Presentation by Dr Egidijus Küris, President of the Constitutional Court of Lithuania

Report of
the Constitutional Court of
the Republic of Lithuania
  
To The International Conference
THE POSITION of Constitutional Courts following INTEGRATION INTO
the European Union
 
Bled, Slovenia
30 September – 2 October 2004
 

               Introduction. This report has been prepared for the International Conference “The Position of Constitutional Courts Following Integration Into the European Union”, taking place on 30 September-2 October 2004 in Bled. On the basis of this information, a report will be made in the conference. In the first part of the report, according to the suggested topics, amendments to the Constitution of the Republic of Lithuania related to the integration of Lithuania into the European Union are discussed, while in the second part the role of the Constitutional Court of the Republic of Lithuania following the integration into the EU and the assessment of the Constitutional Court’s readiness for new challenges was dealt with.
 
            General Overview. Article 105 of the Constitution of the Republic of Lithuania adopted by referendum on 25 October 1992 defines the competence of the Constitutional Court of the Republic of Lithuania: the Constitutional Court shall consider and adopt a decision whether the laws of the Republic of Lithuania and other acts adopted by the Seimas are not in conflict with the Constitution of the Republic of Lithuania. The Constitutional Court shall also consider if the following are not in conflict with the Constitution: (1) acts of the President of the Republic; (2) acts of the Government of the Republic. The Constitutional Court shall present conclusions: (1) whether there were violations of election laws during elections of the President of the Republic or elections of members of the Seimas; (2) whether the state of health of the President of the Republic permits him to continue to hold office; (3) whether international treaties of the Republic of Lithuania are not in conflict with the Constitution; (4) whether concrete actions of members of the Seimas and State officials against whom an impeachment case has been instituted are in conflict with the Constitution. The activity of the Constitutional Court is in particular regulated by the Law on the Constitutional Court and the Rules of the Constitutional Court. Some aspects of its activities have been interpreted in rulings of the Constitutional Court (for example, in its rulings, the Constitutional Court stated that it is only the Constitutional Court that enjoys powers to officially interpret the Constitution.[1] The official interpretation means superiority in relation of all other interpretations.)[2] Until now (1 August 2004) the Constitutional Court has received 418 petitions and inquiries, concerning the compliance of 1024 legal acts (parts thereof), norms or provisions with the Constitution and laws. 209 rulings, decisions and conclusions have been adopted by the Constitutional Court. More than 300 legal acts (parts thereof) or norms were recognised to be in conflict with the Constitution. The collections of Constitutional Court rulings are also published in English, while the English translations are published on the internet pages of the Seimas of the Republic of Lithuania[3] and the Constitutional Court of the Republic of Lithuania.[4]
 
 
            I. Amendments to the Constitution of the Republic of Lithuania Related to the Integration of Lithuania into the European Union.
 
            1. Amendments to the Constitution of the Republic of Lithuania.
            The Constitution of the Republic of Lithuania went into effect on 2 November 1992 and during the period that it was valid it was amended eight times: Articles 47 and 119 of the Constitution were amended/supplemented twice each, while Articles 57, 84, 118 and 150 were amended/supplemented once. Some mentioned constitutional amendments/supplements were not related with the process of integration of Lithuania into the EU: in the amendment adopted on 12 December 1996, the term of powers of members of municipal councils was prolonged (for a three-year period); on 20 March 2003 Article 84 of the Constitution was supplemented and its Article 118 was changed: Item 11 of Article 84 was supplemented with a new provision that the President of the Republic of Lithuania shall, upon approval of the Seimas, appoint and dismiss the Prosecutor General of the Republic of Lithuania; in Article 118 the constitutional legal status of the prosecutor’s office was consolidated; the 13 July 2004 amendment of Article 57 established a regular date of elections of the Seimas of the Republic of Lithuania, i.e. at the year of the expiration of the powers of the members of the Seimas on the second Sunday of October. The elections procedure established in this article will be first applied already this year during the elections to the Seimas.
 
