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On returning a petition

 

THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

DECISION

ON RETURNING THE PETITION OF THE VILNIUS CITY LOCAL COURT, THE PETITIONER, REQUESTING AN INVESTIGATION INTO THE COMPLIANCE OF THE PROVISIONS OF LEGAL ACTS REGULATING THE PROVISION OF, AND THE ADMINISTRATION OF FUNDS FOR, SERVICES OF PUBLIC INTEREST IN THE ELECTRICITY SECTOR WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA AND LAWS

 

7 April 2015, No. KT11-S5/2015

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 a petition (No. 1B-2/2015) of the Vilnius City Local Court, the petitioner.

The Constitutional Court

has established:

The Constitutional Court has received the petition of the Vilnius City Local Court “requesting an investigation into:

1) whether Item 3.3 (Item 23.4 of the Description of the Procedure for Administering Funds for Services of Public Interest in the Electricity Sector) of the Resolution of the Government of the Republic of Lithuania (No. 1215) ‘On Amending the Resolution of the Government of the Republic of Lithuania (No. 1157) “On Approving the Description of the Procedure for Administering Funds for Services of Public Interest in the Electricity Sector” of 19 September 2012’ of 18 December 2013, insofar as, under this item, in cases where produced electricity quantities eligible for support are sold to non-public suppliers (the sale is carried out otherwise than on an exchange for a price lower than the market price), the producers specified in 7.2 of the Description of the Provision of Services of Public Interest are paid, from funds raised for services of public interest, the sum that is equal to the amount calculated by multiplying the electricity quantity supplied to the electricity grid by the difference between the electricity purchase price set by the Commission for a respective producer and the electricity market price determined for the given calendar year, rather than the weighted average value of the prices received by the producer for the sold electricity eligible for support, is not in conflict with Articles 29 and 46 of the Constitution of the Republic of Lithuania, Paragraph 2 of Article 32 of the Republic of Lithuania’s Law on the Heat Sector, and Paragraph 2 of Article 19 of the Republic of Lithuania’s Law on Energy;

2) whether Item 2.5 (Item 121.2 of the Description of the Procedure for the Provision of Services of Public Interest in the Electricity Sector) of the Resolution of the Government of the Republic of Lithuania (No. 1216) ‘On Amending the Resolution of the Government of the Republic of Lithuania (No. 916) “On Approving the Description of the Procedure for the Provision of Services of Public Interest in the Electricity Sector” of 18 July 2012’ of 18 December 2013, insofar as this item does not provide for clear and unambiguous criteria as to which technical and/or technological reasons are considered sufficient to prove the ‘obligation to produce’, is not in conflict with Articles 29 and 46 of the Constitution of the Republic of Lithuania, Paragraph 2 of Article 32 of the Republic of Lithuania’s Law on the Heat Sector, and Paragraph 2 of Article 19 of the Republic of Lithuania’s Law on Energy;

3) whether Item 2.5 (Item 121.4 of the Description of the Procedure for the Provision of Services of Public Interest in the Electricity Sector) of the Resolution of the Government of the Republic of Lithuania (No. 1216) ‘On Amending the Resolution of the Government of the Republic of Lithuania (No. 916) “On Approving the Description of the Procedure for the Provision of Services of Public Interest in the Electricity Sector” of 18 July 2012’ of 18 December 2013, insofar as this item does not provide for clear and unambiguous criteria based on which the State Energy Inspectorate decides on the validity of the technical and/or technological reasons indicated by the producer, as well as on the necessity for the production mode aimed at maintaining electricity production in the cogeneration mode efficient, is not in conflict with Articles 29 and 46 of the Constitution of the Republic of Lithuania, Paragraph 2 of Article 32 of the Republic of Lithuania’s Law on the Heat Sector, and Paragraph 2 of Article 19 of the Republic of Lithuania’s Law on Energy”.

The Constitutional Court

holds that:

1. The Vilnius City Local Court, the petitioner, requests an investigation into whether:

whether Item 3.3 (Item 23.4 of the Description of the Procedure for Administering Funds for Services of Public Interest in the Electricity Sector) of the Government Resolution (No. 1215) “On Amending the Resolution of the Government of the Republic of Lithuania (No. 1157) ‘On Approving the Description of the Procedure for Administering Funds for Services of Public Interest in the Electricity Sector’ of 19 September 2012” of 18 December 2013 is not in conflict with the Constitution and the provisions of certain laws;

whether Item 2.5 (Items 121.2 and 121.4 of the Description of the Procedure for the Provision of Services of Public Interest in the Electricity Sector) of the Government Resolution (No. 1216) “On Amending the Resolution of the Government of the Republic of Lithuania (No. 916) ‘On Approving the Description of the Procedure for the Provision of Services of Public Interest in the Electricity Sector’ of 18 July 2012” of 18 December 2013 is (are) not in conflict with the Constitution and the provisions of certain laws.

