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Case No Case No. 17/95 THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA R U L I N G On the compliance of the Republic of Lithuania Government 17 July 1995 Resolution No. 987 “On selling and lease

Article 14

and Article 18 of the Law of the Republic of Lithuania on the Governing of the County 22 October 1996, Vilnius The Constitutional Court of the Republic of Lithuania, composed of the justices of the Constitutional Court Egidijus Jaraðiûnas, Kæstutis Lapinskas, Zigmas Levickis, Augustinas Normantas, Vladas Pavilonis, Jonas Prapiestis, Pranas Vytautas Rasimavièius, Teodora Staugaitienë, and Juozas Þilys, the secretary of the hearing - Daiva Pitrënaitë, the petitioner - Andrius Kubilius, a member of the Seimas and the representative of a group of the members of the Seimas of the Republic of Lithuania, the party concerned - Julius Jurginis, the secretary of the Ministry of Public Administration Reforms and Local Government Affairs, Miroslavas Gruodis, the head of the Legal Expertise Division of the Ministry of Public Administration Reforms and Local Government Affairs, Stanislovas Naujalis, a deputy director of the Department of the Territorial Planning of the Ministry of Construction and Urban Planning, they all are representatives of the Government of the Republic of Lithuania, pursuant to

Article 102

of the Constitution of the Republic of Lithuania and

Article 1

of the Law of the Republic of Lithuania on Constitutional Court, in its public hearing on 26 September 1996 conducted the investigation of Case No. 17/95 subsequent to the petition submitted to the Court by the petitioner - a group of the members of the Seimas of the Republic of Lithuania - requesting to investigate if the Republic of Lithuania Government 17 July 1995 Resolution No. 987 “On selling and lease of state land plots for non-agriculture activities” is in compliance with Part 2 of Article 128, Articles 119 and 120, Part 2 of Article 77 and Part 4 of Article 46 of the Constitution of the Republic of Lithuania as well as with Articles 97, 98, 99 of the Civil Code of the Republic of Lithuania, items 1 and 3 of Article 9,

Article 14

and Article 18 of the Law of the Republic of Lithuania on the Governing of the County. The Constitutional Court has established: On 17 July 1995, the Government of the Republic of Lithuania adopted its Resolution No. 987 “On selling and lease of state land plots for non-agriculture activities” (Official Gazette “Valstybës Þinios” No. 60-1513, 1995; hereinafter in the ruling of the Constitutional Court referred to as the disputed resolution). Item 1 of this resolution approved “The procedure of selling and lease of state land plots for non-agriculture activities” (hereinafter in the ruling referred to as the Procedure of Selling and Lease) and “The regulations of selling and lease by non-auction procedure of state land plots for non-agriculture activities” (hereinafter in the ruling referred to as the Regulations of Selling and Lease). I The petitioner grounds his request with the following arguments.

  1. The Government approved “The procedure of selling and lease of state land plots for non-agriculture activities” by Item 1 of the aforesaid resolution. In the opinion of the petitioner, the provision that the Government establishes as to what conditions and procedure the form of property shall be changed from state (public) into private one contradicts Part 2 of Article 128 of the Constitution which establishes that “procedures concerning the management, utilisation, and disposal of State property shall be established by law”. The petitioner is certain that only the legislator is entitled to establish procedure concerning the management, utilisation, and disposal of the property and may not delegate to other subjects, including the Government, this right which has been assigned, according to the Constitution, exclusively to him.
  2. Item 2 of the disputed Government resolution granted the right to possess state land to executive institutions of local self-government. The petitioner is of the opinion that this provision whereby the Government by its decision shall grant the right to possess state land in different territories to executive institutions of local self-government contradicts Part 2 of Article 120 of the Constitution wherein it is stipulated that local governments shall act freely and independently within the limits of their competence which shall be established by the Constitution and laws. Thus, as it is noted by the petitioner, the Constitution provides that the competence of local governments may be circumscribed only by the Constitution and laws and never by Government resolutions, therefore the legislator may not delegate to the Government the right to circumscribe the competence of local governments including that pertaining to the sphere of land possession and this right has been assigned, according to the Constitution, exclusively to him. The petitioner also indicates that Item 2 of the Government resolution contradicts items 1 and 3 of Article 9 of the Law on the Governing of the County wherein it is established that the county governor shall manage state free land stock, with the exception of land transferred into the possession of the institutions of local self-government as well as implement land reform. As, according to

Article 4

of the Law of the Republic of Lithuania on Land Reform, land reform must be implemented by the county governor, and self-government institutions may not be transferred state free land required to implement land reform. According to

Article 45

of the Republic of Lithuania Law on Land, the stock of the state free land which is not allotted for the use by natural and legal persons, and not leased or transferred into private ownership may and must be transferred to local governments into possession. This is not only the land of towns but also the land occupied by other residential areas: towns, small towns and villages the notions of which are defined in Article 3 of the Law on the Territorial Administrative Units of the Republic of Lithuania and their Boundaries. The fact that the competence of the county governor regarding management, utilisation, and disposal of state land is confined within the limits of implementation of land reform permits to assert that the provision of the Government resolution to grant the land possession right to executive institutions of self-government only on the territories which are within the boundaries of administrative units of local governments of towns contradicts items 1 and 3 of Article 9 of the Law on the Governing of the County.