            2. Amendments to the Constitution of the Republic of Lithuania related with the integration to the EU, adopted prior accession of Lithuania to the EU.
            2.1. The 20 June 1996 amendment to the Constitution is directly related with the integration to the EU, by which Article 47 of the Constitution was supplemented and which regulates acquisition of land as ownership. On 20 June 2002 Article 119 was amended, which regulated the term of powers of members of municipal councils. On 23 January 2003, Article 47 of the Constitution was amended a second time. This year, on 13 July, a law was adopted whereby the Constitution was supplemented with the Constitutional Act “On the Membership of the Republic of Lithuania in the European Union”, while by the second article whereof Article 150 of the Constitution was supplemented, providing that the 13 July 2004 Constitutional Act “On the Membership of the Republic of Lithuania in the European Union” is a constituent part of the Constitution of the Republic of Lithuania.
            Regarding the EU membership, one first amended two articles of the Constitution: Article 47 of the Constitution, regulating the entities who may acquire the right of ownership of land, forests, and water bodies, as well as Article 119 of the Constitution in which the main provisions of elections of municipal councils are established.
            In 1992, Paragraphs 1 and 2 of Article 47 of the Constitution of the Republic of Lithuania used to provide:
            “Land, internal waters, forests, and parks may only belong to the citizens and the State of the Republic of Lithuania by the right of ownership.
            Plots of land may belong to a foreign state by the right of ownership for the establishment of its diplomatic and consular missions in accordance with the procedure and conditions established by law.”
            It meant that Article 47 of the Constitution prohibited all legal persons, save the above-mentioned exceptions, and everyone who was not a citizen of the Republic of Lithuania to acquire land, internal waters, forests, and parks as ownership.
            On 12 June 1995, the Europe Agreement establishing an association between the European Communities and their Member States, of the one part, and the Republic of Lithuania, of the other part, was signed (the agreement went into effect on 1 February 1998).[5] In pursuance with the provisions of this agreement, also attempting to liberalise purchase and sale of land in Lithuania, one decided to supplement Article 47 of the Constitution. The 20 June 1996 wording of Paragraph 2 of Article 47 of the Constitution read:
            “Municipalities and other national entities, as well as those foreign entities conducting economic activities in Lithuania that are specified by the constitutional law according to the criteria of European and Transatlantic integration, may be permitted to acquire the ownership of non-agricultural land plots required for the construction and operation of buildings and facilities necessary for their direct activities. The procedure, conditions, and restrictions for the acquisition of the ownership of such a plot shall be established by a constitutional law.”[6]
            Along with this amendment to the Constitution, the Seimas, on 20 June 1996, adopted the Constitutional Law on the Entities, Procedure, Terms and Conditions and Restrictions of the Acquisition into Ownership of Land Plots Provided for in Paragraph 2 of Article 47 of the Constitution of the Republic of Lithuania. It was provided for in Article 4 of this law that the criteria of European and Transatlantic integration embarked on by Lithuania shall be met by the foreign entities which, judging by the indicators of their origin, are from: (1) the European Union member states or States Parties to the Europe Agreement which have established the Association with the European Communities and their member states; (2) states which at the moment of the enactment of this Law are members of the Organisation for Economic Co-operation and Development (OECD) or the North Atlantic Treaty Organisation. Although this constitutional amendment and the constitutional law implementing it in part broadened the circle of persons who could acquire land in the Republic of Lithuania, the law establishing its implementation[7] as to its content was not in line with requirements of EU law: citizens of EU Member States could not acquire agricultural land, nor land for construction of non-economic buildings or facilities, there were restrictions for citizens of EU Member States to acquire forest land. In case these provisions had not been amended, the main EU rights would have been infringed, i.e. the freedom of establishment, the freedom of movement as well as the freedom to provide services, and, in addition, the provisions were of discriminatory nature. It is worth mentioning that Article 47 (wording of 1996) of the Constitution in certain aspects used to restrict the right of national entities to acquire land as well: legal persons and municipalities, as well as the above-mentioned foreign entities, were not permitted to acquire agricultural land, while their right to acquire forest land was also restricted. Therefore, on 23 January 2003 the Law on the Alteration of Article 47 of the Constitution was adopted.[8] The now valid Paragraph 3 of Article 47 of the Constitution provides: “In the Republic of Lithuania foreign entities may acquire the ownership of land, internal waters, forests, and parks subsequent to a constitutional law.” On 20 March 2003, the Constitutional Law on the Entities, Procedure, Terms and Conditions and Restrictions of the Acquisition into Ownership of Land Plots Provided for in Paragraph 2 of Article 47 of the Constitution was set forth in a new wording. The title of the law was also changed, and it became the constitutional law on the implementation of Paragraph 3 of Article 47 of the Constitution, in which it was provided that the foreign entities that meet the criteria established in the law have the right to acquire land, internal waters and forests in the Republic of Lithuania under the same procedure and conditions (and in pursuance with the same restrictions) as citizens and legal persons of the Republic of Lithuania. EU citizens fall under the category of foreigners who meet the established requirements and may acquire land in Lithuania under the same rules which are applied to persons of the Republic of Lithuania. It is noteworthy that in the agreement of Lithuania’s accession to the European Union one has defined a seven-year interim period during which the foreign entities meeting the established