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On the powers of the college of a municipal council

Case No. 30/07

 

THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA
RULING

ON THE COMPLIANCE OF PARAGRAPH 1 (WORDING OF 28 JANUARY 2003) OF ARTICLE 18 OF THE REPUBLIC OF LITHUANIA LAW ON LOCAL SELF-GOVERNMENT (WORDING OF 12 OCTOBER 2000) WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA

31 March 2010

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,

with the secretary of the hearing—Daiva Pitrėnaitė,

pursuant to Articles 102 and 105 of the Constitution of the Republic of Lithuania and Article 1 of the Law on the Constitutional Court of the Republic of Lithuania, in its public hearing on 25 March 2010 heard constitutional justice case No. 30/07 subsequent to the petition of the Vilnius Regional Administrative Court, the petitioner, requesting to investigate whether Paragraph 1 (wording of 28 January 2003) of Article 18 of the Republic of Lithuania Law on Local Self-government is not in conflict with Paragraph 4 of Article 119 of the Constitution of the Republic of Lithuania.

The Constitutional Court

has established:

I

The Vilnius Regional Administrative Court, the petitioner, was investigating a civil case. By its ruling the court suspended the consideration of the case and applied to the Constitutional Court with a petition requesting to investigate as to whether Paragraph 1 (wording of 28 January 2003) of Article 18 of the Law on Local Self-government is not in conflict with Paragraph 4 of Article 119 of the Constitution (petition No. 1B-39/07).

II

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

Under Paragraph 4 of Article 119 of the Constitution, for the direct implementation of the laws of the Republic of Lithuania, the decisions of the Government and the municipal council, the municipal council shall form executive bodies accountable to it. Thus, the Constitution provides for two types of municipal institutions which have authoritative empowerments: municipal councils and the executive bodies formed by and accountable to the municipal councils. The executive institution has no right to adopt decisions which are not directly grounded on laws, Government resolutions or decisions of municipal councils, as well as decisions which are equal in their legal power to decisions of municipal councils. Referring to the Constitutional Court doctrine, the petitioner noted that the powers of municipal councils to transfer the right to adopt certain decisions to the executive bodies accountable to the municipal councils must be established expressis verbis in the law and the said powers may not be transferred to municipal institutions that, under the law, are not executive bodies accountable to the municipal councils. In the opinion of the petitioner, the college of the municipal council, which is provided for by Paragraph 1 of Article 18 of the Law on Local Self-government, is not an executive body accountable to municipal councils, since Paragraph 3 (wording of 28 January 2003) of Article 3 of the Law on Local Self-government provides that the director of the municipal administration shall be the executive institution of the municipality. Therefore, according to the petitioner, there are grounds to believe that Paragraph 1 of Article 18 of the Law on Local Self-government could be in conflict with Paragraph 4 of Article 119 of the Constitution.

III

In the course of the preparation of the case for the Constitutional Court hearing, written explanations were received from the representatives of the Seimas, the party concerned, who were Ona Buišienė, a senior specialist of the Legal Department of the Office of the Seimas, and Valdemar Tomaševski, a Member of the Seimas, wherein it is maintained that the disputed legal regulation was not in conflict with the Constitution.

1. The position of the representative of the Seimas, the party concerned, who was O. Buišienė, is grounded on the following arguments.

1.1. The Constitution provides for two types of municipal institutions—municipal councils and the executive bodies accountable to them, the formation of which is a constitutional duty of municipal councils. Interrelations of municipal councils and their executive bodies are based on the constitutional principle of accountability of executive bodies to the representation as well as that of supremacy of municipal councils in regard to the executive bodies which are accountable to them. All decisions adopted by the executive bodies accountable to the municipal councils on the issues assigned to the competence of municipalities are subordinated to decisions of municipal councils.

1.2. The organisation of self-government institutions and procedure for activities thereof are established by the legislator. The disputed norm of the law does not establish the legal regulation, whereby, according to the representative of the Seimas, legal preconditions would be created to interfere with the exceptional competence of municipal councils in the adoption of the decisions on the questions which are expressis verbis indicated in the Constitution. Furthermore, the notion “the college of the municipal council” denotes in what sense the college of the municipal council differs from municipal institutions and does not equate it to any constitutional type of municipal institutions—either the representative or executive one. The college of the municipal council is an internal formation of the municipal council, to which the municipal council entrusts its certain functions. The scope of the functions assigned to the college of the municipal council shows that the legislator did not interfere with the exceptional competence of municipal councils which is provided for in the Constitution.

1.3. The right of the municipal council to form the college of the municipal council stems also from the constitutional principles of independence and freedom of activity of municipalities within the competence defined by the Constitution, thus, the legislator, having entrenched the right of the municipal council, as necessary, to form the college of the municipal council and commission it to exercise powers defined by the laws, was following the Constitution and observing the entrenched form of the legal act of granting of powers (law) and did not deny the possibility for municipal councils to realise their competence which is directly entrenched in the Constitution. Therefore, in the opinion of O. Buišienė, the disputed norm of the law is not in conflict with Paragraph 4 of Article 119 of the Constitution.

2. The representative of the Seimas, the party concerned, who was V. Tomaševski, in his written explanations, assented to the arguments set forth by O. Buišienė.

IV

In the course of the preparation of the case for the Constitutional Court hearing, written explanations were received from Petras Baguška, the Minister of Justice of the Republic of Lithuania, Vytautas Kvietkauskas, the Director of the Association of Local Authorities in Lithuania, Egidijus Vilkickas, the Director of the Legal Affairs Department of the Administration of the Vilnius City Municipality, and Jonas Jagminas, the Chairman of the Seimas State and Administration Committee.

The Constitutional Court

holds that:

I

1. On 7 July 1994, the Seimas adopted the Law on Local Self-government. In accordance with Article 31 of this law, it came into force on the first day following the election to the municipal councils of the Republic of Lithuania, i.e. 26 March 1995.

While implementing the provisions of the Constitution, inter alia Article 119 thereof, the said law entrenched the system of local self-government and principles of self-government and established the general procedure for the organisation and activities of self-government institutions, the competence of self-government institutions, and the bases of municipal economic and financial activities.