  1. Item 3.1 of the Government resolution establishes that “the county governor may sell or lease new plots of state land by non-auction procedure in rural areas as well as the territories indicated in Items 2.1 and 2.2 of this resolution”, i.e., the county governor is granted the right to manage state free land which local governments are commissioned to possess by Items 2.1 and 2.2 of this resolution. In the opinion of the petitioner, this provision contradicts item 1 of Article 9 of the Law on the Governing of the County which establishes that the county governor shall “manage state free land stock, with the exception of land transferred into the possession of the institutions of local self-government” as the county governor is granted the right to dispose of state free land which local governments are commissioned to possess by Items 2.1 and 2.2 of this resolution. Besides, as it is noted by the petitioner, Article 5 of the Law Concerning Implementation of the Law of the Governing of the County established that, upon the Law of the Governing of the County going into effect, Government resolutions and other legal acts regarding issues of organising county governing shall be valid to the extent that they do not contradict the Law on the Governing of the County. The petitioner also alleges that Item 3.1 of the Government resolution contradicts Articles 97 and 98 of the Civil Code which establish that the object of public property law in the Republic of Lithuania shall, along with other property, be land whereas the subjects of public property law shall be the State and local governments. Thus the Civil Code provides for two public property law independent subjects that accomplish independently their right which has been granted to them by laws to possess public property. However, the aforesaid provision of the Government resolution creates conditions to one of the public property subjects to actually restrict the rights of the other subject in the sphere of possession of state land.
  2. Item 3.4 of the Government resolution establishes that the county governor shall decide disagreements between legal or natural persons and the mayor (board), when establishing the size, boundaries, purpose, limitations and terms, conformity of the approved detailed plan of the sold (transferred) or leased land plot. The petitioner is of the opinion that such a provision when the county governor may decide the conflict between an executive institution of local government and natural or legal persons groundlessly broadens the regulation sphere of the Law on the Governing of the County because the said law does not provide that the county governor shall be entitled to suspend, amend, or cancel decisions adopted by local governments. Furthermore, the said provision contradicts

Article 14

of the Law on the Governing of the County which provides that the relations of the county governor with administrative institutions of self-government shall be limited to co-operation. Item 3.4 of the said resolution also establishes that decisions of the county governor regarding decisions of disagreements between legal or natural persons and the mayor (board) may only be appealed against in court. In the opinion of the petitioner, this provision contradicts Article 18 of the Law on the Governing of the County which establishes that the county governor shall issue orders and other legal acts while the Government shall have the right to repeal the orders and legal acts of the county governor if they are not in conformity with the Constitution of the Republic of Lithuania, the laws, other legal acts passed by the Seimas, decrees of the President of the Republic and the resolutions of the Government. Thus, decisions of the county governor may not only be appealed against in court but also petitioned to the Government. 5. Item 2 of the Procedure of Selling and Lease as approved by the Government resolution establishes that “while selling or otherwise transferring state land for non-agriculture activities, the respective county governor or, upon his authorisation, the head of the county governor’s administration service for organisation of land exploitation and geodesy shall represent the State. The county governor shall permit by his decision to sell or otherwise transfer a land plot”. The petitioner is of the opinion that this provision contradicts Article 9 of the Law of the Governing of the County which does not provide that the county governor is entitled to sell land when this is not related to the land reform. The said provision also contradicts Article 99 of the Civil Code wherein it is established that “the possessions of the State and local governments shall be managed, utilised and disposed of by respective institutions of the supreme power and government, as well as those of local power and government, of the Republic of Lithuania on the grounds of laws and other normative acts of the Republic of Lithuania”. It is impossible to hold that the county governor is an institution of the supreme power and government of state let alone the head of the county governor’s administration service for organisation of land exploitation and geodesy who is authorised by the latter as, according to

Article 1

of the Law on the Governing of the County, the county is only a higher territorial administrative unit of the Republic of Lithuania whereas the county governor is an institution through which the Government shall organise the governing in this territory. In the opinion of the petitioner, the provision that “the county governor shall represent the State” contradicts Part 2 of Article 77 of the Constitution wherein it is established that only the President shall represent the State of Lithuania.