criteria cannot acquire agricultural and forest land, save the foreigners who have been residing in Lithuania for at least three years and who have been earning their living by means of agriculture, and the foreign legal persons and other foreign organisations that established their branches or subsidiaries in Lithuania. It must be noted that on 28 January 2003 the Seimas adopted the Provisional Law on Acquisition of Agricultural Land which established special conditions for acquisition of agricultural land for all persons (both Lithuanian and foreign ones), as, for instance: there is a requirement for a person who has acquired a certain plot of agricultural land as ownership to move to live to the county in which the acquired land is situated; maximum amounts of agricultural land permitted to be acquired by natural and legal persons; certain categories of persons are granted the right of priority in acquisition of agricultural land, etc. On 5 March 2003, the Constitutional Court received a petition of a group of members of the Seimas as regards the compliance of this law with the Constitution. The case is being prepared for investigation in a public hearing of the Constitutional Court. On 15 July 2004, the Seimas of the Republic of Lithuania adopted a new wording of the Provisional Law on Acquisition of Agricultural Land, which diminished the number of restrictions to acquire agricultural land as ownership. At present, there is only an established maximum agricultural land plot permitted for acquisition, the sequence in the course of purchase of land by right of priority, as well as the prohibition to transfer land within 5 years of the day of its acquisition from the state by right of priority. The Constitutional Court may, subsequent to Article 69 of the Law on the Constitutional Court, adopt a decision to dismiss the initiated legal proceedings in case the legal act due to the compliance of which with the Constitution one applied to the Constitutional Court is annulled and when it is applied to by an entity that is not a court. However, in each particular case one adopts an individual decision.[9] The Constitutional Court has not adopted a decision to dismiss the legal proceedings in this case yet.
            Prior to 20 June 2002, Article 119 of the Constitution used to provide that only citizens of the Republic of Lithuania may elect members of municipal councils. Such provision was not in line with Article 19 of the Treaty Establishing the European Community, which provides: “Every citizen of the Union residing in a Member State of which he is not a national shall have the right to vote and to stand as a candidate at municipal elections in the Member State in which he resides, under the same conditions as nationals of that State.” Therefore, Article 119 of the Constitution was amended by providing that the members of the 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 electoral right by secret ballot.[10] Thus, the right (both active and passive) to participate in elections to municipal councils is guaranteed not only to citizens of the Republic of Lithuania, but also to other residents of the administrative territorial unit, while the appearance of this right is not linked with citizenship. Along with this constitutional amendment, one adopted the Republic of Lithuania Constitutional Law on the Procedure of the Application of the Law on the Alteration of Article 119 of the Constitution[11] which was recognised by the Constitutional Court in the ruling of 24 December 2002 to be in conflict with the Constitution.[12]
            2.3. Were these amendments of the Constitution of the Republic of Lithuania sufficient, and were amendments of other constitutional provisions necessary in order to integrate the bases of Lithuanian law into the EU?
            There had been long discussions in Lithuania as regards the necessity to regulate transfer of part of the competence of national institutions to the EU in the Constitution. In the areas specified in the treaties establishing the EU and other UE treaties, upon which the European Union is based, the EU enjoys exceptional competence (agricultural policy, commerce policy, fishery, legal regulation of internal market, etc.), and under the subsidiarity principle the Community takes actions in the areas that do not belong to its exclusive competence, however, the member states are unable to properly reach the goals of the proposed action, while the Community, due to the extent or effect, might reach them more easily. While implementing their competence in these areas, EU institutions enjoy the right to issue mandatory legal acts: regulations, directives, decisions, while this means that member states transfer part of their legislative competence to these institutions. Under Paragraph 3 of Article 138 of the Constitution of the Republic of Lithuania, international treaties which are ratified by the Seimas of the Republic of Lithuania shall be a constituent part of the legal system of the Republic of Lithuania. Thus, some Lithuanian lawyers assumed that acts-regulations of direct application, adopted by EU, would be part of the legal system of the Republic of Lithuania, since this would stem from the treaties ratified by the Seimas and having the power of the law. However, even though keeping to the position stated above, the alteration of the Constitution of the Republic of Lithuania was necessary also due to another reason. Articles 4 and 5 of the Constitution provide for execution of supreme sovereign powers and implementation of state authority only directly and through directly elected or appointed representatives, i.e. the Seimas, the Government or courts. The Constitution did not provide for transfer of implementation of such powers for EU. There appeared discussions whether, keeping to the opinion of the Court of Justice of the European Communities (hereinafter—the CJEC) stated in Costa v. ENEL (1964) that the transfer by the states part of their competence means that member states limited their sovereign rights, or whether it is transfer only part of their competence, which does not mean loss or limitation of independence, and that it means that EU institutions are delegated part of the state competence and thus it is agreed to implement sovereign rights in certain areas together with other EU member states.[13] A general conclusion was drawn that the alteration of the Constitution is necessary in any case. The first draft amendment to the Constitution was submitted to the Government as far back as 13 February 2001, however, the issue of delegation of the competence to the EU was not solved until the accession of Lithuania to the EU.
 