Although the petitioner requests, to the indicated extent, an investigation into the indicated provisions of the resolutions amending the government resolutions on approving, respectively, the Description of the Procedure for Administering Funds for Services of Public Interest in the Electricity Sector (hereinafter also referred to as the Description of the Procedure for Administering Funds) and the Description of the Procedure for the Provision of Services of Public Interest in the Electricity Sector (hereinafter also referred to as the Description of the Procedure for the Provision of Services), the whole of the petition makes it clear that the petitioner, to the indicated extent, impugns namely the compliance of the respective provisions of the Description of the Procedure for Administering Funds and the Description of the Procedure for the Provision of Services, i.e. Item 23.4 (wording of 18 December 2013) of the Description of the Procedure for Administering Funds and Items 121.2 and 121.4 (wording of 18 December 2013) of the Description of the Procedure for the Provision of Services, with the Constitution and certain laws.

2. Under Item 5 of Paragraph 2 of Article 67 of the Law on the Constitutional Court of the Republic of Lithuania, a ruling of a court by means of which an application is made to the Constitutional Court must specify the legal arguments substantiating the opinion of the court on the conflict of a particular legal act with the Constitution.

The Constitutional Court has held on more than one occasion that the requirement stems from Item 5 of Paragraph 2 of Article 67 of the Law on the Constitutional Court that courts, when providing arguments in support of their opinion, expressed in their petition, on the conflict of a law or another legal act (part thereof) with the Constitution, may not limit themselves to general reasoning or general statements, or to the statement that the law or another legal act (part thereof), in their opinion, is in conflict with the Constitution; courts must clearly indicate which impugned articles (paragraphs, items thereof) of legal acts and to what extent, in their opinion, are in conflict with the Constitution, and must substantiate their position on the non-compliance of every impugned provision of a particular legal act (part thereof) by clearly formulated legal arguments (inter alia, the Constitutional Court’s rulings of 12 December 2005, 16 January 2006, and 17 January 2006, as well as its decisions of 17 January 2006, 5 July 2007, 12 September 2007, and 14 October 2008).

3. The Vilnius City Local Court, the petitioner, in the reasoning part of its petition, i.e. its ruling of 25 February 2015, by which this court suspended a civil case under its consideration and applied to the Constitutional Court for an investigation into the constitutionality of the provisions of certain legal acts, does not provide any arguments concerning the non-compliance of the provisions of the indicated legal acts, regulating the provision of, and the administration of funds for, services of public interest in the electricity sector, with the Constitution and laws. The petitioner indicates only the reasons due to which the legal regulation laid down in the specific items of the Description of the Procedure for Administering Funds and the Description of the Procedure for the Provision of Services is relevant to the civil case under the consideration by this court: according to the petitioner, provisions analogous to the legal regulation laid down in the aforementioned items impugned by the petitioner are also consolidated in a concrete contract that was concluded for the payment of funds for services of public interest and constitutes an object of the dispute in the civil case under consideration by the petitioner; however, the petitioner does not provide any arguments to substantiate the conflict of the impugned legal regulation with the articles of the Constitution indicated in the operative part of its ruling, as well as with the particular provisions of the Law on the Heat Sector and the Law on Energy.

It should be noted that the ruling of the Vilnius City Local Court, by which this court applied to the Constitutional Court, contains certain arguments concerning the compliance of the impugned legal regulation with the Constitution and with the indicated laws in the way these arguments were set out by the applicant in the civil case concerned in its application submitted to the Vilnius City Local Court for petitioning the Constitutional Court; however, the petitioner does not indicate whether it has approved all or part of these arguments, nor does it provide any reasoning why these arguments have been approved. In this context, consideration should be given to the circumstance that the mere fact that the petitioner—the court, in its petition filed with the Constitutional Court, fails to analyse and assess the arguments submitted by the parties to the case under its consideration concerning the constitutionality of the respective legal regulation, and limits itself to the general statement that it finds the doubts of the party to the case to be reasonable, constitutes a sufficient ground to return the petition, as it fails to comply with the requirements established in Item 5 of Paragraph 2 of Article 67 of the Law on the Constitutional Court.