  1. Items 7.1.9 and 8.1.19 of the Procedure of Selling and Lease provide that state land plots for non-agriculture activities shall also be sold or leased by non-auction procedure without prior conditions in the case when the Government adopts a special decision. The petitioner alleges that such a provision which permits the Government to place certain persons at a privileged position obviously contradicts the principles of fair competition that are consolidated in Part 4 of Article 46 of the Constitution wherein it is established that “the law shall prohibit monopolisation of production and the market, and shall protect freedom of fair competition”.
  2. Item 14 of the Regulations of Selling and Lease as approved by the disputed Government resolution provides that the mayor, on his proposal, shall transfer the size of land plots which are to be sold (the sketch of the land plot prepared so as it is provided for in Item 6 of the Regulations of Selling and Lease as approved by said disputed resolution) to the district agriculture board or the town service for organisation of land exploitation and geodesy whereas Item 15 of the said resolution provides that “the mayor shall be entirely responsible for the accuracy and validity of the data presented”. Item 21 of these Regulations of Selling and Lease also provides that the mayor must submit the district agriculture board or the town service for organisation of land exploitation and geodesy the prescribed data characterising a leased land plot (its size and boundaries which are noted in a copy of the technical report file of the land plot plan, as it is required by Item 21.1) while Item 22 indicates that the mayor shall be entirely responsible for the accuracy and validity of the data presented. The petitioner points out that Part 4 of Item 6 of the Procedure of Selling and Lease establishes that “sketches of sold or leased non-agriculture purpose land plots for non-agriculture purposes shall be prepared from the means of the persons concerned pursuant to the procedure established by the State Service for Organisation of Land Exploitation and Geodesy under the Ministry of Agriculture” whereas Part 5 of Item 6 prescribes that the work of land survey and that of preparation of land plots shall be organised conforming to the established procedure of the 30 April 1992 Government Resolution No. 316 “On approving statutes of the Republic of Lithuania state cadastre on land (along with the elements of real property)”. The petitioner also notes that said Government Resolution No. 316 does not provide that the mayors or local governments may have any influence upon preparation of land plot sketches. The 29 March 1995 Government Resolution No. 451 “On transfer of local governments’ functions which are not delegated by law to county governors” established that all functions, thus, those of organisation of land exploitation, too, which had not been delegated to local governments shall be transferred, along with all staff and material and financial resources, to county governors. Therefore, at the given moment, the mayors have no actual possibilities to fulfil their functions provided for by Items 14 and 21 of the Regulations of Selling and Lease. In the opinion of the petitioner, that fact that functions are delegated by a resolution and not by law contradicts Part 3 of Article 14 of the Law on Local Self-Government. The petitioner alleges that the fact that the mayors who do have any corresponding services and who do not have any influence upon preparation of the sketches, either, are forced to submit land plot sketches the preparation procedure of which is established by the State Service for Organisation of Land Exploitation and Geodesy that is not subordinate to them, as well as the fact that they are made responsible for the accuracy of the submitted data, contradicts Part 2 of Article 120 of the Constitution establishing that local governments shall act freely and independently within the limits of their competence which shall be established by the Constitution and laws. In this case, the mayors of local governments may not act freely and independently as the Government grants them the competence (to submit the data regarding land plots) by one resolution while by its another resolution it deprives them with physical and material possibilities (services for organisation of land exploitation) to fulfil these obligations. On the grounds of the motives set forth, the petitioner requests to recognise that the Republic of Lithuania Government 17 July 1995 Resolution No. 987 “On selling and lease of state land plots for non-agriculture activities” contradicts Part 2 of Article 128, Articles 119 and 120, Part 2 of Article 77 and Part 4 of Article 46 of the Constitution as well as Articles 97, 98, 99 of the Civil Code, items 1 and 3 of Article 9,

Article 14

and Article 18 of the Law of the Republic of Lithuania on the Governing of the County. During the court hearing the representative of the petitioner emphasised that the items of the disputed Government resolution which are indicated in the motives of the petitioner are essential ones. Providing the Constitutional Court recognised that they contradict the Constitution, all the remaining items of the disputed resolution would lose their sense. II When the case was being prepared for the court hearing, the representatives of the party concerned - the Government - presented the following counter-arguments. 1.