            3. The amendments to the Constitution of the Republic of Lithuania after accession of Lithuania to the EU.
            3.1. As mentioned, the process of drafting of the constitutional amendments related to Lithuanian membership in the EU started long ago: in 1998, a working group was established under instruction of the Board of the Seimas, which had to draft legal acts necessary for accession of Lithuania to the EU. By its 1 March 2001 Resolution, the Seimas formed a commission for drafting amendments to the Constitution. There were discussions whether the supplements and amendments of the Constitution of the Republic of Lithuania related with the accession of Lithuania to the EU ought to be decided by referendum. In part this issue was decided when the Seimas, on 4 June 2002, adopted a new Republic of Lithuania Law on Referendum, which came into force on 1 January 2003, and which did not provide that a referendum is necessary for the said amendments to the Constitution of the Republic of Lithuania.
            3.2. Several draft amendments to the Constitution were prepared, proposing changes to Article 136 (participation of the Republic of Lithuania in international organisations) and Article 138 (ratification (denouncing) of international treaties and their legal status) of the Constitution. According to their legal nature, the treaties establishing the EU are international treaties. The relation between norms of international treaties and those of national law was established in the Constitution from the very beginning of its validity. Paragraph 3 of Article 138 of the Constitution provides that international treaties which are ratified by the Seimas of the Republic of Lithuania shall be a constituent part of the legal system of the Republic of Lithuania. Paragraph 2 of Article 11 of the 22 June 1999 Republic of Lithuania Law on International Treaties reads: “If a ratified treaty of the Republic of Lithuania which has entered into force establishes norms other than those established by the laws, other legal acts of the Republic of Lithuania which are in force at the moment of conclusion of the treaty or which entered into force after the entry into force of the treaty, the provisions of the treaty of the Republic of Lithuania shall be applicable.”[14] As far back as 17 October 1995,[15] in its ruling construing the constitutional provision “international treaties which are ratified by the Seimas of the Republic of Lithuania shall be a constituent part of the legal system of the Republic of Lithuania”, the Constitutional Court pointed out that under the Constitution it is only the legislator who can decide, by way of ratification, which act of international law is a constituent part of the legal system of the Republic of Lithuania that has the power of the law.[16] Still, after discussions that lasted for several years one reached a somewhat different way of solution of this issue as regards the legal technique: it was decided to adopt the Constitutional Act “On the Membership of the Republic of Lithuania in the European Union”.[17] In Lithuania, a constitutional law is a legal act of higher legal power than ordinary laws, they are kind of “variety” of the organic law. They are different from other laws, first of all, by the procedure of their adoption and amendment. Constitutional laws are adopted when more than half of all members of the Seimas vote for them, while amended by at least 3/5 majority vote of all members of the Seimas. In its ruling of 2 April 2001,[18] the Constitutional Court noted that, under the Constitution, constitutional laws are ones which are directly referred to as such in the Constitution and are adopted pursuant to the procedure established in Paragraph 3 of Article 69 of the Constitution, as well as the laws entered into the list of constitutional laws and adopted pursuant to the procedure established in Paragraph 3 of Article 69 of the Constitution. The said procedure of adoption and alteration of laws is not applied to amendments to the Constitution, which can also be named constitutional laws. However, in its 24 December 2002,[19] the Constitutional Court presented its interpretation that a constitutional law may not be in conflict with the Constitution, it cannot restrict or deny an opportunity to directly apply the Constitution. Besides, before their adoption, constitutional laws must be entered into the list of constitutional laws. Paragraph 1 of Article 1 of the Constitutional Act “On the Membership of the Republic of Lithuania in the European Union” the delegation of part of state competence has been decided: “The Republic of Lithuania, being a Member State of the European Union, shares or entrusts the competence of state institutions to the European Union in the areas specified by treaties, upon which the European Union is based, and to the extent that it would, together with other Member States of the European Union, commonly fulfil the membership obligations in these areas and enjoy the membership rights.”
            3.3. The Constitutional Act “On the Membership of the Republic of Lithuania in the European Union” also regulates the issue of relation of national and EU law.
            Paragraph 2 of Article 1 of the Constitutional Act “On the Membership of the Republic of Lithuania in the European Union” provides: “The norms of the European Union law are a constituent part of the legal system of the Republic of Lithuania. If it concerns the treaties upon which the European Union is based, the norms of European Union law shall be applied directly, while in case of collision of legal norms, the former shall enjoy supremacy over the laws and other legal acts of the Republic of Lithuania.” Thus, a conclusion could be drawn that primary sources of EU law have become a constituent part of the legal system of Lithuania and their status is not different from the rest of international treaties ratified by Lithuania, while in case of collision such EU law norms enjoy supremacy over laws and other legal acts of the Republic of Lithuania. From the standpoint of the object of constitutional review, it must be emphasised that the notion “shall enjoy supremacy over the laws and other legal acts of the Republic of Lithuania” does not include the Constitution itself. It must be noted that Article 7 of the Constitution of the Republic of Lithuania provides: “Any law or other act, which is inconsistent with the Constitution, shall be invalid.” This article may be amended only by referendum.
