from the corresponding economic activities the insured income provided for in the law is received.

the main part of the state social insurance old age pension is the same to all recipients of pensions, who have the state social insurance pension period, which is established by law and which is necessary for the old age pension: the main part of the state social insurance old age pension performs the function of redistribution of income or that of equalising the sizes of pensions, it permits implementing the solidarity principle, while the supplementary part of the state social insurance old age pension depends on the state social insurance period of the person and the income from which state social insurance contributions were paid; the purpose of this part of the pension is to relate the income receive by the person at his old age with his former income from work;

while the duty is established to working persons (those who pursue active economic activities) to pay state social insurance contributions, various conditions are possible, which determine the emergence of this duty, as well as various criteria defining these conditions are possible. It goes without saying, it is also possible to relate the payment of state social insurance contributions with the fact that the person receives the insured income and it is possible to establish, by means of a law, the corresponding minimum size of such income; this size can also be equal to the minimum monthly salary.

In this context it needs to be mentioned that the petitioner himself makes reference to the constitutional doctrine provision “there are two groups of working persons: those who must pay state social insurance contributions and those who are exempted from state social insurance contributions. These persons are grouped on the objective basis, which is the size of the received insured income. Such grouping neither discriminates anyone, nor establishes any privileges”, upon which the Constitutional Court grounded, inter alia, the conformity of the provision of the law, whereby self-employed persons (with the exception of the persons engaged in individual activities under business certificates), who have insured income, are allowed not to pay social insurance contributions only in one case established by law, where the annual amount of the income is smaller than 12 minimum monthly salaries, with the Constitution.

Conforming to Paragraphs 3 and 4 of Article 22, Article 28, Item 2 of Paragraph 1 of Article 69, and Paragraph 2 of Article 69 of the Law on the Constitutional Court of the Republic of Lithuania, the Constitutional Court of the Republic of Lithuania adopts the following

decision:

To refuse to accept the petition of the Vilnius Regional Administrative Court, the petitioner, requesting an investigation into whether Article 4 (wordings of 4 November 2004, 19 May 2005, 17 November 2005, 23 December 2005, and 4 May 2006) of the Republic of Lithuania’s Law on State Social Insurance and Article 2 (wordings of 4 November 2004, 19 May 2005 and 17 November 2005) of the Republic of Lithuania’s Law on State Social Insurance Pensions, both to the extent that, according to the petitioner, it is not prescribed that a person who works in several places of employment, and who, during the accounting period, has paid the contribution for reception of the main part of the pension (basic pension) from the income received in a concrete place of employment, does not have to pay the contributions for the same accounting period for reception of the main part of the pension (basic pension) from the income received in the other places of employment, are not in conflict with Paragraph 1 of Article 23, Paragraph 1 of Article 29 of the Constitution of the Republic of Lithuania, the provision of Article 52 thereof that the state shall guarantee to citizens the right to receive the old age pension, and with the constitutional principles of justice and a state under the rule of law.

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

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

Justices of the Constitutional Court: Armanas Abramavičius
                                                                      Toma Birmontienė
                                                                      Pranas Kuconis
                                                                      Kęstutis Lapinskas
                                                                      Zenonas Namavičius
                                                                      Ramutė Ruškytė
                                                                      Egidijus Šileikis
                                                                      Algirdas Taminskas
                                                                      Romualdas Kęstutis Urbaitis