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On refusing to consider a petition

 

THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

DECISION

ON THE PETITION OF A GROUP OF MEMBERS OF THE SEIMAS OF THE REPUBLIC OF LITHUANIA, THE PETITIONER, REQUESTING AN INVESTIGATION INTO THE COMPLIANCE OF PARAGRAPH 2 OF ARTICLE 5 THE REPUBLIC OF LITHUANIA’S LAW ON THE LIQUEFIED NATURAL GAS TERMINAL WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA

 

15 April 2015, No. KT12-S6/2015

Vilnius

 

The Constitutional Court of the Republic of Lithuania, composed of the Justices of the Constitutional Court: Elvyra Baltutytė, Vytautas Greičius, Danutė Jočienė, Pranas Kuconis, Gediminas Mesonis, Vytas Milius, Egidijus Šileikis, Algirdas Taminskas, and Dainius Žalimas

The court reporter—Daiva Pitrėnaitė

The Constitutional Court of the Republic of Lithuania, in its procedural sitting, considered the petition (No. 1B-4/2015) of a group of members of the Seimas, the petitioner, requesting an investigation into the compliance of Paragraph 2 of Article 5 of the Republic of Lithuania’s Law on the Liquefied Natural Gas Terminal with the Constitution of the Republic of Lithuania.

The Constitutional Court

has established:

On 30 March 2015, the Constitutional Court received the petition of a group of members of the Seimas, the petitioner, requesting an investigation into “whether the legal regulation established in Paragraph 2 of Article 5 of the Law on the Liquefied Natural Gas Terminal (wording XI-2053, Official Gazette Valstybės žinios, 19-06-2012, No. 68-3466 and wording XII-426, 27-06-2013, Official Gazette Valstybės žinios, 2013, No. 76-3842), by consolidating an obligatory payment without establishing its all essential elements, is not in conflict with the constitutional principle of a state under the rule of law, the constitutional principle of the separation of powers, Paragraph 2 of Article 5 of the Constitution, Item 15 of Article 67 of the Constitution and Paragraphs 2 and 3 of Article 127 of the Constitution, as well as Articles 23 and 46 of the Constitution and Article 29 of the Constitution”.

The Constitutional Court

holds that:

1. A group of members of the Seimas, the petitioner, requests an investigation into the compliance of Paragraph 2 (wordings of 12 June 2012 and 27 June 2013) of Article 5 of the Law on the Liquefied Natural Gas Terminal (hereinafter referred to as the LNG Terminal Law) with Paragraph 2 of Article 5, Articles 23, 29, 46, Item 15 of Article 67, and Paragraphs 2 and 3 of Article 127 of the Constitution and with the constitutional principles of a state under the rule of law and the separation of powers.

2. On 3 April 2015, in constitutional justice case No. 23/2012-38/2014-54/2014, the Constitutional Court passed the Ruling (No. KT10-N6/2015) “On the Compliance of Certain Provisions of the Republic of Lithuania’s Law on the Liquefied Natural Gas Terminal (Wording of 12 June 2012) and the Compliance of the Resolution of the Government of the Republic of Lithuania (No. 199) “On the Implementation of the Republic of Lithuania’s Law on the Liquefied Natural Gas Terminal” of 15 February 2012 (Wording of 11 July 2012) with the Constitution of the Republic of Lithuania” (hereinafter referred to as the Constitutional Court’s ruling of 3 April 2015). The Constitutional Court’s ruling of 3 April 2015 came into force on the same day upon its publication in the Register of Legal Acts (Register of Legal Acts, 03-04-2015, No. 5147).

3. In the constitutional justice case in which the Constitutional Court’s ruling of 3 April 2015 was adopted, the Constitutional Court investigated, subsequent to the petitions of the petitioners—the Vilnius Regional Administrative Court and the Court of Appeal of Lithuania, whether, inter alia, Paragraph 2 (wording of 12 June 2012) of Article 5 of the LNG Terminal Law had not been in conflict with Paragraph 2 of Article 5, Item 15 of Article 67, and Paragraph 3 of Article 127 of the Constitution and with the constitutional principle of the separation of powers.