  1. As regards the allegation of the petitioner that the Government is not permitted to establish conditions and procedure of selling and lease of sate land as Article 128 of the Constitution indicates that procedures concerning the management, utilisation, and disposal of State property shall be established by law, J. Jurginis, the secretary of the Ministry of Public Administration Reforms and Local Government Affairs, a representative of the party concerned, explained: Article 24 of the Law on Land establishes that state land shall be sold or in any other way transferred into private ownership by the county governors in accordance with the procedure established by law and the Government, thus, this law has established as to who may dispose of land while transferring it into private ownership and what procedures must be followed when doing so. In the opinion of the representative of the party concerned, the Government adopted said disputed resolution by following law, therefore it has not violated the Constitution. 1.
  2. The representative of the party concerned alleges that the provisions of the disputed Government resolution whereby executive institutions of self-government are entitled to possess state land in particular territories does not contradict Part 2 of Article 120 of the Constitution which stipulates that “local governments shall act freely and independently within the limits of their competence which shall be established by the Constitution and laws” as the provision of Item 2 of the disputed Government resolution is grounded on Article 6 of the Law on Land whereby the right to possess state land shall be granted to local self-government institutions by the decision of the Government. Moreover, on the grounds of item 3, Part 5 of Article 30 of the Law on Land, the land plot which is subject to be transferred to local governments into possession shall be defined in accordance with how much of land is needed to implement the competence of self-government institutions. 1.
  3. The representative of the party concerned is of the opinion that Item 3.1 of the disputed Government resolution is in compliance with the provision of item 1 of Article 9 of the Law on the Governing of the County whereby the county governor shall manage state free land stock, with the exception of land transferred into the possession of the institutions of local self-government. In his opinion, the land management that is indicated in the said law does not embrace law of disposition. 1.
  4. The representative of the party concerned is of the opinion that the allegation of the petitioner that Item 3.4 of the disputed Government resolution which establishes that the county governor may decide certain disagreements between legal or natural persons broadens the county governor’s competence of regulation which is established by the Law on the Governing of the County is not a grounded one. The disputed provision of the said resolution provides that the county governor shall decide disagreements between legal or natural persons and the mayor (board) when establishing the size, boundaries, purpose, limitations and terms, conformity of the approved detailed plan of the sold (transferred) or leased land plot. Providing this issue were not regulated this way, it is possible to appeal against to court for its final settlement. Thus, in the opinion of the representative of the party concerned, the disputed provision of the resolution does not violate anybody’s rights or interests but it merely creates a possibility to regulate a dispute in the fastest way possible. 1.
  5. Item 2 of the Procedure of Selling and Lease as approved by the disputed Government resolution establishes that while transferring state land, the county governor or, upon his authorisation, the head of the county governor’s administration service for organisation of land exploitation and geodesy shall represent the State. In the opinion of the petitioner, this contradicts Article 77 of the Constitution whereby only the President of the Republic shall represent the State. The representative of the party concerned explained that the Constitution does not contain the word “only”, meanwhile representation is a constituent part of disposition of state property. According to Article 24 of the Law on Land, county governors shall be entitled to dispose of state land plots. When implementing this function, they have the right to represent the State. Therefore, disputed Item 2 of the Procedure of Selling and Lease is in conformity with law. 1.
  6. As regards Items 7.1.9 and 8.1.19 of the Procedure of Selling and Lease as approved by the disputed Government resolution which provide that state land plots for non-agriculture activities shall be sold or leased by non-auction procedure without prior conditions also in case the Government should adopt a special decision, the representative of the party concerned explained that the Government was entitled to establish such a procedure following Article 99 of the Civil Code. 1.
  7. The representative of the party concerned alleges that the documents (land plot sketches) are at local governments’ command and the said documents are necessary while selling the plots, therefore the provisions of the Regulations of Selling and Lease as approved by the disputed resolution whereby the mayors are proposed to submit these documents in corresponding cases are adopted following item 5,

Article 18of the Law on Local Self-Government.

Taking account of the mentioned above, the representative of the party concerned requests to recognise that the Republic of Lithuania Government 17 July 1995 Resolution No. 987 “On selling and lease of state land plots for non-agriculture activities” is in compliance with the Constitution. 2.