The said law has been more than once amended and/or supplemented.

2. On 12 October 2000, the Seimas adopted the Republic of Lithuania Law on the Amendment of the Law on Local Self-government by Article 1 whereof it set forth the Law on Local Self-government (wording of 7 July 1994 with subsequent amendments and supplements) in a new wording. This law came into force on 27 October 2000.

2.1. Paragraph 3 of Article 3 of the Law on Local Self-government (wording of 12 October 2000) prescribed:

“‘Municipal institutions’ means the municipal council—the representative institution—and the municipal board (hereinafter referred to as ‘the board’) and the municipal mayor (hereinafter referred to as ‘the mayor’)—the executive institutions—having the rights and duties related to local government and public administration. Municipal institutions are responsible for the implementation of the right to self-governance and their functions for community interests.”

2.2. Paragraph 4 of Article 3 of the Law on Local Self-government (wording of 12 October 2000) prescribed: “‘Municipal control institution’ means a municipal controller who controls the use of a municipal budget and performs the functions of internal audit of a municipality.”

2.3. Article 12 of the Law on Local Self-government (wording of 12 October 2000) inter alia prescribed:

1. The municipal council shall consist of the representatives of the community of a municipality which are democratically elected in the manner prescribed by the law. <...>

4. 4. The municipal mayor must be elected and the board must be formed within two months from the convocation day of the first sitting of a newly elected municipal council.

<...>”

2.4. Article 15 of the Law on Local Self-government (wording of 12 October 2000) inter alia prescribed:

1. Municipal council committees shall be formed to preliminary consider issues submitted to the municipal council and to present conclusions and proposals, to control the observance of laws and implementation of decisions of the municipal council, mayor and the board.

2. Committees shall be formed from the members of the council by decision of the municipal council. <...>

<...>

5. Committees shall within their competence adopt recommendatory decisions. <...>”

2.5. Article 17 of the Law on Local Self-government (wording of 12 October 2000) inter alia prescribed:

The municipal council shall:

<...>

5) form the board of a municipality;

<...>”

2.6. Article 18 of the Law on Local Self-government (wording of 12 October 2000) inter alia prescribed:

1. The municipal council shall, for the term of the powers thereof, form the board from among the members of the municipal council and establish the number of its members.

2. The mayor and deputy mayor(s) shall be ex officio members of the board. The mayor shall present to the municipal council for approval the candidatures of other board members (not on permanent staff) from among the members of the municipal council. Chairman of the control committee, his deputy and members of the control committee may not be members of the board. The municipal council’s activity regulations shall establish a procedure of approval of board members and loss of the status of a board member.

<...>”

2.7. Article 19 of the Law on Local Self-government (wording of 12 October 2000) inter alia prescribed:

1. The board shall:

<...>

2) adopt decisions on the analysis of the development of the territory of a municipality, preparation of drafts of general long-term social, cultural, economic, investment, demographic, crime control and prevention, ecological, health and other programmes;

<...>

15) on the proposal of the mayor and taking into consideration the list approved by the law, resolve the issue of the establishment of positions of state servants of political (personal) confidence, set their number;

<...>”

3. Summing up the discussed legal regulation, it needs to be held that, in the Law on Local Self-government (wording of 12 October 2000), while defining the notion “municipal institutions”, it was indicated that: 1) a representative municipal institution shall be the municipal council, whereas executive institutions shall be the municipal board and the municipal mayor; 2) the municipal institutions shall assume a direct and personal responsibility for the implementation of the laws as well as the decisions of the Government and the municipal council in the territory of a municipality. The law also established the composition of municipal institutions: the municipal council shall be composed of the democratically elected representatives of the community of a municipality, while the board—of the members of the municipal council; the law determined the functions of the municipal council and executive institutions. When defining the notion “municipal control institution”, it was indicated that: 1) the municipal control institution shall be the municipal controller; 2) the municipal control institution shall be commissioned to control the use of the municipal budget and shall perform the functions of internal audit of a municipality. The law prescribed that the municipal council may form its internal structural sub-units—the municipal council committees, which shall be formed from among the members of the municipal council; the purpose of the municipal council committees is to preliminary consider issues submitted to the municipal council, present conclusions and proposals to the municipal council, and adopt recommendatory decisions within their competence.

In this context it needs to be noted that, by its ruling of 24 December 2002, the Constitutional Court inter alia recognised that Paragraph 1 (wording of 12 October 2000) of Article 18 of the Law on Local Self-governance, to the extent that it established that the municipal board shall be formed from among the members of the municipal council, was in conflict with Paragraphs 1 and 4 of Article 119 of the Constitution.

In its ruling, the Constitutional Court inter alia held that, under the Constitution, the executive bodies accountable to the municipal councils may not be formed from among members of the municipal councils which establish them; the said executive bodies are not internal structural units (sub-units) of municipal councils, which have to ensure the work of the municipal council itself. The fact that, under Paragraph 1 (wording of 12 October 2000) of Article 18 of the Law on Local Self-governance, the municipal council forms the board from among the members of the municipal council means that one disregarded the constitutional principles of accountability of the executive bodies, formed by the municipal councils, to the municipal councils and that of supremacy of the municipal councils over the executive bodies accountable to them, and erased the essential difference entrenched in the Constitution between the municipal councils, as representative institutions through which the right of self-government is implemented, and executive bodies, which are formed by and are accountable to the councils (Constitutional Court ruling of 24 December 2002).

4. On 28 January 2003, the Seimas adopted the Republic of Lithuania Law on the Amendment of Articles 3, 5, 6, 11, 12, 14, 15, 16, 17, 18, 20, 21, 28, 29, 30, 31, 33, 49, and 50 of the Law on Local Self-governance and Recognition of Article 19 Thereof as No Longer Valid, which, under Paragraph 1 of Article 21 thereof, came into force on 25 February 2003.

4.1. Paragraph 3 (wording of 28 January 2003) of Article 3 of the Law on Local Self-government (wording of 12 October 2000) prescribed:

Municipal institutions are the municipal council—the representative institution—and the director of the municipal administration—the executive institution—which have the rights and duties related to local government and public administration. Municipal institutions are responsible for the implementation of the right to self-governance and their functions for community interests.”