Having investigated the compliance of Paragraph 2 (wording of 12 June 2012) of Article 5 of the LNG Terminal Law with the said provisions of the Constitution, in the same ruling, the Constitutional Court recognised that this paragraph had not been in conflict with the Constitution (Item 2 of the operative part).

The Constitutional Court has held on more than one occasion that, in the cases where the Constitutional Court is investigating, subsequent to the petition of a petitioner, whether the impugned legal act (part thereof) is not in conflict with the articles (parts thereof) of the Constitution indicated by the petitioner, the Constitutional Court is at the same time investigating whether that particular legal act (part thereof) is not in conflict with the Constitution—an integral and harmonious system (inter alia, the Constitutional Court’s rulings of 24 December 2002 and 30 May 2003).

Thus, upon the recognition that Paragraph 2 (wording of 12 June 2012) of Article 5 of the LNG Terminal Law had not been in conflict with the Constitution as an integral system, and due to the fact that the Constitutional Court’s ruling of 3 April 2015, which is final and not subject to appeal, is in force, it is impossible to raise the question about the compliance of the said legal norm with the Constitution.

4. It should be noted, among other things, that the petitioner also requests an investigation into the compliance of Paragraph 2 (wording of 12 June 2012) of Article 5 of the LNG Terminal Law with the provisions of the Constitution (i.e., with Articles 29 and 46 of the Constitution and Paragraph 2 of Article 127 thereof, as well as with the constitutional principle of a state under the rule of law), regarding which the Constitutional Court’s ruling of 3 April 2015 did not pronounce expressis verbis that Paragraph 2 (wording of 12 June 2012) of Article 5 of the LNG Terminal Law had been in compliance with them (i.e., with Articles 29 and 46 of the Constitution and Paragraph 2 of Article 127 thereof, as well as with the constitutional principle of a state under the rule of law).

4.1. In impugning the compliance of Paragraph 2 (wording of 12 June 2012) of Article 5 of the LNG Terminal Law with Article 29 of the Constitution, the petitioner asserts that, even though the liquefied natural gas terminal (hereinafter referred to as the LNG Terminal) ensures the energy safety of all consumers of Lithuania, the obligation to pay the so-called LNG Supplement is established only to users of the system of natural-gas transmission. Thus, the legislature has violated the duty to establish the same (non-differentiated) legal regulation with respect to persons who are in the same situation, when, among such persons, there are not any differences of such a character that any unequal treatment of such persons would be objectively justified. The petitioner takes the funding of the national television and radio broadcaster, the armed forces, the police, as an example and asserts that the costs of their support are distributed among the entire society, i.e. these institutions are financed from the state budget. The example given by the petitioner allows making the assumption that, according to the petitioner, the LNG Supplement is a tax which, by enlarging the circle of the payers of this tax, should be, even though is not, collected for the state budget, therefore, there are two groups of persons that are in the same situation but are treated differently: “all consumers of Lithuania” and “users of the system of natural-gas transmission”.

Thus, the petitioner virtually substantiates its doubts about the compliance of Paragraph 2 (wording of 12 June 2012) of Article 5 of the LNG Terminal Law with Article 29 of the Constitution by the fact that, in its opinion, the LNG Supplement is a tax, whilst the petitioner’s general-character statement that the situation of “all consumers of Lithuania” and “users of the system of natural-gas transmission” is the same was presented without an assessment of the difference in the legal situation between these persons.

4.2. In impugning the compliance of Paragraph 2 (wording of 12 June 2012) of Article 5 of the LNG Terminal Law with Article 46 of the Constitution, the petitioner asserts that, by means of the legal regulation consolidated in this legal provision, “not only the property of the payers of the LNG Supplement is taken over for the needs of society (violation of Article 23 of the Constitution), but also a limitation is imposed on the freedom of their economic activity”.

Thus, the doubts of the petitioner about the compliance of Paragraph 2 of Article 5 of the LNG Terminal Law with Article 46 of the Constitution are virtually related to its opinion that, by means of the LNG Supplement, the property of the payers of the LNG Supplement is taken over for no consideration.