  1. S. Naujalis, a deputy director of the Department of the Territorial Planning of the Ministry of Construction and Urban Planning, a representative of the party concerned, explained that the provision of Item 3.4 of the disputed Government resolution means that the county governor decides disagreements between natural or legal persons and the mayor (board) concerning the conformity of the approved detailed plan while selling or leasing land plots but the said resolution does not mean that decisions adopted by local governments shall be repealed. Item 3, Part 2 of Article 30 of the Law on Territorial Planning establishes that the county governor shall render state supervision of general and detailed territorial planning of local governments’ territories while item 5 of Article 8 of the Law on the Governing of the County provides that the county governor shall establish conditions for the preparation of territorial planning documents for local governments. If laws commission the county governor to establish conditions regarding preparation of a detailed plan for local governments and to render state supervision of territorial planning of local governments’ territories, then, in the opinion of the representative of the party concerned, no one else may settle disagreements concerning the conformity of a detailed plan. According to the Law on the Territorial Planning, the person who prepares the plan, in this case, the local government, may not render supervision of territorial planning. 2.
  2. The representative of the party concerned is of the opinion that the provision of Item 2 of the Procedure of Selling and Lease as approved by Item 1 of the disputed Government resolution that the State shall be represented by a respective county governor is not a new legal norm but taken from Part 2 of Article 24 of the Law on Land wherein it is established that while making contracts of sale and purchase as well as of lease and use of land plots, either the county governor or, upon of his authorisation, the head of the county governor’s administration service for organisation of land exploitation and geodesy shall represent the State. 2.
  3. Items 14 and 21 of the Regulations of Selling and Lease, as well as Item 6 of the Procedure of Selling and Lease, provide that the mayor shall transfer the size of the sold land plots and other data on the grounds of detailed plans to the district agriculture board or the town service for land exploitation and geodesy. According to the Law of Local Self-Government, the preparation of such plans shall be organised by local governments, therefore, in the opinion of the representative of the party concerned, the mayor is responsible for the accuracy of these data. After that the plan of the sold land plot and its geodetic survey are prepared from the means of persons concerned following the 30 April 1992 Government Resolution No.
  4. The mayors are neither responsible for, nor do they take part in the preparation of plans of the sold land plots and their geodetic survey. Therefore the representative of the party concerned alleges that the statement of the petitioner that the mayors have no physical possibilities to fulfil the functions commissioned to them by Items 14 and 21 of the Regulations of Selling and Lease is not a grounded one. The mayors shall submit material with territorial plans the preparation of which is organised by councils of architects to the county governor. The representatives of the party concerned, in essence, reiterated the said statements and arguments in the court hearing. The Constitutional Court holds that: Article 119 of the Constitution establishes that administrative units provided by law on State territory shall be entitled to the right of self-government. This right shall be implemented through local government Councils. Local governments shall act freely and independently within the limits of their competence which shall be established by the Constitution and laws (Article 120 of the Constitution). When implementing the local self-government reform, the idea of two-level local governments was abandoned and it was established that, in higher level administrative units, the administration shall be organised by the Government (

Article 123of the Constitution).

The local self-government reform is carried out by degrees: on 7 July 1994 the Law on Local Self-Government was passed, and, correspondingly, on 17 July of the same year the Law on the Territorial Administrative Units of the Republic of Lithuania and their Boundaries, 15 December of the same year the Law on the Governing of the County, 12 December 1995 Law on Territorial Planning, etc. were adopted. According

Article 1

of the Law on Local Self-Government, local self-government “denotes the right and actual power of the institutions of a local government which is elected by the residents of an administrative unit of the territory of the Republic of Lithuania, to freely and independently on their own responsibility regulate and manage public affairs and meet the needs of local residents according to the Constitution and laws of the Republic of Lithuania”. This legal norm particularises the constitutional principle of local governments’ independence and realises in practice the constitutional provision that only the legislator may regulate the competence of local governments. Local self-government is implemented through a state territorial administrative unit (territory of a local government). The territory of a local government is a specific territorial entity which has the self-government right guaranteed by the Government and which acts independently within the competence limits that are established by the Constitution and laws. The executive power has only limited powers with regard to local governments and these powers are established by the Constitution and laws in attempt to ensure effective implementation of state administration. Upon the adoption of the Law on the Territorial Administrative Units of the Republic of Lithuania and their Boundaries, the territory of the Republic of Lithuania was divided into administrative units - counties and territories of local governments. According to

Article 2

of this law, “the territory of a local government is a territorial administrative unit of the Republic of Lithuania, which is governed by institutions of local self-government, elected by the local community pursuant to the Law on Local Self-Government of the Republic of Lithuania and other laws”. Thus the territory of a local government is treated as a decentralised, i.e., as a comparatively independent system of administration. Part 2 of the said law prescribes that “the county is the higher territorial unit of the Republic of Lithuania, the governing of which shall be organised by the Government of the Republic of Lithuania pursuant to the Law on the Governing of the County and other laws”. Thus county administration is a constituent part of state administration. The Government organises county administration through the county governor, ministries and other Government institutions. Consequently, functions of centralised state administration are implemented through counties. The purpose of dividing State territory into administrative units is to bring into being necessary preconditions to best organise administration, to better serve people and meet their administrative needs. In this respect, counties and municipalities are, not taking account of the mentioned differences, united by common aims. This conditions the necessity of their co-operation, as well as the necessity to co-ordinate centralised state administration with decentralisation. While discharging functions of centralised administration, the Government implements laws and resolutions of the Seimas concerning the implementation of laws pursuant to item 2 of Article 94 of the Constitution.

Article 6

of the Law on Land establishes that the right of possession of State land shall be vested in local governments by the decision of the Government, while Part 2 of the said article obligates the Government to establish common procedure of land use, lease or its transfer into use to legal and natural persons. The Government, when implementing this commission, adopted its 17 July 1995 Resolution No. 987 “On selling and lease of state land plots for non-agriculture activities”.