Having compared the legal regulation established in Paragraph 3 (wording of 28 January 2003) of Article 3 of the Law on Local Self-government (wording of 12 October 2000) with the one established in Paragraph 3 of Article 3 of the Law on Local Self-government (wording of 12 October 2000), one may notice that the definition of the municipal executive institution changed in the aspect that it was established that the municipal executive institution shall be the director of the municipal administration; the provision that the municipal executive institution shall be the municipal board and the municipal mayor ceased to exist; a representative municipal institution has remained the same—the municipal council.

4.2. Paragraph 4 of Article 3 of the Law on Local Self-government (wording of 12 October 2000) was not changed.

4.3. Paragraph 4 (wording of 28 January 2003) of Article 12 of the Law on Local Self-government (wording of 12 October 2000) prescribed:

4. The municipal mayor must be elected, the deputy (deputies) of the mayor and the director of the municipal administration must be appointed, and the college of the municipal council must be formed, if it has been decided to be formed, within two months from the convocation day of the first sitting of a newly elected municipal council.”

Other paragraphs of Article 12 of the Law on Local Self-government (wording of 12 October 2000) have not been amended and/or supplemented.

While comparing the legal regulation established in Paragraph 4 (wording of 28 January 2003) of Article 12 of the Law on Local Self-government (wording of 12 October 2000) with the legal regulation established in Paragraph 4 of Article 12 of the Law on Local Self-government (wording of 12 October 2000), one may notice that it changed so that the aforesaid provision entrenched that the deputy (deputies) of the mayor and the director of the municipal administration must be appointed and the college of the municipal council must be formed, if it has been decided to be formed, whereas the provision that the board must be formed ceased to exist.

4.4. The provisions of Article 15 of the Law on Local Self-government (wording of 12 October 2000), which are related with the constitutional justice case at issue, have not been amended and/or supplemented.

4.5. Article 17 (wording of 28 January 2003) of the Law on Local Self-government (wording of 12 October 2000) inter alia prescribed:

The municipal council shall:

<...>

5) adopt the decision to form the college of the municipal council and shall form the college upon the presentation of the mayor;

<...>

9) adopt the decision on the admission of the director (deputy director) of the municipal administration to office <...>;

<...>

15) adopt decisions on the analysis of the development of the territory of a municipality, preparation of drafts of general long-term social, cultural, economic, investment, demographic, crime control and prevention, ecological, health and other programmes;

<...>

19) on the proposal of the mayor, decide regarding the establishment of positions of state servants of the secretariat of the municipal council, set their number;

20) each year establish training priorities for municipal employees;

<…>”

While comparing the legal regulation established in Paragraphs 5 and 9 (wording of 28 January 2003) of Article 17 of the Law on Local Self-government (wording of 12 October 2000) with the legal regulation established in Paragraph 5 of Article 17 of the Law on Local Self-government (wording of 12 October 2000), one can find that it was established therein that the municipal council shall adopt the decisions regarding the admission of the director of the administration of a municipality to office as well as the formation of the college of the municipal council, if it has been decided to be formed, whereas the provision that the municipal council shall form the board ceased to exist.

Having compared the legal regulation established in Article 17 (wording of 28 January 2003) of the Law on Local Self-government (wording of 12 October 2000) with the one established in Articles 17 and 19 of the Law on Local Self-government (wording of 12 October 2000), it is clear that the competence of the municipal council was expanded: the municipal council was additionally assigned most of the functions which, under the legal regulation consolidated in Article 19 of the Law on Local Self-government (wording of 12 October 2000), had been attributed to the board.

4.6. Article 18 (wording of 28 January 2003) of the Law on Local Self-government (wording of 12 October 2000) prescribed:

1. The municipal council may, for the term of the powers thereof, form the college of the municipal council (hereinafter referred to as the college) from among the members of the municipal council and establish the number of its members. The municipal council may commission the college to discharge the powers of the municipal council prescribed in Items 15, 19, and 20 of Article 17 of this law.

2. The mayor and deputy mayor(s) shall be ex officio members of the college. The mayor shall present the candidatures of other college members (not on permanent staff) to the municipal council for approval. Only citizens of the Republic of Lithuania may be members of the college, Chairman of the Control Committee, his deputy and members of the Control Committee may not be members of the college. The municipal council’s activity regulations shall establish the work procedure of the college, procedure of the organisation of college sittings, and the procedure of approval of college members and loss of the status of a college member. At least once a year or when necessary, the college shall account to the municipal council for its activities.

3. The powers of the college shall expire when newly elected members of the municipal council gather for the first sitting. Until the formation of a new college, its powers shall be temporarily exercised by the mayor.”

Having compared the legal regulation established in Article 18 (wording of 28 January 2003) of the Law on Local Self-government (wording of 2000 October 12), the provision of Paragraph 1 whereof is disputed in the constitutional justice case at issue, with the legal regulation established in Article 18 of the Law on Local Self-government (wording of 12 October 2000), it is clear that it was changed in essence: Article 18 (wording of 28 January 2003) prescribed that the municipal council may, for the term of the powers thereof, form the college of the municipal council from among the members of the municipal council, and it also entrenched the powers of the college, procedure of the formation of the college and expiry of its powers. Paragraph 1 (wording of 28 January 2003) of Article 18 of the Law on Local Self-government (wording of 12 October 2000) inter alia prescribed that the municipal council may commission the college, formed from among the members of the municipal council, to discharge certain powers attributed to the competence of the municipal council.