4.3. In impugning the compliance of Paragraph 2 (wording of 12 June 2012) of Article 5 of the LNG Terminal Law with Paragraph 2 of Article 127 of the Constitution, the petitioner presents the same arguments as in the case of its doubts about the compliance of Paragraph 2 of Article 5 of the same law with Item 15 of Article 67 and Paragraph 3 of Article 127 of the Constitution.

4.4. In impugning the compliance of Paragraph 2 (wording of 12 June 2012) of Article 5 of the LNG Terminal Law with the constitutional principle of a state under the rule of law, the petitioner asserts that the legal regulation consolidated therein is undetermined and unclear, this legal regulation establishes an unlimited right to regulate taxes by means of substatutory legal acts and consolidates the right of the recipient of the funds of the so-called LNG Supplement to exert influence on the size of the LNG Supplement as a tax or another obligatory payment.

Thus, the petitioner virtually substantiates its doubts about the compliance of Paragraph 2 of Article 5 of the LNG Terminal Law with the constitutional principle of a state under the rule of law by its opinion that the LNG Supplement is a tax.

4.5. To sum up the aforesaid statements made by the petitioner, it should be noted that the petitioner, in impugning the compliance of Paragraph 2 (wording of 12 June 2012) of Article 5 of the LNG Terminal Law with Articles 29 and 46 of the Constitution, Paragraph 2 of Article 127 thereof, and with the constitutional principle of a state under the rule of law, takes the position that, on the one hand, the LNG Supplement is a tax, and, on the other hand, that the property of the payers of the LNG Supplement is taken over for the needs of society by means of the said LNG Supplement.

In this context, it should be noted that, in its ruling of 3 April 2015, the Constitutional Court held that the so-called LNG Supplement should not be regarded as a state tax or another obligatory payment within the meaning of the Constitution, and that, in itself, the duty to pay the LNG Supplement may not be regarded as a limitation on the rights of ownership, let alone as taking over the property for the needs of society, thus, such a duty may not be regarded as a violation of Article 23 of the Constitution, either.

4.6. Thus, even though the petitioner also requests an investigation into the compliance of Paragraph 2 (wording of 12 June 2012) of Article 5 of the LNG Terminal Law with the provisions of the Constitution (i.e., with Articles 29 and 46 of the Constitution and Paragraph 2 of Article 127 thereof, as well as with the constitutional principle of a state under the rule of law), regarding which the Constitutional Court’s ruling of 3 April 2015 did not pronounce expressis verbis that Paragraph 2 of Article 5 of the LNG Terminal Law had been in compliance with them (i.e., with Articles 29 and 46 of the Constitution and Paragraph 2 of Article 127 thereof, as well as with the constitutional principle of a state under the rule of law), it is clear from the above-mentioned statements of the petition of the petitioner that the petitioner requests an investigation into whether Paragraph 2 of Article 5 of the LNG Terminal Law was not in conflict with the Constitution, when the constitutionality of the said paragraph has already been investigated by the Constitutional Court and the aforesaid Constitutional Court’s ruling of 3 April 2015 adopted on this issue, recognising that the said legal norm had not been in conflict with the Constitution, is in force.

4.7. Under Item 3 of Paragraph 1 of Article 69 of the Law on the Constitutional Court, by means of its decision, the Constitutional Court refuses to consider petitions requesting an investigation into the compliance of a legal act with the Constitution if the compliance of the legal act with the Constitution specified in the petition has already been investigated by the Constitutional Court and the ruling on this issue given by the Constitutional Court is still in force.

4.8. In view of this fact, the Constitutional Court must refuse to consider the petition of a group of members of the Seimas, the petitioner, requesting an investigation into the compliance of Paragraph 2 (wording of 12 June 2012) of Article 5 of the LNG Terminal Law with Paragraph 2 of Article 5, Articles 23, 29, 46, Item 15 of Article 67, and Paragraphs 2 and 3 of Article 127 of the Constitution and with the constitutional principles of a state under the rule of law and the separation of powers.

5. A group of members of the Seimas, the petitioner, also requests an investigation into the compliance of Paragraph 2 (set forth in its wording of 27 June 2013) of Article 5 of the LNG Terminal Law with Paragraph 2 of Article 5, Articles 23, 29, 46, Item 15 of Article 67, and Paragraphs 2 and 3 of Article 127 of the Constitution and with the constitutional principles of a state under the rule of law and the separation of powers.