4. In this context, it should also be noted that the arguments concerning the non-compliance of the impugned provisions of the legal acts, regulating the provision of, and the administration of funds for, services of public interest in the electricity sector, with the Constitution and laws, in the way these arguments were submitted to the Vilnius City Local Court, the petitioner, by the applicant in the civil case concerned in its application, satisfied by this court, for petitioning the Constitutional Court, may not be regarded, in the sense of Item 5 of Paragraph 2 of Article 67 of the Law on the Constitutional Court, as legal arguments substantiating the doubts of the petitioner regarding the conflict of any particular legal act with the Constitution and the indicated laws.

4.1. As mentioned before, the petitioner impugns, to the indicated extent, the compliance of Item 23.4 (wording of 18 December 2013) of the Description of the Procedure for Administering Funds and Items 121.2 and 121.4 (wording of 18 December 2013) of the Description of the Procedure for the Provision of Services with Articles 29 and 46 of the Constitution, as well as with the provisions of certain laws—Paragraph 2 of Article 32 of the Law on the Heat Sector and Paragraph 2 of Article 19 of the Law on Energy, which, according to the applicant in the civil case concerned, consolidate the principle of reimbursement for the essential costs borne by providers of services of public interest.

It should be noted that, although the petition contains certain reasoning concerning the violation of the constitutional principle of the protection of legitimate expectations, no request for an investigation into the compliance of the impugned legal regulation with this principle is formulated in the operative part of the petition.

It should also be noted that, as it is evident from the petition of the Vilnius City Local Court, the petitioner, and from the material of the civil case under its consideration, the petitioner has had doubts regarding the compliance of the indicated provisions with the Constitution and the particular laws only insofar as these provisions consolidate the legal regulation that governs the provision of, and the administration of funds for, services of public interest in the electricity sector and is applicable to electricity producers providing, specifically, the services of public interest indicated in Item 7.2 of the Description of the Procedure for the Provision of Services, i.e. producers generating electricity in the cogeneration mode in combined heat and power generation plants, when these plants supply heat to heating systems and allow of such amounts of primary energy savings obtained from the cogeneration of heat and electricity that combined heat and electricity generation can be considered efficient.

Thus, the petitioner, to the indicated extent, impugns the compliance, with the Constitution and certain laws, of the following:

Item 23.4 (wording of 18 December 2013) of the Description of the Procedure for Administering Funds, which consolidates the procedure for calculating the sum of funds payable, in the cases indicated in this description, to electricity producers providing, among other things, the services of public interest specified in Item 7.2 of the Description of the Procedure for the Provision of Services: the sum of payable funds for electricity generated and supplied to the electricity grid is equal to the amount calculated by multiplying the electricity quantity supplied to the grid by the difference between a fixed tariff set for a respective producer by the National Commission for Energy Control and Prices, or the electricity purchase price, and the average electricity market price for the preceding month, or the electricity market price determined for the given calendar year;

Item 121.2 (wording of 18 December 2013) of the Description of the Procedure for the Provision of Services, under which, among other things, in cases where a public supplier has a purchase-sale contract for the purchase of electricity eligible for support with, inter alia, electricity producers providing the services of public interest specified in Item 7.2 of the Description of the Procedure for the Provision of Services, and intends to purchase not the whole quantity of the electricity output established by the Government for a concrete electricity producer, the electricity amount refused to be purchased by the public supplier is regarded as an output eligible for support if the producers concerned, due to technical and/or technological reasons, were obliged to produce this amount, and the generated electricity meets high efficiency requirements;

Item 121.4 (wording of 18 December 2013) of the Description of the Procedure for the Provision of Services, under which, among other things, the State Energy Inspectorate under the Ministry of Energy carries out a monthly verification of the technical and/or technological reasons, referred to, inter alia, in Item 121.2 of this description, after these reasons are submitted by the producers specified in Item 7.2 of this description, i.e. the State Energy Inspectorate verifies whether these reasons were objective and based on a useful heat demand, whether they indeed determined the need for a support-eligible output larger than the quantity purchased by the public supplier, as well as whether the mode of production was necessary to fulfil the requirement for electricity production in the cogeneration mode to be efficient.

