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Content updated: 21-05-2019 12:59

The limitation established in the Law on Electricity on extending the time limit of the validity of an authorisation to develop the capacity of electricity generation from renewable energy sources declared unconstitutional

21-12-2018

By its ruling passed today, the Constitutional Court has recognised that the legal regulation laid down in Item 1 of Paragraph 6 of Article 16 of the Law on Electricity (hereinafter referred to as the Law) is in conflict with Paragraph 1 of Article 46 of the Constitution and the constitutional principle of a state under the rule of law, insofar as, under this legal regulation, the time limit of the validity of an authorisation to develop the capacity of electricity generation from renewable energy sources is extended not more than once for a period of 6 months provided that the person applying for the extension of this time limit has submitted the supporting evidence that the work planned to be carried out has been delayed due to the actions of the state or third parties or force majeure, irrespective of the duration of these circumstances. The legal regulation laid down in Paragraph 7 and Item 2 of Paragraph 24 of Article 16 of the Law has been found not in conflict with the Constitution, insofar as, under this legal regulation, the time limit of the validity of an authorisation to develop the capacity of electricity generation from renewable energy sources is not extended if the person fails to prove that the work planned to be carried out has been delayed due to the actions of the state or third parties or force majeure, i.e. the person does not submit any documents supporting these circumstances.

The Constitutional Court noted that, in regulating economic activity under the Constitution so that it serves the general welfare of the nation and establishing a differentiated legal regulation determined by the specificity of an economic activity, the legislature may, by means of a law, limit freedom of individual economic activity and economic initiative, consolidated in Paragraph 1 of Article 46 of the Constitution, having regard to the constitutional principle of a state under the rule of law. This, among other things, means that regard must be paid to the requirements, implied by the constitutional principle of proportionality, to provide in legal acts for such measures that are in line with the legitimate objectives important to society and do not restrict the rights and freedoms of a person clearly more than necessary in order to reach the said objectives, as well as to provide for such a legal regulation that creates the preconditions for assessing the individual situation of each person concerned against all significant circumstances. The Constitutional Court pointed out that regard must also be paid to the imperative of the protection of legitimate expectations, under which persons have the right to reasonably expect that their legitimately acquired rights will be retained for the established period and they will be able to exercise them in reality.

Under the impugned Item 1 of Paragraph 6 of Article 16 of the Law, the time limit of the validity of an authorisation to develop the capacity of electricity generation from renewable energy sources could be extended if a person applying for the extension of this time limit submitted the supporting evidence that he/she had been unable to carry out the planned work within the established period of 36 months due to the actions of the state or third parties or force majeure, i.e. due to the circumstances beyond his/her control; in view of the said circumstances, the time limit of the validity of an authorisation to develop the capacity of electricity generation from renewable energy sources was extended not more than once for a period of 6 months, irrespective of the duration of these circumstances.

The Constitutional Court held that such a legal regulation under which the time limit of the validity of the authorisation in question was extended in all cases not more than once for a period of 6 months, irrespective of the duration of the circumstances beyond the control of the person, preventing him/her from implementing his/her legitimately acquired right to develop the capacity of electricity generation from renewable energy sources, created no preconditions for assessing the individual situation of each person concerned against all significant circumstances, among other things, the duration of the period during which the person had been prevented from exercising the above-mentioned right due to circumstances beyond his/her control. This legal regulation also denied the legitimate expectation of the person that his/her legitimately acquired right to develop the capacity of electricity generation from renewable energy sources would be retained for the established period and he/she would be able to implement this right in reality and, among other things, would not be prevented from implementing this right due to the actions of the state or third parties or the circumstances of force majeure, beyond his/her control. Thus, such a legal regulation disregarded the constitutional principle of a state under the rule of law and unduly restricted freedom of individual economic activity and economic initiative, consolidated in Paragraph 1 of Article 46 of the Constitution.

In addition, the Constitutional Court examined in this case the compliance of the legal regulation laid down in Paragraph 7 and Item 2 of Paragraph 24 of Article 16 of the Law with the provisions of the Constitution entrenched in Paragraph 2 of Article 5, which stipulates that the scope of power is limited by the Constitution, Article 29, which consolidates the principle of the equality of the rights of persons, and Paragraphs 1–4 of Article 46, which consolidate the constitutional values upon which the national economy is based, as well as with the constitutional principles of a state under the rule of law and the protection of legitimate expectations. Under this legal regulation, the time limit of the validity of an authorisation to develop the capacity of electricity generation from renewable energy sources is not extended if the person fails to prove that the work planned to be carried out has been delayed due to the actions of the state or third parties or force majeure, i.e. he/she does not submit any documents supporting these circumstances.

As held by the Constitutional Court, this legal regulation does not provide for an exhaustive list of documents necessary to substantiate that the work planned to be carried out has been delayed due to the actions of the state or third parties or the circumstances of force majeure.

The Constitutional Court also pointed out that, under the legal regulation laid down in Article 3 of the Law on Public Administration, among other things, in line with such principles of public administration as the supremacy of law, objectivity, proportionality, the absence of the abuse of power, and comprehensiveness, the entities of public administration have the following duties:

1) an entity of public administration authorised to extend the time limit of the validity of an authorisation to develop the capacity of electricity generation from renewable energy sources, upon the receipt of the respective application, must consider it in an objective and comprehensive manner, as well as assess the evidence that the work planned to be carried out has been delayed due to the actions of the state or third parties or the circumstances of force majeure, or assess the reasons due to which such evidence has not been provided;

2) an entity of public administration authorised to issue documents proving the actions of the state or third parties or the circumstances of force majeure must, upon the receipt of the respective application, in accordance with the procedure prescribed by legal acts, consider the application and issue documents confirming or denying the actions of the state or third parties or the circumstances of force majeure.

In view of the foregoing, the Constitutional Court noted that, under the impugned legal regulation laid down in Paragraph 7 and Item 2 of Paragraph 24 of Article 16 of the Law, interpreted in conjunction with the legal regulation laid down in the Law on Public Administration, among other things, Article 3 thereof, the duty, as established for a person applying for the extension of the time limit of the validity of an authorisation to develop the capacity of electricity generation from renewable energy sources, to submit at least one supporting document with evidence that the work planned to be carried out has been delayed due to the actions of the state or third parties or the circumstances of force majeure is not such as to render the person unable to fulfil it. Consequently, there are no grounds for holding that the impugned legal regulation laid down in Paragraph 7 and Item 2 of Paragraph 24 of Article 16 of the Law disregards the requirements, stemming from the constitutional principle of a state under the rule of law, among other things, the constitutional principle of proportionality, not to restrict the rights and freedoms of a person more than necessary in order to reach the legitimate objectives important to society, as well as to provide for such a legal regulation that creates the preconditions for assessing the individual situation of each person concerned against all significant circumstances, or that this legal regulation disregards the imperative of the protection of legitimate expectations, stemming from the constitutional principle of a state under the rule of law.

Thus, there are also no grounds for holding that this impugned legal regulation unduly restricts freedom of individual economic activity and economic initiative, consolidated in Paragraph 1 of Article 46 of the Constitution, or disregards the principle of the equality of the rights of persons, established in Article 29 of the Constitution, or the provision of Paragraph 2 of Article 5 thereof, under which the scope of power is limited by the Constitution.

The full text of this ruling of the Constitutional Court can be found on the website of the Constitutional Court at http://www.lrkt.lt/lt/teismo-aktai/paieska/135/ta1887/content.