5.1. Thus, the petitioner requests an investigation into the compliance of Paragraph 2 (wording of 27 June 2013) of Article 5 of the LNG Terminal Law with the same provisions of the Constitution as in the case when it impugns the constitutionality of Paragraph 2 (wording of 12 June 2012) of Article 5 of the LNG Terminal Law. It should be noted that the petitioner presents the same arguments and statements but does not specify any new aspects of the legal regulation consolidated in Paragraph 2 (wording of 27 June 2013) of Article 5 of the amended LNG Terminal Law in comparison with the aspects of this legal regulation that were under investigation in the constitutional justice case in which the aforesaid Constitutional Court’s ruling of 3 April 2015 was adopted.

In this context, the following provisions of the reasoning part of the Constitutional Court’s ruling of 3 April 2015 should be mentioned:

In comparing the legal regulation established in Paragraph 2 (wording of 27 June 2013) of Article 5 of the LNG Terminal Law with that established in Paragraph 2 (wording of 12 June 2012) of Article 5 of the same law in the aspects that are important in the constitutional justice case at issue, it should be noted that the content of the legal regulation established in the said paragraph insofar as it consolidates the so-called LNG Supplement as one of the sources for financing the project of the LNG Terminal, regardless of the partially amended terminology, has remained unchanged. It should also be noted that <…> the so-called LNG Supplement was (and is) a constituent part of the state-regulated price for natural gas. It should be mentioned that, after the <…> amendments had been made, the purpose of the LNG Supplement remained the same.”

5.2. Thus, the legal regulation consolidated in Paragraph 2 (wording of 27 June 2013) of Article 5 of the LNG Terminal Law, insofar as its constitutionality is impugned in the petition of a group of members of the Seimas, the petitioner, is identical to one assessed by the Constitutional Court in its ruling of 3 April 2015; consequently, the Constitutional Court had already assessed the compliance of the said legal regulation with the Constitution in that regard.

Under Item 3 of Paragraph 1 of Article 69 of the Law on the Constitutional Court, by means of its decision, the Constitutional Court refuses to consider petitions requesting an investigation into the compliance of a legal act with the Constitution if the compliance of the legal act with the Constitution specified in the petition has already been investigated by the Constitutional Court and the ruling on this issue given by the Constitutional Court is still in force.

5.3. In view of this fact, the Constitutional Court must refuse to consider the petition of a group of members of the Seimas, the petitioner, requesting an investigation into the compliance of Paragraph 2 (wording of 27 June 2013) of Article 5 of the LNG Terminal Law with Paragraph 2 of Article 5, Articles 23, 29, 46, Item 15 of Article 67, and Paragraphs 2 and 3 of Article 127 of the Constitution and with the constitutional principles of a state under the rule of law and the separation of powers.

Conforming to Paragraphs 3 and 4 of Article 22, Article 28, Item 2 of Paragraph 1 and Paragraph 3 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 consider the petition (No. 1B-4/2015) of a group of members of the Seimas of the Republic of Lithuania, the petitioner, requesting an investigation into whether the legal regulation established in Paragraph 2 of Article 5 of the Republic of Lithuania’s Law on the Liquefied Natural Gas Terminal (wordings of 12 June 2012 and 27 June 2013), “by consolidating an obligatory payment without establishing its all essential elements” is (was) not in conflict with Paragraph 2 of Article 5, Articles 23, 29, 46, Item 15 of Article 67, and Paragraphs 2 and 3 of Article 127 of the Constitution of the Republic of Lithuania and with the constitutional principles of a state under the rule of law and the separation of powers.

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

Justices of the Constitutional Court:       Elvyra Baltutytė
                                                                            Vytautas Greičius

                                                                            Danutė Jočienė

                                                                            Pranas Kuconis

                                                              Gediminas Mesonis

                                                              Vytas Milius

                                                              Egidijus Šileikis

                                                              Algirdas Taminskas

                                                              Dainius Žalimas