4.7. Summing up the discussed amendments of the Law on Local Self-government (wording of 12 October 2000), it needs to be held that the definition of the municipal executive institution was changed in essence: it was established that the executive institution of the municipal council shall be the director of the municipal administration; the provisions, which entrenched that the executive institution of the municipal council shall be the board of a municipality, which the municipal council shall form from among its members, and the mayor, ceased to exist. The procedure of the formation of the municipal institutions was also changed: it was established that the municipal council shall adopt the decision regarding the admission of the director of the municipal administration—the municipal executive institution—to office. The provision, which entrenched the functions of the municipal board, was recognised as no longer valid, and most of the functions that under the Law on Local Self-government (wording of 12 October 2000) had been assigned to the municipal board were attributed to the municipal council. The provision, which entrenched the definition of the notion “municipal control institution”, as well as the provision, which entrenched that the municipal council may, from among the members thereof, form the municipal council committees that adopt recommendatory decisions, was not changed. The law also consolidated the provision that the municipal council may, for the term of the powers thereof, form the college of the municipal council from among the members of the municipal council and may commission the college to discharge certain powers of the municipal council.

While construing the disputed legal regulation entrenched in Paragraph 1 (wording of 28 January 2003) of Article 18 of the Law on Local Self-government (wording of 12 October 2000), under which the municipal council could, for the term of the powers thereof, form the college of the municipal council from among the members of the municipal council and could commission the college to discharge certain powers attributed to the competence of the municipal council, together with the legal regulation entrenched in Article 17 (wording of 28 January 2003) of the Law on Local Self-government (wording of 12 October 2000), it needs to be noted that the formation of the college of the municipal council is a right of the municipal council, but not its duty, therefore, the municipal council could also decide not to form such college. The powers which the municipal council was allowed to commission to the college of the municipal council, in the case of having not formed such college, were further discharged by the municipal council. The college of the municipal council could be commissioned to do the following: to adopt decisions on the analysis of the development of the territory of a municipality, preparation of drafts of general long-term social, cultural, economic, investment, demographic, crime control and prevention, ecological, health and other programmes; on the proposal of the mayor, to decide regarding the establishment of positions of state servants of the secretariat of the municipal council and set their number; each year, to establish training priorities for municipal employees. Decisions adopted by the college of the municipal council regarding the said issues were final.

5. Until 15 September 2008 the Law on Local Self-government (wording of 12 October 2000 with amendments of 28 January 2003) was more than once amended and/or supplemented, however, the provision, which is disputed by the petitioner, was not changed.

6. On 15 September 2008, the Seimas adopted the Law on the Amendment of the Law on Local Self-government by Article 1 whereof the Law on Local Self-government (wording of 12 October 2000 with subsequent amendments and supplements) was amended and set forth in a new wording. This law came into force on 1 October 2008 (with certain exceptions).

Having set forth the Law on Local Self-government in the new wording, the numeration of inter alia some articles was changed: Article 12 became Article 11, Article 15—Article 14, Article 17—Article 16, and Article 18, the provision whereof is disputed by the petitioner—Article 17.

6.1. Article 16 of the Law on Local Self-government (wording of 15 September 2008) inter alia prescribed:

1. The competence of the municipal council may be exceptional and ordinary.

2. The exceptional competence of the municipal council shall be:

<...>

11) adoption of decisions regarding the establishment of positions of state servants of political (personal) confidence of the mayor and number thereof, and formation of the secretariat of the municipal council on the proposal of the mayor;

<...>

20) submission of proposals to state institutions regarding the improvement of activities of their subdivisions located in the territory of a municipality and, when necessary, hearing of the heads of such subdivisions in the manner prescribed by the municipal council’s activity regulations; <...>

41) adoption of decisions regarding the analysis of the development of the territory of a municipality and preparation of drafts of general long-term social, cultural, economic, investment, demographic, crime control and prevention, ecological, health and other programmes;

<...>

6. The municipal council may not transfer the powers attributed to its exceptional competence to any other municipal institution or establishment.

<...>”

Having compared the legal regulation established in Article 16 of the Law on Local Self-government (wording of 15 September 2008) with the one established in Article 17 (wording of 28 January 2003) of the Law on Local Self-government (wording of 12 October 2000), one can notice that it was changed to the extent that the law distinguished between the exceptional and ordinary competence of the municipal council; it was established that the municipal council may not transfer the powers attributed to its exceptional competence to any other municipal institution or establishment.

It needs to be noted that the adoption of decisions regarding the analysis of the development of the territory of a municipality and preparation of drafts of general long-term social, cultural, economic, investment, demographic, crime control and prevention, ecological, health and other programmes as well as decisions regarding the establishment of positions of state servants of political (personal) confidence of the mayor and number thereof and formation of the secretariat of the municipal council on the proposal of the mayor, i.e. two out of three functions, which, according to the legal regulation entrenched in Paragraph 1 (wording of 28 January 2003) of Article 18 of the Law on Local Self-government (wording of 12 October 2000), could be transferred to the college of the municipal council, under Article 16 of the Law on Local Self-government (wording of 15 September 2008) are attributed not to the ordinary, but exceptional competence of the municipal council: the municipal council may not transfer them to any other municipal institution or establishment.

6.2. Article 17 of the Law on Local Self-government (wording of 15 September 2008) prescribes:

1. The municipal council may, for the term of the powers thereof, form the college of the municipal council (hereinafter referred to as the college) from among the members of the council.

2. The number of the members of the college, work procedure of the college and procedure of the organisation of college sittings shall be established by the regulations.

3. The college shall be an advisory body of the municipal council.

4. As a rule, the college shall consider the following issues:

1) analyse activities of subdivisions of state institutions located in the territory of a municipality, submit proposals to the municipal council regarding the improvement of activities of these subdivisions and hearing of the heads thereof;

2) consider and submit proposals regarding the analysis of the development of the territory of a municipality and the organisation of preparation of drafts of general long-term social, cultural, economic, investment, demographic, crime control and prevention, ecological, health and other programmes;

3) plan training priorities for members of the municipal council (each year);

4) consider questions regarding the formation of the secretariat of the municipal council or establishment of positions of state servants of political (personal) confidence of the mayor (in the case of not establishing the secretariat) and number thereof;

While comparing the legal regulation established in Article 17 of the Law on Local Self-government (wording of 15 September 2008) with the one established in Article 18 (wording of 28 January 2003) of the Law on Local Self-government (wording of 12 October 2000), it is clear that it changed in essence: it was explicitly established that the college of the municipal council, formed from among the members of the municipal council, is an advisory institution of the municipal council, which considers issues delegated to it, but adopts no final decisions; the Law on Local Self-government (wording of 15 September 2008) no longer contains the provision wherein it was entrenched that the municipal council may commission the college of the municipal council to discharge certain powers attributed to the competence of the municipal council.