            3.4. Is constitutional review of primary sources of EU law possible? In Lithuania in this case one did not employ preliminary review. Under Article 105 of the Constitution of the Republic of Lithuania, the Constitutional Court shall present conclusions whether international treaties of the Republic of Lithuania are not in conflict with the Constitution. (The Constitutional Court has presented a conclusion once, i.e. on 24 January 1995, concerning the compliance of Articles 4, 5, 9, 14 as well as Article 2 of Protocol No. 4 of the European Convention for the Protection of Human Rights and Fundamental Freedoms with the Constitution of the Republic of Lithuania). [20]
            Is succeeding control of ratified international treaties possible? Some justices are of the opinion that at the Constitutional Court it is possible to investigate the constitutionality of these treaties, as of any other ratified treaty, on the grounds of Paragraph 1 of Article 7 of the Constitution which stipulates that “any law or other act, which is inconsistent with the Constitution, shall be invalid”. The Constitutional Court could also investigate whether the law whereby the treaty was ratified is not in conflict with the Constitution according to the procedure, established by the Constitution, of adoption, signing, publishing or entry into effect, as well as to the form. In the opinion of some justices of the Constitutional Court, it would be possible to investigate the content of the treaty as well, since the law on ratification is inseparable part of the ratified international treaty, therefore in the course of the investigation of the law whereby the treaty was ratified, one necessarily would have to investigate the treaty (its provisions) itself.[21]
            Still, it would be hard to imagine a situation where the Constitutional Court, after Lithuania has become an EU member, has to present a conclusion concerning the constitutionality of the accession of Lithuania to the EU, i.e. to implement a posteriori constitutional review, both in view of the principle pacta sunt servanda of international public law, and the embarrassments which would arise in case the Constitutional Court expressed an opinion that the provisions of the treaty on accession of Lithuania into the EU are in conflict with the Constitution of the Republic of Lithuania. Some justices of the Constitutional Court are of the opinion that “one could speak only about ‘special’ superiority of European Union law. Since such superiority is grounded only on the fact that the countries establishing the EU or acceding to it, basing themselves on the opportunities consolidated in their constitutions, entrusted to the European Union to solve certain questions. And it is possible to speak about the priority of European Union law only within the limits provided for in the treaties establishing the European Communities and the European Union.”[22]
            In this context one should mention also the EU Constitutional Treaty. In Lithuania there may a problem as for the procedure of its ratification, i.e. should it be ratified in the Seimas (Parliament) or by referendum? Would it be sufficient, under the Lithuanian Constitution, to ratify the EU Constitutional Treaty in the Seimas (Parliament) of the Republic of Lithuania? Article 9 of the Constitution of the Republic of Lithuania provides that the most significant issues concerning the life of the State and the Nation shall be decided by referendum. The Constitution does not provide as to who enjoys the right to determine which issues of the life of the State of Lithuania and the Nation are to be attributed to most significant ones. The law on referendum provides only for the subjects who have the right of initiative concerning announcement of a referendum. They are citizens of the Republic of Lithuania and the Seimas of the Republic of Lithuania. However, in case the Seimas ratified the EU Constitutional Treaty, then, in the process of its ratification a referendum may be announced in case at least 300 thousand citizens enjoying the electoral right request so (the right of citizens’ initiative to announce a referendum is consolidated in Paragraph 3 of Article 9 of the Constitution). In addition, after the EU Constitutional Treaty is ratified in the Seimas, there remains an opportunity to investigate its constitutionality at the Constitutional Court in pursuance with Paragraph 1 of Article 7 of the Constitution. At the Constitutional Court one could investigate whether the law whereby the treaty was ratified is not in conflict with the Constitution according to the procedure, established in the Constitution, of adoption, signing, publishing or entry into effect, as well as to its form, and, in the opinion of some justices, according to its content. If the Constitutional Court investigated the treaties, it, alongside, would become a new interpreter of the ratified international treaty, including the treaties which have already been interpreted by the Court of Justice of the European Communities. A great many of lawyers have stated their position that upon the entry of a ratified international treaty into effect, in case one did not resort to preliminary review prior to the entry of the treaty into effect, in Lithuania, the treaty, while taking account to the 1969 Vienna Convention on the Law of Treaties, would be considered to be in conformity with the Constitution. However, there is not any case-law of the Constitutional Court on this issue.
