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Content updated: 21-05-2019 13:12

The government resolution on the removal of the Director of the State Food and Veterinary Service from office complies with the Constitution

02-03-2018

By its ruling adopted today, the Constitutional Court has adopted the decisions on three questions.

The Constitutional Court has recognised that the government resolution (No 960) of 28 September 2016 on dismissing Jonas Milius from the office of the Director of the State Food and Veterinary Service (hereinafter referred to as the government resolution) is not in conflict with the Constitution and Item 7 of Paragraph 9 of Article 291, Paragraph 1 of Article 37, and Paragraph 1 of Article 41 of the Law on the Government.

The Constitutional Court has also recognised that Paragraph 1 of Article 411 of the Law on the Government, establishing that government decisions and resolutions are passed at a government meeting by a majority vote of the members of the Government attending that meeting and not by a majority of all members of the Government, is in conflict with Paragraph 1 of Article 95 of the Constitution.

By means of this ruling, the Constitutional Court has also dismissed the part of the case in which the petitioner requested an investigation into whether the decision “12. On the activity report of the Director of the State Food and Veterinary Service”, included into the minutes (No 52) of the government meeting of 15 September 2016, was in conflict with the Constitution and the Law on the Government. Under the Constitution, the Constitutional Court decides whether the acts of the Government are in conflict with the Constitution and laws; meanwhile, the above-mentioned decision is not an act of the Government; it reveals the preliminary position of the members of the Government who participated in the government meeting but it does not express the will of the Government as a collegial institution of executive power. Thus, this decision recorded in the minutes of the meeting is not a matter for investigation by the Constitutional Court and this part of the case has been dismissed.

The petitioner basically substantiated its doubts concerning the compliance of the impugned legal regulation with the specified provisions of the Constitution and the Law on the Government by the fact that, according to the petitioner, disregarding the constitutional requirement to decide the affairs of state governance, attributed to its competence in the Constitution and laws, by adopting, at its sittings, resolutions and not any other legal acts, the Government dismissed Jonas Milius from the office of the Director of the State Food and Veterinary Service after it had disapproved of his activity report not by means of a government resolution, but by means of a decision recorded in the minutes of the meeting of the Government. The petitioner also stated that, by acting so, the Government exceeded its powers established in the Constitution and laws.

In its ruling, the Constitutional Court has noted that, under the Constitution, as well as under the Law on the Government, the Government decides the affairs of state governance at its sittings by adopting resolutions by a majority vote of all members of the Government. The assessment of the activity of the director of the State Food and Veterinary Service, as a state official directing the governmental institution, as well as his/her dismissal from office, is an affair of state governance under the Constitution and laws.

The Constitutional Court has also pointed out that the principle of the supremacy of the Constitution gives rise to the requirement that the scope of power is limited by the Constitution, and the law-making subjects, as well as the Government, may pass legal acts only if they do not exceed their powers; the sub-statutory legal acts adopted by the Government must comply with the Constitution and laws. In the ruling, the Constitutional Court has held that the legal ground for dismissing Jonas Milius, Director of the State Food and Veterinary Service, from office was Item 7 of Paragraph 9 of Article 29of the Law on the Government, under which the head of the government agency is dismissed when the Government does not approve of his/her activity report. The Constitutional Court has noted that this provision of the Law on the Government does not include the requirement to necessarily decide both questions by means of separate resolutions of the Government. The impugned government resolution was adopted with regard to the above-mentioned record of the minutes of the government meeting, which registered the preliminary position of the members of the Government participating in the government meeting to negatively assess the annual activity report presented by Jonas Milius. Thus, the government resolution in question should be assessed as expressing the will of the Government to also negatively assess the activity report of Jonas Milius, Director of the State Food and Veterinary Service, and, for this reason, to dismiss him from office. The Constitutional Court has emphasised that, if the government resolution at issue is understood in the described manner, there is no ground for stating that the affairs of state governance – the assessment of the activity report and the related dismissal of Jonas Milius from office – were decided not at the sitting of the Government and not by adopting a resolution. There is also no ground for stating that it was not done by means of the majority vote of all members of the Government.

The Constitutional Court has also noted that, by adopting this decision, the Government also took account of all the material of the case, i.e. not only of the presented activity report, but also of the corruption assessment analysis by the Special Investigation Service and other material available to the Government.

In the constitutional justice case at issue, the Constitutional Court has recalled that, among other things, the constitutional principle of responsible governance, which is to be interpreted in conjunction with the imperative obliging state institutions to serve the people, as consolidated in Paragraph 3 of Article 5 of the Constitution, implies the publicity and transparency requirements for law-making procedures; such requirements must be followed, inter alia, by the institutions exercising state power. When resolving the affairs of state governance, the Government may not exceed the powers conferred on it by the Constitution and laws; when implementing these powers, it must follow the requirements of publicity and transparency of law-making procedures that stem from the Constitution and it must adopt legitimate and reasonable legal acts (they must be clear, rationally reasoned, based on the provisions of higher-ranking legal acts, etc.).

In its ruling, the Constitutional Court has pointed out that the petitioner had not requested an investigation into whether the Government had reasonably disapproved of the activity report of Jonas Milius, Director of the State Food and Veterinary Service. The Constitutional Court has noted on more than one occasion that the investigation of factual circumstances and data that serve as the ground for not appointing persons to certain positions and dismissing them from certain office (as in the context of this case – negatively assessing the activity of a certain state official) is, first of all, a matter of competence of a court investigating the administrative case.

When investigating the constitutional justice case at issue, the Constitutional Court has noted that, under the Constitution, in deciding the affairs of state governance, the Government may adopt resolutions, as well as decisions and resolutions on the proposals to adopt the acts of European Union law under Article 4 of the Constitutional Act on Membership of the Republic of Lithuania in the European Union.

In the course of the consideration of the case, the Constitutional Court has established that, under Paragraph 1 of Article 41of the Law on the Government, such decisions and resolutions, as regards the proposals to adopt the acts of European Union law, may be passed not necessarily by a majority vote of all members of the Government; the above-mentioned decisions and resolutions may also be passed at a government meeting by a majority vote of the members of the Government attending that meeting.

With regard to the fact that the proposals to adopt the acts of European Union law are also an affair of state governance, as well as to the constitutional nature of the Government, as a collegial institution of executive power, and to the requirement for collegial state institutions to adopt their decisions by a majority vote, which stems from the principle of democratic decision-making consolidated in the Constitution, the Constitutional Court has noted that, under the Constitution, an act that is not adopted by a majority vote of all members of the Government when the affairs of state governance are decided may not be considered as an expression of the will of the Government, as a collegial institution of executive power. Therefore, the rule of a majority vote of all members of the Government, which is established in Paragraph 1 of Article 95 of the Constitution, should also apply to the adoption of the decisions and resolutions of the Government specified in Article 4 of the Constitutional Act on Membership of the Republic of Lithuania in the European Union.

The text of the ruling is available on the website of the Constitutional Court at http://www.lrkt.lt/lt/teismo-aktai/paieska/135/ta1803/content.