  1. On the compliance of Item 1 of the Republic of Lithuania Government 17 July 1995 Resolution No. 987 “On selling and lease of state land plots for non-agriculture activities” with Part 2 of Article 128 of the Constitution, and Item 2 of “The procedure of selling and lease of state land plots for non-agriculture activities” as approved by this resolution with Part 2 of Article 77 of the Constitution, Article 99 of the Civil Code, as well as on the compliance of Items 7.1.9 and 8.1.19 of this resolution with Part 4 of Article 46 of the Constitution. 1.
  2. The Government approved “The procedure of selling and lease of state land plots for non-agriculture activities” by Item 1 of the disputed resolution. In the opinion of the petitioner, the provision that the Government establishes as to what conditions and procedure the form of property shall be changed from state (public) into private one contradicts Part 2 of Article 128 of the Constitution which establishes that “procedures concerning the management, utilisation, and disposal of State property shall be established by law”.

Article 24

of the Law on Land stipulates: “State land shall be sold or in any other way transferred into private ownership by the county governors in accordance with the procedure established by law and the Government of the Republic of Lithuania.” This provision is to be understood that the Procedure of Selling and Lease approved by the disputed Government resolution may never contradict laws, as well as legal provisions and principles concerning land selling and lease formulated in these laws. In this light the said resolution adopted by the Government, as well as the Procedure of Selling and Lease approved by this resolution, must be assessed. 1.

  1. Items 1.1 - 1.1.2 of the Procedure of Selling and Lease provide for subjects that may acquire state land plots for non-agriculture activities by the right of ownership. These subjects are provided for by Article 47 of the Constitution and Article 3 of the Law on Land. Items 1.2 - 1.2.2 of the Procedure of Selling and Lease establish subjects that may take this land on lease. These subjects are provided for by Articles 1 and 7 of the Law on the Leasing of Land, the Law “On the Procedure of Selling and Lease of Land Plots for Diplomatic and Consular Offices of Foreign Countries”, as well as other laws. Thus the aforesaid items of the Procedure of Selling and Lease, in essence, merely repeat the subjects of land relations provided for by laws. 1.
  2. Item 2 of the Procedure of Selling and Lease establishes that “while selling or otherwise transferring state land for non-agriculture activities, the respective county governor or, upon his authorisation, the head of the county governor’s administration service for organisation of land exploitation and geodesy shall represent the State”. The petitioner is of the opinion that the provision “the respective county governor [...] shall represent the State” contradicts Part 2 of Article 77 of the Constitution wherein it is established that the President of the Republic shall represent the State of Lithuania. As regards this issue, the Constitutional Court already stated its opinion in its 25 September 1996 ruling where it judged the conformity of certain norms of the Law on Land with the Constitution and held that this norm of the law is in compliance with the Constitution, thus Item 2 of the Procedure of Selling and Lease is in compliance with Part 2 of Article 77 of the Constitution, too. Moreover, in the opinion of the petitioner, Item 2 of the Procedure of Selling and Lease contradicts Article 99 of the Civil Code wherein it is established that the possessions of the State and local governments shall be managed, utilised and disposed of by respective institutions of the supreme power and government, as well as those of local power and government, of the Republic of Lithuania on the grounds of laws and other normative acts. In the case at issue, the powers of the county governor to represent the state while making the contracts of selling, lease and use of state land plots are established in the Law on Land, the Law on the Governing of the County and the Procedure of Selling and Lease approved by the disputed Government resolution which particularises these laws. Furthermore, it must be noted that local governments are not land owners as yet, therefore they may not act as representatives in land property relations in the sense of Article 99 of the Civil Code. Taking account of these motives, a conclusion should be drawn that Item 2 of the Procedure of Selling and Lease as approved by the disputed Government resolution is in compliance with Part 2 of Article 77 of the Constitution and Article 99 of the civil Code. 1.
  3. While assessing the content of other items of the Procedure of Selling and Lease, the Constitutional Court notes that the powers of the county governor and the mayor of the territory of a local government in the sphere of state land plot leasing are particularised in Item
  4. This item repeats and specifies legal norms which were consolidated by Article 6 of the Law on Land, as well as Articles 5 and 9 of the Law on the Leasing of Land. Items 4 and 5 of the Procedure of Selling and Lease establish the size of land plots which are allotted for construction of private houses, as well as the size of garden plots of the members of gardeners’ societies. These items virtually particularise the provisions formulated by Article 9 of the Law on Land Reform. 1.
  5. Items 7 and 8 of the Procedure of Selling and Lease as approved by the disputed Government resolution establish cases of selling and lease of state land plots by non-auction procedure for non-agriculture activities. It should be noted that the legislator has not define in particular as to what cases state land shall be sold or leased by non-auction procedure, however, major provisions of the procedure of selling and lease of state land plots by auction and non-auction procedure are phrased in the Law on Land Reform, the Law on Land, and the Law on the Leasing of Land. According to