            3.5. It is possible that the Constitutional Court will also investigate the compliance of a substatutory act which is ascribed to its jurisdiction (a Government resolution, a decree of the President of the Republic) with an international treaty (or a law whereby this treaty was ratified). There used to be an opinion in the Constitutional Court that the Court should not investigate the compliance of such an act with a ratified international treaty, however, there are different opinions. So far the Constitutional Court has not investigated any cases of such kind. However, it has received one petition requesting to investigate the compliance of a law with a ratified international treaty and one petition requesting to investigate the compliance of a decree of the President of the Republic with an ratified international treaty. One petition was received from the Vilnius Regional Administrative Court, requesting to investigate whether the Republic of Lithuania Law “On the Procedure of Reorganisation and Liquidation of Establishments of Culture” is not in conflict with the Constitution, the Law on Local Self-government, and the European Charter of Local Self-government, and whether a Government resolution (which, according to the petitioner, is based on the above-mentioned law) is not in conflict with the Constitution, the Law on Local Self-government, and the European Charter of Local Self-government. On 25 April 2002, on the basis of Paragraph 3 of Article 138 of the Constitution and its ruling of 17 October 1995, the Constitutional Court adopted a decision whereby it refused to consider the request to investigate the compliance of the Republic of Lithuania Law “On the Procedure of Reorganisation and Liquidation of Establishments of Culture” with the European Charter of Local Self-government. The Constitutional Court argued that the treaties ratified by the Seimas acquire the power of a law, therefore the Constitutional Court does not investigate the conformity of a law to a legal act having the power of a law.[23] The Constitutional Court received the other petition from the Vilnius Regional Court, requesting to investigate whether a decree of the President of the Republic is not in conflict with Paragraph 2 of Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.[24] Thus, one is to draw a conclusion that also a reverse option of constitutional review is possible. Investigating the compliance of such acts with the ratified treaties, the Constitutional Court would kind of become an interpreter of the doctrine of the Court of Justice of the European Communities or the European Court of Human Rights. One may discuss whether the Constitutional Court would become a new interpreter of the ratified international treaty, of course, on the national level, as regards the issues not dealt with by the above-mentioned courts.
            3.6. Regulations - secondary sources of EU law - in the sense of the Constitutional Act “On the Membership of the Republic of Lithuania in the European Union” stem from the Treaties upon which the EU is based, thus, according to the provisions of the Constitutional Act, they will be applied directly, while in case of collision they will enjoy supremacy over laws and other legal acts of the Republic of Lithuania. Is investigation concerning their compliance with the Constitution at the Constitutional Court possible? There may arise a question concerning the constitutionality of the regulations adopted prior to the accession of Lithuania to the EU. The regulations adopted before 1 May 2004 are not accessible in Lithuanian due to organisational and financial problems of translation. The first volumes of the Official Journal of the European Union, subsequent to the Council Regulation in part amending Regulation (EEC, Euratom, ECSC) No. 2290/77 will be published gradually from 1 May 2004 until the end of 2004. Meanwhile, Paragraph 2 of Article 7 of the Constitution of the Republic of Lithuania provides: “Only laws which are published shall be valid.” In its ruling of 29 October 2003,[25] the Constitutional Court interpreted that the notion “laws” which is employed in Paragraph 2 of Article 7 of the Constitution should not be construed only literally. It should be construed in an expanding manner, as a notion that includes not only legal acts, which have the power of the law, but also other legal acts. Still before, in its ruling of 29 November 2001,[26] the Constitutional Court held that legal acts adopted by the Government must be published regardless of whether the legal acts adopted by the Government are normative or individual, as well as regardless of the fact as to what entities or circles of entities they are meant. In its ruling of 29 October 2003, the Constitutional Court also noted that a legal act must be published in its entirety (with all its constituent parts), publicly, in Lithuanian. However, in Lithuania one began to publish the regulations publicly (on an internet page) in Lithuanian which were adopted only as of 1 May 2004, while there is only a small part of the regulations adopted prior to 1 May 2004 available in Lithuanian. Then, should one apply Paragraph 2 of Article 7 of the Constitution of the Republic of Lithuania, which stipulates that only laws which are published shall be valid? In its rulings the Constitutional Court has not expressed its opinion as regards this issue.
            3.7. In what way are Lithuanian law-making entities going to participate in the process of passing of EU legal acts? In order to ensure the participation of Lithuania as an EU Member State in adoption of acts by the European Union Council, the Constitutional Act “On the Membership of the Republic of Lithuania in the European Union” provides: “The Government shall inform the Seimas about proposals to adopt acts of European Union law. The Government shall consult with the Seimas concerning the proposals to adopt acts of European Union law, which regulate the areas that, under the Constitution of the Republic of Lithuania, are related with the competence of the Seimas. The Seimas may recommend the position of the Republic of Lithuania to the Government as regards these proposals. The Seimas Committee on European Affairs and the Committee on Foreign Affairs may, under the procedure established by the Statute of the Seimas, present the opinion of the Seimas to the Government concerning the proposals to adopt acts of European Union law. The Government assesses recommendations or opinions presented by the Seimas or its committees and informs the Seimas about their execution under procedure established by legal acts.”
 
