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Content updated: 21-05-2019 13:10

The government resolution recognising the economic project to be carried out in the cadastral area of Kariotiškės as a project of state importance declared unconstitutional

12-04-2018

By its ruling passed today, the Constitutional Court has recognised that the government resolution (No 865) of 19 July 2000 on the recognition of the economic project of the cadastral area of Kariotiškės in the village of Moluvėnai in the Trakai district as a project of state importance is in conflict with Paragraphs 2 and 3 of Article 5 and Paragraph 2 of Article 7 of the Constitution and with the constitutional principles of a state under the rule of law and responsible governance.

The doubts of the petitioner – the Supreme Administrative Court of Lithuania – concerning the compliance of this government resolution with the specified provisions of the Constitution were based, among other things, on the fact that, although the said government resolution of 19 July 2000 was published in the Official Gazette Valstybės žinios, neither this government resolution nor any other officially published legal act specified the essential conditions of the project that had been recognised to be of state importance. Without announcing these conditions, it was not clear whether this project was still in the public interest and served the general welfare of the Nation.

Deciding whether the impugned government resolution is in conflict with the Constitution, the Constitutional Court noted that Paragraph 2 of Article 7 of the Constitution (which consolidates the principle of the publicity of law), the constitutional principle of a state under the rule of law, and the principle of the transparency of the activity of public authorities and officials, which stems from the constitutional principle of responsible governance and Paragraphs 2 and 3 of Article 5 of the Constitution (which consolidate the principles of the supremacy of the Constitution and the accountability of state institutions), imply the requirement for the Government, when recognising economic, social, cultural, or other projects to be of state importance, not only to express, in a government resolution, a formal decision to recognise a certain project to be of state importance, but also to establish, in the same resolution (or its constituent parts) or another officially published legal act, the essential conditions for the implementation of the project important to the state, such as the aim, object, implementation deadlines, sources of funding, essential obligations of the developer (developers) of the project, etc.

In this ruling, the Constitutional Court held that the impugned government resolution did not comply with this requirement: the essential conditions for the said economic project of importance to the state, which was to be implemented in the cadastral area of Kariotiškės in the village of Moluvėnai in the Trakai district, had only been specified in the documents accompanying the draft resolution of the Government of 19 July 2000; neither this government resolution nor any other legal act established and published these conditions.

In this ruling of the Constitutional Court, attention was paid to the fact that, when the Government adopted and amended the legal regulation related to projects important for the state, the impugned government resolution was not changed.

In this ruling, the Constitutional Court noted that, under Paragraph 2 of Article 46 of the Constitution, state support for efforts and initiative useful to society must be regulated in such a way that it would comply with the imperative of the general welfare of the Nation, consolidated in Paragraph 3 of Article 46 of the Constitution, and, among other things, that it would not be in conflict with the public interest; under Paragraphs 2 and 3 of Article 46 of the Constitution, while regulating economic activity, the state must take into account the dynamism and variability of the public interest; therefore, it must also adjust the regulation of economic activity accordingly. The Constitutional Court also noted that, according to the principle of responsible governance, as consolidated in the Constitution, all state institutions and officials are obliged to properly implement the powers granted to them by the Constitution and laws.

In the light of the above, the Constitutional Court emphasised that, after certain projects are recognised to be of state importance in accordance with the procedure established in legal acts, Paragraphs 2 and 3 of Article 46 of the Constitution and the constitutional principle of responsible governance give rise to the duty of the Government to exercise effective control over the implementation of these projects, among other things, to recognise (through the procedures and on the grounds set out in legal acts) government resolutions giving certain projects the status of state importance as no longer valid where these projects no longer meet the criteria for declaring them as important to the state.