Article 6

of the Law on the Leasing of Land, as a rule, state land shall be leased by auction in accordance with the procedure established by the Government, however, in certain cases, it may be leased by non-auction procedure. This is provided for by Part 2 of Article 6 of the Law on the Leasing of Land wherein it is stipulated: “Land shall be leased by auction provided that it is not built over with structures owned by the prospective lessee or is not built over with structures which are owned by other persons and which are not leased with the land, and that the land is not planned to be assigned, according to the territorial planning documents, to the land tenure of the prospective tenant.” It should be noted that the Law on Land Reform commissions the Government with establishing the procedure of selling of land. Item 6 of Article 8 of this Law consolidates that “in rural areas for non-agriculture activities, and in towns in cases, land shall be sold on the grounds of the procedure established by the Government of the Republic of Lithuania”. Thus, in the aforementioned items, the Government merely specified the fundamentals of selling and lease of state land plots by non-auction procedure for non-agriculture activities. Therefore the cases of selling state land by non-auction procedure as established by Items 7.1.1 - 7.1.8 and those of leasing state land plots by non-auction procedure as established by Items 8.1.1 - 8.1.18 of the Procedure of Selling and Lease are, in essence, with the norms of various laws which regulate land relations and with actual circumstances which determine such a (non-auction) procedure of lease and selling of state land. Providing the said land plots were sold by auction, the rights of land users and possessors would essentially be violated. 1.