 
            II. The Role of the Constitutional Court of the Republic of Lithuania Following the Integration into the EU and the Assessment of the Constitutional Court’s Readiness for New Challenges.
 
            1. The role of the jurisprudence of the Constitutional Court in the process of Lithuania’s “becoming more European” till membership of Lithuania in the EU.
            The influence of the Constitutional Court on the integration processes before Lithuania became an EU member manifested itself through the link of the jurisprudence of the Lithuanian Constitutional Court with the European Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter—the Convention) and jurisprudence of the European Court of Human Rights (hereinafter—the ECHR). From the very beginning of the activities of the Constitutional Court, the text of the Convention and ECHR decisions were a source of inspiration of decisions of the Constitutional Court.[27] After the Convention had been ratified, it, subsequent to Article 138 of the Constitution, became part of the legal system of Lithuania. International treaties in the Lithuanian system of legal sources have the power of the law (this was also established by the Constitutional Court of the Republic of Lithuania in its conclusion),[28] therefore the Constitutional Court does not investigate the compliance of laws with the Convention, as well as with other laws. However, the Court, while considering the constitutionality of laws or substatutory acts, always takes account of the practice of the ECHR in the course of interpretation of the content of the basic principles of human rights and law. On the other hand, the reflection of the jurisprudence of the ECHR in the decisions of the Constitutional Court is important not only to the integration process before membership of the Republic of Lithuania in the EU, but also after Lithuania became an EU member. Paragraph 2 of Article 6 of the Treaty on European Union provides that the Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, as general principles of Community law. In other words, the Convention and the case-law of the ECHR are directly related with EU law. The Court of Justice of the European Communities, as well as national courts, directly applies the convention, while taking account into the case-law formulated in ECHR decisions.[29] In this regard the important thing is that the Constitutional Court of the Republic of Lithuania has noted many a time, for instance in its rulings of 8 May 2000, 19 September 2002, 23 October 2002, 24 March 2003, and 4 July 2003,[30] that the jurisprudence of the European Court of Human Rights as a source of interpretation of law is important also to interpretation and application of Lithuanian law. In its rulings, the Constitutional Court of the Republic of Lithuania directly referred to 44 cases of the European Court of Human Rights and 4 decisions of the European Commission of Human Rights.
            On the other hand, even before the Lithuanian membership in the European Union, in its rulings the Constitutional Court of the Republic of Lithuania used to give references to EU legal acts. For example, in the 8 December 1998 ruling, the Constitutional Court, while considering the constitutionality issue of the death penalty provided for by the sanction of Article 105 of the Criminal Code, referred to the 13 June 1997 Resolution of the European Parliament. In the 6 October 1999, while deciding whether certain provisions of the Law on Telecommunications were not in conflict with the Constitution, the Constitutional Court also referred to the 28 June 1990 Directive 90/388/EEC on competition in the markets for telecommunications services adopted by the European Commission.[31] In its 14 March 2002 ruling on the compliance of the Law on Pharmaceutical Activities with the Constitution, the Constitutional Court also referred to the example of the European Union (and its individual countries), but as “a reverse example”—absence of direct regulation. The Constitutional Court noted that European Union law does not regulate specific issues of the ownership of pharmacies and allows the member states to decide themselves how to regulate the relations of the ownership of pharmacies.[32] Although the jurisprudence of the Constitutional Court holds almost no references to the jurisprudence of the European Court of Justice, the general principles of law like proportionality, legal certainty, protection of legitimate expectations, equality of persons and non-discrimination, also the principles serving as the basis for consolidation of procedural rights (the right to be heard, the right to defence, effective judicial protection, etc.), protection of privacy, etc., are formulated by the Constitutional Court in a very similar fashion as in the jurisprudence of the European Court of Justice. The convergence (“identity” would nearly be the direct word) of general principles of law generated by the jurisprudence of the European Court of Justice and the jurisprudence of the Constitutional Court of the Republic of Lithuania witnesses also the fact that the mentioned principles, being authentic principles of EC/EU law and authentic principles of Lithuanian law, arise from the same legal values of Europe and belonging of the member states of the European Unions and Lithuania to the same legal civilisation—the Western legal tradition.[33]

