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Content updated: 21-05-2019 13:07

The provision of the Law on Fisheries that obliged the Ministry of Agriculture to establish criteria for granting the right to a fishing quota was in conflict with the Constitution

24-05-2018

By its ruling passed today, the Constitutional Court has recognised that Paragraph 4 of Article 142 of the Law on Fisheries, insofar as this paragraph commissioned the Ministry of Agriculture to establish criteria for granting economic operators the right to a fishing quota for commercial fishing in a certain inland water body, was in conflict with the Constitution.

The doubts of the petitioner as to the constitutionality of the impugned legal regulation were essentially based on the fact that the legislature, by commissioning the Ministry of Agriculture to establish the above criteria, did not comply with the requirement, which stems from the Constitution, that the essential conditions of economic activity, as well as restriction of freedom of economic activity, must be established in a legal act ranking not lower than a law.

The Constitutional Court held that, under Article 54 of the Constitution, the natural environment, including wildlife, is a national value of general significance. Ensuring its protection and the rational use of its resources is a constitutional duty of the state.

The Constitutional Court noted that freedom of economic activity, thus, including that of commercial fishing, as guaranteed under Paragraph 1 of Article 46 of the Constitution, is not absolute. In fulfilling its duty, arising from Paragraph 3 of Article 46 and Article 54 of the Constitution, to regulate the economic activity related to the use of natural resources in such a way that it serves the general welfare of the Nation, among other things, that it ensures the protection of the natural environment and the rational use of natural resources, including wildlife, the state may also impose restrictions on fishing activities. Under the Constitution, restrictions that have an essential impact on fishing as an economic activity must be established only by means of a law.

In this ruling, the Constitutional Court recalled the fact that the constitutional principle of a state under the rule of law and the provision “The scope of power shall be limited by the Constitution” of Paragraph 2 of Article 5 of the Constitution prohibit substatutory legal acts from regulating relations that, under the Constitution, must be regulated by means of laws; thus, the Seimas may not commission the Government or other institutions to regulate the said relations by means of substatutory acts.

As noted in the ruling, according to the impugned provision of the Law on Fisheries, the commercial fishing by economic operators in inland water bodies was restricted by granting the right to a fishing quota. Granting this right was a prerequisite for commercial fishing in a certain inland water body. The aforementioned provision of the law established the environmental, social, and/or economic nature of the criteria for granting the right to a fishing quota, provided examples of such criteria, and commissioned the Ministry of Agriculture to establish the specific criteria (exhaustive list thereof). Consequently, the impugned legal regulation created the preconditions for imposing by means of a substatutory legal act, but not by means of a law, restrictions on freedom of fishing as an economic activity, which is guaranteed under Paragraph 1 of Article 46 of the Constitution, where the said restrictions had an essential impact on this activity; thus, the impugned legal regulation did not comply with the requirement, stemming from the constitutional principle of a state under the rule of law and Paragraph 2 of Article 5 of the Constitution, that substatutory legal acts must not regulate those social relations that, according to the Constitution, must be regulated by means of a law.

In view of all of this, the Constitutional Court recognised that Paragraph 4 of Article 142 of the Law on Fisheries, insofar as this paragraph commissioned the Ministry of Agriculture to establish criteria for granting economic operators the right to a fishing quota for commercial fishing in a certain inland water body, had been in conflict with Paragraph 2 Article 5 and Paragraph 1 of Article 46 of the Constitution, as well as with the constitutional principle of a state under the rule of law.

The Constitutional Court also drew attention to the fact that, in regulating economic activity, substatutory legal acts can be adopted, which detail and particularise the norms of laws, as well as regulate their implementation. Having established, in the Law on Fisheries, criteria for determining the right of an operator to engage in commercial fishing in inland waters, the meaning of individual criteria may be specified in substatutory legal acts, in accordance with the limits defined in the law.