6.3. In summary, it needs to be held that the Law on Local Self-government (wording of 15 September 2008) explicitly established the status of the college of the municipal council: it entrenched that the college of the municipal council, formed from among the members of the municipal council, is an advisory institution of the municipal council, which considers issues attributed to its competence, but adopts no final decisions. Decisions on the issues, which are considered and analysed by the college of the municipal council, are adopted by the municipal council in accordance with the competence attributed to it by Article 16 of the Law on Local Self-government (wording of 15 September 2008).

Thus, the legal regulation disputed by the petitioner was changed in essence, and the provision whereby it was entrenched that the municipal council may commission the college of the municipal council to discharge certain powers attributed to the competence of the municipal council ceased to exist.

7. Under Paragraph 4 of Article 69 of the Law on the Constitutional Court, the annulment of the disputed legal act shall be grounds to adopt a decision to dismiss the instituted legal proceedings. The Constitutional Court has held that the same can also be said as regards the cases when the disputed legal act (part thereof) was not repealed, however, the legal regulation established therein was changed (Constitutional Court ruling of 4 March 2003, decision of 14 March 2006, rulings of 30 March 2006, 14 April 2006, and 21 September 2006, decision of 28 May 2007, as well as ruling of 22 June 2009).

However, as it has been held by the Constitutional Court more than once, when a court investigating a case applies to the Constitutional Court after it has doubts concerning the compliance of a law or other legal act applicable in the case with the Constitution (other legal act of higher power), the Constitutional Court has a duty to investigate the request of the court regardless of the fact whether the disputed law or other legal act is valid or not.

II

1. It has been mentioned that the Vilnius Regional Administrative Court, the petitioner, requests to investigate whether Paragraph 1 (wording of 28 January 2003) of Article 18 of the Law on Local Self-government was not in conflict with Paragraph 4 of Article 119 of the Constitution.

2. Article 119 of the Constitution prescribes:

The right to self-government shall be guaranteed to administrative units of the territory of the State, which are provided for by law. It shall be implemented through corresponding municipal councils.

The members of municipal councils shall be elected for a four-year term, as provided for by law, from among citizens of the Republic of Lithuania and other permanent residents of the administrative unit by the citizens of the Republic of Lithuania and other permanent residents of the administrative unit, on the basis of universal, equal and direct suffrage by secret ballot.

The procedure for the organisation and activities of self-government institutions shall be established by law.

For the direct implementation of the laws of the Republic of Lithuania, the decisions of the Government and the municipal council, the municipal council shall form executive bodies accountable to it.”

3. In its acts, adopted in previous constitutional justice cases, inter alia in its ruling of 24 December 2002 and decision of 11 February 2004, the Constitutional Court, while construing the provisions of the Constitution related to local self-government, has formulated a broad official constitutional doctrine of local self-government.

4. The Constitutional Court has held that local self-government is self-regulation and self-action of the communities of the administrative units of state territory, in accordance with the competence defined by the Constitution and laws, which are provided for by law, i.e. territorial, or local, communities, which are composed of permanent residents of these units (citizens of the Republic of Lithuania and other permanent residents) (Constitutional Court rulings of 24 December 2002, 13 December 2004, 9 February 2007, and 8 June 2009). The said territorial communities are an entity of self-government law and are referred to in the Constitution as municipalities (or local municipalities) (Constitutional Court ruling of 24 December 2002).

5. The right of self-government is inseparable from the institutions through which the said right is implemented and/or from the organisation and activities of the institutions which are accountable to them; the notion “self-government institutions” expresses the constitutional purpose of corresponding institutions of territorial communities of administrative units: they are institutions through which the right of self-government of respective communities is implemented (Constitutional Court rulings of 24 December 2002 and 13 December 2004). Therefore, it is not coincidence that the Constitution employs the notion of municipality not only in the sense of the territorial community of an administrative unit but also in the sense of local self-government institutions and/or the institutions which are accountable to them (Constitutional Court rulings of 24 December 2002 and 13 December 2004).

6. The implementation of the right of self-government is impossible without democratic representation. Municipal councils, as self-government institutions, are representative institutions; they are directly provided for in the Constitution; no other self-government institutions, save the municipal councils, are specified in the Constitution (Constitutional Court rulings of 24 December 2002 and 13 December 2004). The municipal councils are institutions through which the right of self-government of corresponding communities is implemented, while the members of the municipal council are representatives of a corresponding territorial community (Constitutional Court ruling of 30 May 2003).

7. Under Paragraph 4 of Article 119 of the Constitution, decisions adopted by municipal councils are inseparable from the execution of these decisions; decisions of municipal councils are directly implemented by the executive bodies which are accountable to the municipal councils, and which are inseparable part of the self-government mechanism; the establishment of the said executive bodies is a constitutional duty of municipal councils (Constitutional Court rulings of 24 December 2002 and 13 December 2004 as well as decision of 11 February 2004).

7.1. The Constitution does not establish any types of executive bodies (collegial, single-person bodies), which are accountable to municipal councils, nor the procedure of their formation, their names, and interrelations; their functions and competence are established only in general terms. The establishment, by law, of the functions and competence of the executive bodies accountable to municipal councils is left to be carried out by the Seimas. When regulating the formation, functions and competence of the executive bodies accountable to municipal councils by laws, one must pay heed to the principles of local self-government, which are entrenched in the Constitution: the representative democracy, accountability of executive bodies to the representation, the supremacy of municipal councils in respect to the executive bodies which are accountable to them, etc. (Constitutional Court rulings of 24 December 2002 and 13 December 2004).

The formula “the municipal council shall establish executive bodies”, which is employed in Paragraph 4 of Article 119 of the Constitution, also implies that the legislator enjoys the discretion to establish by law as to the procedure, whether by election or in other fashion, the said executive bodies are formed, also, which of the said bodies are collegial and which are single-person, also, the type of their interrelations. The legislator also enjoys the discretion to establish by law the structure of collegial executive bodies and the number of their members, or to leave it, by law, to be done by municipal councils (Constitutional Court rulings of 24 December 2002 and 13 December 2004).