4.2. The petition indicates the doubts of the applicant in the aforementioned civil case, expressed regarding the compliance of the impugned Item 23.4 (wording of 18 December 2013) of the Description of the Procedure for Administering Funds and Items 121.2 and 121.4 (wording of 18 December 2013) of the Description of the Procedure for the Provision of Services with the Constitution and the indicated laws; however, these doubts are not substantiated by separately provided arguments regarding the non-compliance of each impugned item with each of the indicated articles of the Constitution and each particular provision of the indicated laws; therefore, the provided arguments should be assessed collectively in this context.

4.2.1. It is indicated in the petition that, although the impugned legal regulation “grants the right to producers providing services of public interest to sell electricity eligible for support to a non-public supplier, in the event of such a sale (when electricity is sold not on an exchange and for a price lower than the market price), the funds paid by the JSC BALTPOOL for the services of public interest do not cover the essential costs borne by the producers (with the exception of the Lithuanian Power Plant), or these funds may even not be paid at all; this contradicts the constitutional obligation to ensure a favourable legal environment for such economic activity that, while serving the interests of the economic subject concerned, at the same time serves the general welfare of the nation, as well as meets the principle of the protection of legitimate expectations, the principle of covering the essential costs borne by producers in question, and the principle of the equality of rights”. These and other statements in the petition are substantiated by additionally providing calculations to show that, in certain cases, the sum of funds paid for the provided services of public interest does not cover the essential costs borne by the providers of these services.

In this context, it should be noted that, in the petition, Item 23.4 of the Description of the Procedure for Administering Funds, which consolidates the aforementioned procedure for calculating the sum of funds payable to electricity producers providing, inter alia, the services of public interest specified in Item 7.2 of the Description of the Procedure for the Provision of Services, is impugned insofar as it prescribes that the said producers are paid “the sum that is equal to the amount calculated by multiplying the electricity quantity supplied to the electricity grid by the difference between the electricity purchase price set by the Commission for a respective producer and the electricity market price determined for the given calendar year, rather than the weighted average value of the prices received by the producer for the sold electricity eligible for support”.

It should be noted that the aforementioned and other statements provided in the petition do not substantiated from the legal point of view that the indicated provisions of the Constitution, as well as those of the Law on Energy and the Law on the Heat Sector, give rise to precisely such requirements for the impugned legal regulation, establishing the calculation of the sum of funds payable to electricity producers providing certain services of public interest, as those indicated by the applicant in the civil case under consideration by the petitioner; nor do the provided statements prove that the consolidated procedure, as laid down by the impugned legal regulation, for calculating the sum of funds payable to electricity producers providing, inter alia, the services of public interest specified in Item 7.2 of the Description of the Procedure for the Provision of Services, is incompatible, and the more so in all cases, with the requirements that, according to the applicant in the civil case concerned, derive with respect to the impugned legal regulation from the indicated provisions of the Constitution, the Law on Energy, and the Law on the Heat Sector.

The petition contains no legal arguments as to why the Government, under the indicated provisions of the Constitution and the specific laws, is not allowed to establish such a procedure for calculating the sum of funds payable to electricity producers providing the aforementioned services of public interest according to which the sum of funds payable for electricity generated and supplied to the electricity grid is calculated by multiplying the electricity quantity supplied to the grid by the difference between a fixed tariff set for a respective producer by the National Commission for Energy Control and Prices, or the electricity purchase price, and the average electricity market price for the preceding month, or the electricity market price determined for the given calendar year. From the legal point of view, neither is it substantiated that, under the indicated provisions of the Constitution and the specific laws, the impugned procedure must be such that would require, as it is indicated in the petition, that the sum of funds in question be calculated by applying, among other things, the weighted average value of the prices received by the producer for the sold electricity eligible for support.

In this context, it should also be noted that, regardless of the doubts that one (or more than one) of the established concrete variables (inter alia, a fixed tariff set for a respective producer by the National Commission for Energy Control and Prices, the electricity purchase price, the electricity market price determined for the given calendar year), applicable at the time of filing the petition to calculate the sum of funds payable to electricity producers providing the services of public interest specified in Item 7.2 of the Description of the Procedure for the Provision of Services is (are) possibly such that the consolidation and application of this variable (these variables), as it is maintained, do not ensure that the essential costs borne by the providers of services of public interest are covered, these possible doubts may not be regarded as legal arguments substantiating the doubts regarding the compliance of the impugned legal regulation itself, under which the procedure in question is established, with the Constitution and the indicated laws.