 
            2. The future role of the Constitutional Court in solving constitutionality issues of the new set of national law, which was supplemented with norms of EU law.
            2.1. After Lithuania has become an EU member, the role of the Constitutional Court will depend upon the position of the Constitutional Court that it will take concerning its competence to consider issues of compatibility of norms of EU law and those of national law and regarding the relation of the Constitutional Court with the Court of Justice of the European Communities.
            One of fundamental EU law principles is the principle of superiority of EU law in regard of national law. The prevailing opinion of constitutional courts (monistic conception) is that this superiority is valid both in regard of national laws and substatutory as well as constitutional provisions. Therefore, there should be no issue of the compliance of norms of EU law with the Constitution. There is also another opinion, similar to that of the Spanish Constitutional Court, according to which two legal systems co-exist in parallel in the state, i.e., norms of EU law constitute an autonomous, however, non-isolated set of norms. The constitutional courts enjoy competence to present conclusive interpretation of internal legal norms, while the CJEC—of EU law, since “the European Union, its institutions and its law would be nothing without the will of its member states. European Union law is derived from the will of Member States (and it is not important that the Treaty Establishing the European Community and the Treaty on European Union are called primary law). Another important circumstance is that the establishing treaties themselves emphasise the respect for national constitutional traditions and the principle of the rule of law.”[34] Having this in mind, the practice formulated by the German Federal Constitutional Court according to which the issue of the constitutionality of norms of EU law might be considered, first, where provisions of EU law violate fundamental human rights, and, second, where EU institutions, when adopting mandatory acts, overstep the competence ascribed to them in the treaties establishing the EU.[35]
            2.2. What will be the relation between the Constitutional Court of the Republic of Lithuania and the CJEC? In the opinion of the Court of Justice of the European Communities, in case of doubt whether EU institutions did not exceed their competencies, it is only the CJEC that is competent to decide this issue, while national constitutional courts cannot decide the compliance of EU law with national constitutions before they apply to the CJEC.[36] However, a question arises whether the Constitutional Court falls in the category of courts provided for in Article 234 of the Treaty Establishing the European Community. Paragraph 3 of Article 234 of the Treaty Establishing the European Community provides that where a question of interpretation of the this treaty or of other acts of EU laws is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court of Justice. The applicability of this norm to constitutional courts in various states is not the same.[37] This issue is a topic of discussion in Lithuania as well. It is a complex matter to say as to what position will be taken by the Constitutional Court of the Republic of Lithuania on this issue. Under the Constitution, decisions of the Constitutional Court of the Republic of Lithuania are final and not subject to appeal, it, doubtless to say, is the court of last instance, however, so far there is no final answer to the question whether, in pursuance with EU law, it (as well as other national constitutional courts) is to be regarded as a court of the last instance of such kind, which must apply to the CJEC for a preliminary ruling.[38] Still the position expressed by the former President of the CJEC, which originated on the basis of Articles 10 and 220[39] as well as aforementioned Article 234 of the EC Treaty in respect of this issue, is clear and non-equivocal: “Under certain circumstances, the interpretation of Community law or the question of validity of a Community legal act might be decisive for the solution of a dispute before a constitutional court. In such case, the constitutional court would be under an obligation to refer such a question to the Court of Justice for a preliminary ruling. In other words: the specific functions of constitutional courts can not exempt them from the obligation established by Article 234 of the EC Treaty.”[40] It is obvious that the Constitutional Court of Lithuania will have to search for a balance between the principles of the Community law and the superiority of the Constitution and this task will not be easy as the purpose and the mission of the Constitutional Court of Lithuania is clearly defined—it is to guarantee the supremacy of the Constitution of the Republic of Lithuania in the legal system as well as constitutional legality (Article 1 of the Law on the Constitutional Court). Perhaps, at least theoretically, a so-called “materially limited concept of superiority of the Community law”, which was proposed by the Polish scientist P. Czarny and based on the fact that a prohibition against the application of legal acts of the Community, which originated from a constitutional internal system, is of limited type as it may not be linked with the situation where the “backbone” of the Constitution is violated, seems acceptable. In each case a justice of constitutional court would remain a guardian of the Constitution and the constitutional identity first of all.[41] There was also an opinion at the Constitutional Court (not sustained, however) that the most useful and simple way was to incorporate the norms of national Constitutions into the European Constitution, which would establish that “the national constitutions are constituent part of the European Constitution”.[42] In this case a new mechanism of the unified European constitutional order and protection of the human rights and other fundamental principles would be created. The Court of Justice could officially interpret the European Constitution. This institution would form the official EU constitutional doctrine. When hearing the cases related with a member state, the CJEC should take into account the national Constitution as a part of the European Constitution and the jurisprudence of the national Constitutional Court. The national constitutional courts should guarantee the supremacy of the national Constitution and the European Constitution within the national legal system having taken account of the CJEC practice.
            As it was already mentioned, in Lithuania the Constitutional Act related to the accession to the EU has been adopted after the accession to the EU. A specific situation occurred in Lithuania as it may become necessary to decide an additional dilemma linked with the fact that the said Constitutional Act “On the Membership of the Republic of Lithuania in the European Union” became effective on 14 August 2004 only. Therefore, for almost three and a half months after the accession of Lithuania to the EU the legal norms of the European Union were not a constituent part of the legal system of the Republic of Lithuania. Therefore, if a question of constitutionality of such norms arises, we would have to decide whether their application was not in violation of the Constitution.
            3. Qualification of the Justices and other servants of the Constitutional Court in the EU Law
            It is obvious that within the context of pluralism of the opinions and new challenges a constant deepening of knowledge both in EU law and protection of human rights as well as comparative constitutional law is needed in order to make the servants of the Constitutional Court able to dully prepare material helping the justices of the Constitutional Court in making right decisions. The justices and employees of the Constitutional Court had appropriate opportunities to participate at the conferences and seminars, during which the EU law issues were discussed.
            Worth mentioning are the following conferences and seminars held during the previous years: annual seminars of the supreme courts, the supreme administrative courts and the constitutional courts of Baltic countries, held since 1999, namely the annual seminar of the supreme courts, the supreme administrative courts and the constitutional courts of Baltic countries was held on 6-7 June 2002, and one of its topics was “Integration and Comparability of National Judicial Systems of EU Candidate States With the EU Judiciary System and Practices”, on 25-26 April 2003 the annual seminar of the constitutional courts, the supreme courts and the supreme administrative courts of Estonia, Finland, Latvia, Lithuania and Sweden on two topics: “Judicial Review of Legislation and Administrative Acts in the Context of Euro-integration” and “Relations Between the Courts of General Jurisdiction, Constitutional Courts and Administrative Courts”, was held in Vilnius, on 19-20 April 2004 already the sixth annual seminar of the supreme courts, the supreme administrative courts and the constitutional courts of Baltic countries “Effects of EU Membership to the Judiciary” took place. On the occasion of the 10th anniversary of founding the Constitutional Court of the Republic of Lithuania the international conference “Constitutional Justice and the Rule of Law”, during which the issues related to EU law were discussed also, was held in Vilnius on 4 September 2003. The following bilateral conferences aimed specifically at the analysis of the role of national constitutional courts and its perspectives in the process of the Euro-integration were held: on 24-27 June 2003 the conference between the Constitutional Court of the Republic of Lithuania and the Constitutional Tribunal of Poland “The Constitution, the National Law and the EU Law” was held in Druskininkai, and on 26-28 May 2004 the conference between the Constitutional Court of the Republic of Lithuania and the Constitutional Court of the Republic of Latvia “The Role of Constitutional Courts in the Context of EU Membership” was held in Palanga. We may conclude that participation of European countries with greater experience in the (international, bilateral, ad hoc) conferences and any other their assistance would be especially valuable.
 
 

                                                                 Annex
 
Article 7 of the Constitution of the Republic of Lithuania
            Any law or other act, which is inconsistent with the Constitution, shall be invalid.
            Only laws which are published shall be valid.
            Ignorance of the law shall not exempt one from liability.
 
Article 47 of the Constitution of the Republic of Lithuania
            The right of exclusive ownership of the subterranean, as well as internal waters, forests, parks, roads, historical, archaeological and cultural objects of State importance shall belong to the Republic of Lithuania.
            The exclusive rights to the airspace over its territory, its continental shelf, and the economic zone in the Baltic Sea shall belong to the Republic of Lithuania.
            In the Republic of Lithuania foreign entities may acquire the ownership of land, internal waters, forests, and parks subsequent to a constitutional law.
            Plots of land may belong to a foreign state by right of ownership for the establishment of its diplomatic and consular missions in accordance with the procedure and conditions established by law.
 
Article 119 of the Constitution of the Republic of Lithuania
            The right of self-government shall be guaranteed to the administrative units of State territory which are provided for by law. It shall be implemented through corresponding municipal councils.
            The members of the 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 electoral right by secret ballot.
            The procedure for the organisation and activities of self-government institutions shall be established by law.