7.2. The Constitutional Court has noted that the executive bodies indicated in Paragraph 4 of Article 119 of the Constitution are the institutions which are established for the direct implementation of the laws, the decisions of the Government and the municipal council. The said executive bodies are not internal structural units (sub-units) of municipal councils, which have to ensure the work of the municipal council itself; under the Constitution, the executive bodies accountable to municipal councils may not be formed from among members of the municipal councils which establish them (Constitutional Court rulings of 24 December 2002 and 13 December 2004).

7.3. The Constitutional Court has noted that the executive bodies which are accountable to municipal councils may not be treated as ones through which the right of self-government is implemented by territorial communities. The municipal councils have the constitutional competence to control the said executive bodies, therefore, the said executive bodies may not replace municipal councils, or bring municipal councils under their control, or dictate them. The powers of the executive bodies may not be dominant in respect to the powers of municipal councils. It is not permitted to establish the legal regulation whereby the executive bodies accountable to municipal councils would be equated to the municipal councils which have established them, let alone the legal regulation whereby the powers of the executive bodies established by and accountable to municipal councils would restrict the powers of the latter, or under which municipal councils would lose an opportunity to control the executive bodies established by and accountable to them (Constitutional Court ruling of 24 December 2002).

8. The legislator has both the right and the duty to define, while taking account of the exceptional competence of municipalities, which is directly entrenched in the Constitution, the competence of municipal councils and executive bodies accountable to them; while defining the competence of municipal councils and executive bodies accountable to them, the legislator can also establish the procedure of realisation of this competence (Constitutional Court decision of 11 February 2004).

8.1. The Constitutional Court has held that certain competence of municipal councils is expressis verbis established in the Constitution itself. The decisions on the issues of self-government indicated inter alia in Paragraph 1 of Article 40, Paragraph 2 of Article 41, Paragraph 2 of Article 47, Paragraph 4 of Article 119, Paragraphs 1 and 2 of Article 121, and Article 122 of the Constitution may only be adopted by municipal councils. This is the exceptional constitutional competence of municipal councils.

Under the Constitution, the legislator may not establish that decisions on the issues that belong to the exceptional constitutional competence of municipal councils are adopted not by municipal councils, but the executive bodies formed by and accountable to them or other municipal institutions; municipal councils by themselves may transfer the right to adopt such decisions neither to the executive bodies accountable to the municipal councils, nor to any other municipal institutions, while the legislator is not allowed to establish any such legal regulation under which municipal councils would be permitted to transfer the right to adopt such decisions to the executive bodies accountable to the municipal councils or other municipal institutions (Constitutional Court decision of 11 February 2004).

Under the Constitution, it is also not permitted to establish the legal regulation which would create legal preconditions for the executive bodies accountable to municipal councils to interfere with the exceptional constitutional competence of municipal councils in the adoption of decisions on the issues indicated in Paragraph 1 of Article 40, Paragraph 2 of Article 41, Paragraph 2 of Article 47, Paragraph 4 of Article 119, Paragraphs 1 and 2 of Article 121, and Article 122 of the Constitution (Constitutional Court ruling of 24 December 2002 and decision of 11 February 2004).

8.2. As regards the issues whereby the competence of municipal councils is not expressis verbis established in the Constitution itself (is not exceptional constitutional competence of municipal councils), the legislator, under the Constitution, enjoys powers to establish as to the adoption of which decisions is attributable to the competence of municipal councils, and of which—to the competence of the executive bodies accountable to municipal councils or other municipal institutions. In cases when the laws prescribe that certain decisions are adopted by municipal councils, the municipal councils may transfer this right to adopt such decisions neither to the executive bodies accountable to the municipal councils, nor other municipal institutions. However, the legislator, under the Constitution, may also establish, by means of the law, such legal regulation under which certain decisions are adopted by municipal councils, but that they may transfer the right to adopt such decisions to the executive bodies accountable to the municipal councils; however, in such cases the following conditions are to be met: 1) the powers of municipal councils to transfer the right to adopt certain decisions to the executive bodies accountable to the municipal councils must be established expressis verbis in the law; 2) the said powers may not be transferred to municipal institutions that, according to the law, are not the executive bodies accountable to the municipal councils. Still, in other cases the legislator may, by means of the law, directly establish as regards the issues the decisions on which are adopted by the executive bodies accountable to the municipal councils (Constitutional Court decision of 11 February 2004).

Thus, it needs to be held that the Constitutional Court, while formulating the official concept of local self-government, has noted that municipal councils may transfer, to the executive bodies accountable to the municipal councils, the right to adopt certain decisions on the issues which are not attributed to the exceptional constitutional competence of municipal councils, provided that such powers of municipal councils are expressis verbis established in the law. The right to adopt decisions on the issues which, according to the law, may be transferred to the executive bodies accountable to the municipal councils may not be transferred to municipal institutions that, under the law, are not the executive bodies accountable to the municipal councils.

9. The Constitutional Court has held that municipal councils, implementing the right of self-government guaranteed by the Constitution, may also establish other municipal institutions and other municipal establishments which have authoritative empowerments. Municipal institutions are established so that the interests of the municipality would be realised, the laws and decisions of the Government and the municipal council would be directly implemented. Thus, municipal councils, as well as the executive bodies accountable to them, and other institutions established by municipal councils, are to be regarded as “municipal institutions”. The notion “municipal institutions” expresses the subordination of respective institutions to a respective municipality (Constitutional Court rulings of 24 December 2002 and 13 December 2004).

In the context of the constitutional justice case at issue, it needs to be noted that neither the executive bodies accountable to the municipal council nor other municipal institutions which have authoritative empowerments may be established from among the members of the municipal council.

10. In the context of the constitutional justice case at issue, it also needs to be noted that the legislator, under the Constitution, may also establish, by means of the law, such legal regulation under which municipal councils are allowed to transfer the right to adopt decisions on certain issues attributed to the competence of municipal councils (save the exceptional constitutional competence of municipal councils) to other municipal institutions which have authoritative empowerments, provided that such powers of municipal councils are established expressis verbis in the law and the law does not establish that the right to adopt the said decisions may be transferred to the executive bodies accountable to the municipal councils.