4.2.2. In order to substantiate the conflict of the impugned legal regulation with Article 29 of the Constitution, it is pointed out in the petition that, although the impugned legal regulation equally regulates the activity of all electricity producers providing the services of public interest specified in Item 7.2 of the Description of the Procedure for the Provision of Services, nevertheless, compared to the conditions applied to the applicant in the civil case concerned, considerably more favourable conditions for paying funds for services of public interest have been applied to another electricity producer, and not to the applicant in the civil case concerned. In other words, according the applicant in the civil case, the legal regulation of its activity relevant in the context of the petition should be different from that as established and applied under the impugned provisions to other electricity producers providing the services of public interest specified in Item 7.2 of the Description of the Procedure for the Provision of Services.

In this context, it should be noted that the Constitutional Court has held on more than one occasion that the principle of the equality of all persons before the law would be violated if a certain group of persons addressed by a particular legal norm, compared to other addressees under the same norm, were treated differently, although there would be no differences of such a character or scope among these groups that could objectively justify this uneven treatment. However, no account is taken of these provisions of the official constitutional doctrine in the petition: the petition provides no legal arguments substantiating that the applicant in the civil case concerned, due to its activity or other peculiarities, should be singled out among other addressees of the impugned provisions, i.e. that the applicant should be treated in a different way compared to other electricity producers providing the services of public interest specified in Item 7.2 of the Description of the Procedure for the Provision of Services, and that its activity relevant in the context of the petition should, accordingly, be regulated in a different way compared to an analogous activity carried out by other electricity producers providing the services of public interest specified in Item 7.2 of the Description of the Procedure for the Provision of Services.

4.2.3. The compliance of Items 121.2 and 121.4 (wording of 18 December 2013) of the Description of the Procedure for the Provision of Services with the Constitution and the indicated laws is impugned also due to the fact that these items, according to the applicant in the civil case concerned, do not provide for clear and unambiguous criteria for determining the technical and/or technological reasons considered to be sufficient to prove that a particular electricity producer is under the obligation to produce electricity, nor the criteria based on which the State Energy Inspectorate could decide on the validity of the technical and/or technological reasons indicated by the producer, as well as on the necessity for the production mode aimed at maintaining electricity production in the cogeneration mode efficient, i.e. the said criteria should be laid down in the Description of the Procedure for the Provision of Services.

However, no arguments are provided not only why the indicated concrete criteria should be established on the whole, but also why these criteria should be laid down precisely in the indicated legal act. In addition, although the petition impugns, from the indicated aspect, the legal regulation laid down in the Description of the Procedure for the Provision of Services, among other things, it takes no account of the overall relevant legal regulation, inter alia, the provisions of the Description of the Procedure for Assessing Electricity Output Eligible for Support, which was approved by the Order of the Head of the State Energy Inspectorate under the Ministry of Energy (No. 1V-11) “On Approving the Description of the Procedure for Assessing Electricity Output Eligible for Support” of 14 February 2014 and was adopted for implementing, among other things, the requirements established by the impugned Item 121.4 of the Description of the Procedure for the Provision of Services. Thus, in this respect, no account is taken of the legal regulation laid down in the Description of the Procedure for Assessing Electricity Output Eligible for Support, and no consideration is given as to whether the aforementioned additional criteria should be consolidated precisely in this legal act, if these criteria are not, but should be, consolidated there.

4.3. Thus, the application for petitioning the Constitutional Court, which was submitted to the Vilnius City Local Court, the petitioner, by the applicant in the civil case concerned and which was satisfied by the Vilnius City Local Court, fails to provide legal arguments substantiating the position regarding the non-compliance of the impugned legal regulation, governing the provision of, and the administration of funds for, services of public interest in the electricity sector, with the Constitution and certain laws.

5. It also needs to be mentioned that, under Item 2 of Paragraph 3 of Article 67 of the Law on the Constitutional Court, when a court, by its ruling, applies to the Constitutional Court, a duplicate of the whole text of the impugned legal act must be attached to the ruling of the court; however, the petition under consideration fails to comply with this requirement.

6. It should be held that the petition of the Vilnius City Local Court, the petitioner, requesting, to the indicated extent, an investigation into the compliance of Item 23.4 (wording of 18 December 2013) of the Description of the Procedure for Administering Funds and Items 121.2 and 121.4 (wording of 18 December 2013) of the Description of the Procedure for the Provision of Services with Articles 29 and 46 of the Constitution, as well as with Paragraph 2 of Article 32 of the Law on the Heat Sector and Paragraph 2 of Article 19 of the Law on Energy, should be considered non-compliant with the requirements of Item 5 of Paragraph 2 and Item 2 of Paragraph 3 of Article 67 of the Law on the Constitutional Court.

Under Article 70 of the Law on the Constitutional Court, in cases where a petition (part thereof) fails to comply with the requirements set forth in Article 67 of the Law on the Constitutional Court, the petition is returned to the petitioner. The return of a petition does not take away the right of the petitioner to reapply to the Constitutional Court according to the general procedure once the deficiencies of the petition have been removed.

7. In view of what has been stated above, the conclusion should be drawn that there is a ground to return the petition to the Vilnius City Local Court, the petitioner, requesting, to the indicated extent, an investigation into the compliance of Item 23.4 (wording of 18 December 2013) of the Description of the Procedure for Administering Funds and Items 121.2 and 121.4 (wording of 18 December 2013) of the Description of the Procedure for the Provision of Services with Articles 29 and 46 of the Constitution, as well as with Paragraph 2 of Article 32 of the Law on the Heat Sector and Paragraph 2 of Article 19 of the Law on Energy.

Conforming to Paragraphs 3 and 4 of Article 22, Paragraph 2 of Article 25, Article 28, Item 5 of Paragraph 2 and Item 2 of Paragraph 3 of Article 67, and Article 70 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 return the petition to the Vilnius City Local Court, the petitioner, “requesting an investigation into:

1) whether Item 3.3 (Item 23.4 of the Description of the Procedure for Administering Funds for Services of Public Interest in the Electricity Sector) of the Resolution of the Government of the Republic of Lithuania (No. 1215) ‘On Amending the Resolution of the Government of the Republic of Lithuania (No. 1157) “On Approving the Description of the Procedure for Administering Funds for Services of Public Interest in the Electricity Sector” of 19 September 2012’ of 18 December 2013, insofar as, under this item, in cases where produced electricity quantities eligible for support are sold to non-public suppliers (the sale is carried out otherwise than on an exchange for a price lower than the market price), the producers specified in 7.2 of the Description of the Provision of Services of Public Interest are paid, from funds raised for services of public interest, the sum that is equal to the amount calculated by multiplying the electricity quantity supplied to the electricity grid by the difference between the electricity purchase price set by the Commission for a respective producer and the electricity market price determined for the given calendar year, rather than the weighted average value of the prices received by the producer for the sold electricity eligible for support, is not in conflict with Articles 29 and 46 of the Constitution of the Republic of Lithuania, Paragraph 2 of Article 32 of the Republic of Lithuania’s Law on the Heat Sector, and Paragraph 2 of Article 19 of the Republic of Lithuania’s Law on Energy;

2) whether Item 2.5 (Item 121.2 of the Description of the Procedure for the Provision of Services of Public Interest in the Electricity Sector) of the Resolution of the Government of the Republic of Lithuania (No. 1216) ‘On Amending the Resolution of the Government of the Republic of Lithuania (No. 916) “On Approving the Description of the Procedure for the Provision of Services of Public Interest in the Electricity Sector” of 18 July 2012’ of 18 December 2013, insofar as this item does not provide for clear and unambiguous criteria as to which technical and/or technological reasons are considered sufficient to prove the ‘obligation to produce’, is not in conflict with Articles 29 and 46 of the Constitution of the Republic of Lithuania, Paragraph 2 of Article 32 of the Republic of Lithuania’s Law on the Heat Sector, and Paragraph 2 of Article 19 of the Republic of Lithuania’s Law on Energy;

3) whether Item 2.5 (Item 121.4 of the Description of the Procedure for the Provision of Services of Public Interest in the Electricity Sector) of the Resolution of the Government of the Republic of Lithuania (No. 1216) ‘On Amending the Resolution of the Government of the Republic of Lithuania (No. 916) “On Approving the Description of the Procedure for the Provision of Services of Public Interest in the Electricity Sector” of 18 July 2012’ of 18 December 2013, insofar as this item does not provide for clear and unambiguous criteria based on which the State Energy Inspectorate decides on the validity of the technical and/or technological reasons indicated by the producer, as well as on the necessity for the production mode aimed at maintaining electricity production in the cogeneration mode efficient, is not in conflict with Articles 29 and 46 of the Constitution of the Republic of Lithuania, Paragraph 2 of Article 32 of the Republic of Lithuania’s Law on the Heat Sector, and Paragraph 2 of Article 19 of the Republic of Lithuania’s Law on Energy”.

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