11. It needs to be noted that under the Constitution, inter alia Paragraph 1 and 4 of Article 119 thereof, municipal councils, while implementing the right of self-government guaranteed by the Constitution, may form internal structural sub-units thereof.

In this context it needs to be noted that, under the Constitution, internal structural sub-units of municipal councils may not be treated as ones through which the right of self-government is implemented by territorial communities, therefore, the legislator, while regulating relations of local self-government, is not allowed to establish any such legal regulation under which internal structural sub-units of municipal councils or individual municipal officials would be equated to municipal councils or would replace municipal councils, inter alia in the aspect that they would take over the execution of certain powers attributed to the competence of municipal councils as representations of residents of corresponding territories. Internal structural sub-units of municipal councils must help to ensure the work of municipal councils by presenting recommendations to municipal councils on the issues attributed to the competence of municipal councils, etc., however, they may not adopt final decisions on the issues attributed to the competence of municipal councils.

In the context of the constitutional justice case at issue it needs to be noted that, under the Constitution, internal structural sub-units of municipal councils may not be treated as the executive bodies accountable to the municipal councils or as other municipal institutions which are established by municipal councils and which have authoritative empowerments, either.

III

On the compliance of Paragraph 1 (wording of 28 January 2003) of Article 18 of the Law on Local Self-government (wording of 12 October 2000) with Paragraph 4 of Article 119 of the Constitution.

1. Paragraph 1 (wording of 28 January 2003) of Article 18 of the Law on Local Self-government (wording of 12 October 2000) prescribed:

The municipal council may, for the term of the powers thereof, form the college of the municipal council (hereinafter referred to as the college) from among the members of the municipal council, and establish the number of its members. The municipal council may commission the college to discharge the powers of the municipal council prescribed in Items 15, 19, and 20 of Article 17 of this law.”

2. Although the petitioner requests the Constitutional Court to investigate the compliance of Paragraph 1 (wording of 28 January 2003) of Article 18 of the Law on Local Self-government (wording of 12 October 2000) with Paragraph 4 of Article 119 of the Constitution, it is clear from the arguments set forth in the petition of the petitioner that he had doubts whether Paragraph 1 (wording of 28 January 2003) of Article 18 of the Law on Local Self-government (wording of 12 October 2000) was not in conflict with the Constitution to the extent that it established that the municipal council may commission the college of the municipal council, formed from among the members of the municipal council, to discharge the powers of the municipal council prescribed in Items 15, 19, and 20 of Article 17 of this law.

3. While construing the disputed legal regulation entrenched in Paragraph 1 (wording of 28 January 2003) of Article 18 of the Law on Local Self-government (wording of 12 October 2000) together with the legal regulation entrenched in Article 17 (wording of 28 January 2003) of the Law on Local Self-government (wording of 12 October 2000), it has been mentioned in this ruling that the college of the municipal council, formed from among the members of the municipal council, could be commissioned to discharge certain powers attributed to the competence of the municipal council, which, in the case of having not established such college, are further discharged by the municipal council; the college of the municipal council could be commissioned to do the following: to adopt decisions on the analysis of the development of the territory of a municipality, preparation of drafts of general long-term social, cultural, economic, investment, demographic, crime control and prevention, ecological, health and other programmes; on the proposal of the mayor, to decide regarding the establishment of positions of state servants of the secretariat of the municipal council, set their number; and, each year, to establish training priorities for municipal employees.

4. While deciding whether Paragraph 1 (wording of 28 January 2003) of Article 18 of the Law on Local Self-government (wording of 12 October 2000), to the extent that it established that the municipal council may commission the college of the municipal council, formed from among the members of the municipal council, to discharge the powers of the municipal council prescribed in Items 15, 19, and 20 of Article 17 of this law, was not in conflict with the Constitution, it is important to elucidate the status and legal nature of the college of the municipal council.

It has been mentioned that the Constitutional Court, while formulating the official constitutional notion of local self-government, has noted that municipal councils may transfer, to the executive bodies accountable to the municipal councils, the right to adopt certain decisions on the issues which are not attributed to the exceptional constitutional competence of municipal councils, provided that such powers of municipal councils are expressis verbis established in the law. It has also been mentioned that municipal councils may also transfer the right to adopt decisions on certain issues attributed to the competence of municipal councils (save the exceptional constitutional competence of municipal councils) to other municipal institutions which have authoritative empowerments, provided that such powers of municipal councils are established expressis verbis in the law and the law does not establish that the right to adopt the said decisions may be transferred to the executive bodies accountable to the municipal councils.

5. It has been mentioned that Paragraph 3 (wording of 28 January 2003) of Article 3 of the Law on Local Self-government (wording of 12 October 2000), while defining the municipal executive institution, inter alia prescribed: 1) the municipal executive institution shall be the director of the municipal administration; 2) the executive institution shall assume a direct and personal responsibility for the implementation of the laws as well as the decisions of the Government and the municipal council in the territory of a municipality. In this context it needs to be noted that neither this nor other provisions of the Law on Local Self-government (wording of 12 October 2000 with amendments of 28 January 2003) indicate any other institution as an executive body accountable to the municipal council. It has been also mentioned that, under Paragraph 1 (wording of 28 January 2003) of Article 18 of the Law on Local Self-government (wording of 12 October 2000), the college of the municipal council shall be formed from among the members of the municipal council.

Thus, under the legal regulation entrenched in the provisions of Paragraph 3 (wording of 28 January 2003) of Article 3 of the Law on Local Self-government (wording of 12 October 2000) as well as other provisions of the Law on Local Self-government (wording of 12 October 2000 with amendments of 28 January 2003), the college of the municipal council, formed from among the members of the municipal council, may not be treated as an executive body accountable to the municipal council.

It has also been mentioned that, under the Constitution, the executive bodies accountable to the municipal councils may not be formed from among the members of the municipal councils which establish them.

6. It has been mentioned that, while defining the notion “municipal control institution”, Paragraph 4 of Article 3 of the Law on Local Self-government (wording of 12 October 2000) prescribed: 1) the municipal control institution shall be the municipal controller; 2) the municipal control institution shall be commissioned to control the use of the municipal budget and perform the functions of internal audit of a municipality.

Consequently, under the legal regulation entrenched in Paragraph 4 (wording of 28 January 2003) of Article 3 of the Law on Local Self-government (wording of 12 October 2000), the college of the municipal council is not and may not be regarded as a municipal control institution.

7. It has also been mentioned in this ruling that the Constitutional Court, while formulating the official constitutional notion of local self-government, has noted that municipal councils, while implementing the right of self-government guaranteed by the Constitution, may also establish other municipal institutions which have authoritative empowerments.

It has been mentioned that other municipal institutions which have authoritative empowerments participate in the implementation of the laws, decisions of the Government and the municipal council in the territory of a municipality or implement them themselves. It has also been mentioned that other municipal institutions which have authoritative empowerments may not be formed from among the members of the municipal council.

Thus, the college of the municipal council, which is specified in Paragraph 1 (wording of 28 January 2003) of Article 18 of the Law on Local Self-government (wording of 12 October 2000) and is formed from among the members of the municipal council, may not be treated as one of other municipal institutions which have authoritative empowerments.

8. It needs to be held that, under the legal regulation established in the Law on Local Self-government (wording of 12 October 2000 with amendments of 28 January 2003), the college of the municipal council is neither the municipal executive institution, nor the municipal control institution, nor other municipal institution which has authoritative empowerments.

9. It has been mentioned that, under the legal regulation established in the Law on Local Self-government (wording of 12 October 2000 with amendments of 28 January 2003), municipal councils may establish their structural sub-units. Internal structural sub-units of municipal councils inter alia are municipal council committees. The municipal council committees are formed from among the members of the municipal council and the purpose of the municipal council committees is to preliminary consider issues submitted to the municipal council, to present conclusions and proposals to the municipal council, and to adopt recommendatory decisions within their competence.

10. With regard to the procedure of formation, the college of the municipal council is similar to municipal council committees, as both the college of the municipal council and municipal council committees are formed from among the members of the municipal council. In this respect, both the college of the municipal council and municipal council committees are to be treated as internal structural sub-units of the municipal council. However, they differ in the nature of powers and content thereof: according to their functions, municipal council committees are advisory bodies of the municipal council, whereas the college of the municipal council is granted the right to independently discharge certain functions of the municipal council, which are entrenched in Article 17 (wording of 28 January 2003) of the Law on Local Self-government (wording of 12 October 2000).

11. It has been mentioned that the Constitutional Court, when construing inter alia Paragraphs 1 and 4 of Article 119 of the Constitution, has noted that municipal councils, while implementing the right of self-government guaranteed by the Constitution, may form their internal structural sub-units.

It has also been mentioned that, under the Constitution, internal structural sub-units of municipal councils may not be treated as ones through which the right of self-government is implemented by territorial communities, therefore, the legislator, while regulating relations of local self-government, is not allowed to establish any such legal regulation under which internal structural sub-units of municipal councils or individual municipal officials would be equated to municipal councils or would replace municipal councils, inter alia in the aspect that they would take over the discharge of certain powers attributed to the competence of municipal councils as representations of residents of corresponding territories. Internal structural sub-units of municipal councils must help to ensure the work of municipal councils by presenting recommendations to municipal councils on the issues attributed to the competence of municipal councils, etc.; however, they may not adopt final decisions on the issues attributed to the competence of municipal councils.

It has been also mentioned that, under the Constitution, internal structural sub-units of municipal councils may be treated neither as executive bodies accountable to municipal councils nor as other municipal institutions which are established by municipal councils and which have authoritative empowerments.

12. It has been mentioned that Paragraph 1 (wording of 28 January 2003) of Article 18 of the Law on Local Self-government (wording of 12 October 2000) prescribed that the municipal council may form the college of the municipal council from among the members of the municipal council and commission it to discharge the powers of the municipal council prescribed in Items 15, 19, and 20 of Article 17 (wording of 28 January 2003) of the Law on Local Self-government (wording of 12 October 2000). Such legal regulation created legal preconditions to transfer, to a certain extent, the implementation of the right of self-government to the college of the municipal council. Consequently, under the legal regulation established in Paragraph 1 (wording of 28 January 2003) of Article 18 of the said law, the college of the municipal council, upon implementing the powers assigned to it by the municipal council, could, in certain issues, be equated to the municipal council or could replace it, inter alia in the aspect that it could take over the discharge of certain powers which are attributed to the competence of the municipal council as a representation of residents of corresponding territories.

13. It needs to be held that the legal regulation established in Paragraph 1 (wording of 28 January 2003) of Article 18 of the Law on Local Self-government (wording of 12 October 2000), to the extent that it prescribed the right of the municipal council to commission the college of the municipal council, formed from among the members of the municipal council, to discharge certain powers attributed to the competence of the municipal council, deviated from the notion of local self-government entrenched in the Constitution, inter alia Paragraphs 1 and 4 of Article 119 thereof.

14. Taking account of the arguments set forth, one is to draw a conclusion that Paragraph 1 (wording of 28 January 2003) of Article 18 of the Law on Local Self-government (wording of 12 October 2000), to the extent that it established that the municipal council may commission the college of the municipal council, formed from among the members of the municipal council, to discharge the powers of the municipal council prescribed in Items 15, 19, and 20 of Article 17 of this law, was in conflict with Paragraphs 1 and 4 of Article 119 of the Constitution.

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

ruling:

To recognise that Paragraph 1 (wording of 28 January 2003; Official Gazette Valstybės žinios, 2003, No. 17-704) of Article 18 of the Republic of Lithuania Law on Local Self-government (wording of 12 October 2000), to the extent that it established that the municipal council may commission the college of the municipal council, formed from among the members of the municipal council, to discharge the powers of the municipal council prescribed in Items 15, 19, and 20 of Article 17 of this law, was in conflict with Paragraphs 1 and 4 of Article 119 of the Constitution of the Republic of Lithuania.

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

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

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