  1. Items 7.1.9 and 8.1.19 of the Procedure of Selling and Lease are distinguished by their legal content. They establish that the Government may sell or lease state land by non-auction procedure by its special decision. Although it is established in item 5 of Article 21 of the Law on the Government that the Government shall “hold, use and dispose of State property according to the procedures and situations established by law”, i.e., it performs the state property (in the case under investigation - state land) owner’s functions, however, it may not by its acts create new norms which are not based on provisions of law. It is only the legislator that may establish the manner and conditions of disposing of state property (state land) as Part 2 of Article 128 of the Constitution stipulates that “procedures concerning the management, utilisation, and disposal of State property shall be established by law”. Law does not establish any such right of the Government to sell or lease land. Therefore a conclusion is to be drawn that the Government by granting itself such a right without any legal grounds violated the norms consolidated in Part 2 of Article 128 of the Constitution. It should be noted that the Government right provided for by Items 7.1.9 and 8.1.19 of the Procedure of Selling and Lease to sell or lease land for non-agriculture purposes by non-auction procedure without any prior conditions may create legal preconditions to grant exclusive rights for individual subjects to acquire land plots. Thus, if compared with other claimants to acquisition of land plots, individual subjects may be placed at advantageous situation. Therefore a conclusion should be drawn that such an ambiguity of the said items of the Procedure of Selling and Lease which allows to sell or lease state land for non-agriculture activities by non-auction procedure “by a special decision of the Government”, i.e., by not binding with any prior conditions, does not agree with the principle of fair competition which is consolidated in Part 4 of Article 46 of the Constitution.
  2. On the compliance of Item 2 of the Republic of Lithuania Government 17 July 1995 Resolution No. 987 “On selling and lease of state land plots for non-agriculture activities” with Articles 119 and 120 of the Constitution, as well as with items 1 and 3 of Article 9 of the Law on the Governing of the County. The Government decided by Item 2 of the disputed resolution: “To grant the right to possess state land to executive institutions of local self-government: 2.
  3. in the territories which are within administrative boundaries approved by the established procedure of town local governments, as well as in the territories which are attributed to these towns by the decisions of the Government of the Republic of Lithuania; 2.
  4. in the territories which are within administrative boundaries approved by the established procedure of towns as residential areas, as well as in the territories which are attributed to these towns by the decisions of the Government of the Republic of Lithuania”. According to the Law on the Territorial Administrative Units of the Republic of Lithuania and their Boundaries, territories of local governments shall have established administrative boundaries. Article 7 of this law stipulates that “the territories of local governments shall be established and abolished, as well as their boundaries and centres shall be set and changed by the Seimas of the Republic of Lithuania on the proposal of the Government of the Republic of Lithuania, taking into consideration the proposals of local governments”. Item 5 of Article 21 of the Law on the Government establishes that the Government shall “hold, use and dispose of State property according to the procedures and situations established by law”. Thus the Government performs the state property (in the case under investigation - state land) owner’s functions. The owner or, upon his authorisation, other persons may transfer property to other persons. According to the Law on Local Self-Government, the competence of local self-government institutions in the sphere of legal relations in land possession is not the main (independent) one but merely that delegated by the State (Articles 14 and 16). The purpose of land, if compared with other objects of immovable property, conditions special legal regulation of land relations, too. The State delegates the right to possess state land to local self-government institutions and commissions the Government to make it official by adopting its decision. Thus the Government as an institution which implements the functions of the state property owner possesses powers to grant the right to possess state property also to other subjects pursuant to the procedure provided for by the Constitution and laws. The Government did so by passing the said resolution which is disputed by the petitioner and thereby granting the state land possession right to local self-government institutions. Thus the said Government resolution is based on the norms of the Law on Land therefore it is impossible to assert that thereby Articles 119 and 120 of the Constitution which consolidate principles of organisation and legal regulation, as well as those of independence for local self-government institution activities, were violated. This commission of the legislator to grant the right to possess state land to local self-government institutions does not provide with the grounds to maintain that thereby the content of the right of local self-government institutions to possess land is established. This was noted in the said 25 September 1996 ruling of the Constitutional Court. The content of the right to possess land is regulated in laws (the Law on Land, the Law on Land Reform, the Law on the Leasing of Land, etc.). It means that the Seimas did not delegate the Government the right to define the content of the right granted to local governments to possess state land but merely commissioned it with adopting a respective administration act whereby the right to possess state land were transferred to local governments. It should be noted that only then will local governments gain the right of property to land when the Constitutional Law on the Subjects, Procedure, Terms and Conditions and Restrictions of the Acquisition into Ownership of Land Plots Provided for by Part 2 of Article 47 of the Constitution of the Republic of Lithuania (hereinafter in the ruling referred to as the Constitutional Law) is applied. The allegation of the petitioner that the competence of the county governor in the sphere of management, use and disposal of state land is limited to only fulfilment of land reform as established in the Law on the Governing of the County is not a grounded one. The county governor also fulfils other powers provided for by laws. For instance, according to Article 24 of the Law on Land, the county governor shall sell or transfer otherwise state land into private ownership, make contracts of sale and purchase as well as of lease and use of land plots. According to Part 5 of Article 9 of the Law on the Leasing of Land, the county governor on the proposal by the possessor of state land shall lease or grant into use the land to natural and legal persons for a term of more than 3 years. Taking into consideration all the motives set forth, a conclusion is to be drawn that Item 2 of the disputed Government resolution is in compliance with Articles 119 and 120 of the Constitution, as well as items 1 and 3 of Article 9 of the Law on the Governing of the County.
  5. On the compliance of Item 3.1 of the Republic of Lithuania Government 17 July 1995 Resolution No. 987 “On selling and lease of state land plots for non-agriculture activities” with item 1 of Article 9 of the Law on the Governing of the County, as well as Articles 97 and 98 of the Civil Code. 3.
  6. It is established in Item 3.1 of the Government resolution disputed by the petitioner that “the county governor may sell or lease new plots of state land by non-auction procedure in rural areas as well as the territories indicated in Items 2.1 and 2.2 of this resolution”, i.e., the county governor is granted the right to manage state free land which local governments are commissioned to possess by Items 2.1 and 2.2 of this resolution. This, in the opinion of the petitioner, contradicts item 1 of Article 9 of the Law on the Governing of the County wherein it is established that the county governor shall “manage state free land stock, with the exception of land transferred into the possession of the institutions of local self-government”. The Government, while phrasing Item 3.1, used the legal notion “new plots of state land” which is not identical with the notion of state free land. It is possible to conceive from item 1,

Article 49

of the Law on Land that new state land plots are new private and state land plots and land holdings formed in the process of land-use planning. While according to

Article 45

of the Law on Land, state free land is the land which is not allotted for the use by natural and legal persons, is not leased or transferred into private ownership.

Article 2

of the Law on Land explains: “‘Land plot’ means a portion of territory having fixed boundaries and the proper purpose for which the land is used”. Part 2 of Article 45 of the Law on Land consolidates: “The stock of the state free land shall be operated by the county governor with the exception of land which is transferred into possession by local governments according to the procedure established by this law and the Government of the Republic of Lithuania.” It is similarly provided for by item 1 of Article 9 of the Law on the Governing of the County wherein it is stipulated that the county governor shall “manage state free land stock, with the exception of land transferred into the possession of self-government institutions”. The essence of land management is defined in Part 3 of Article 45 of the Law on Land wherein it is established that “upon the determination of its purposive use of its particular plots and upon the completion of necessary works of territorial optimisation, management and soil improvement, the state free land stock shall be sold, allotted for use, or leased”. It is obvious from the content of the norm of Part 2 of Article 35 of the Law on Land that land management is performed according to land-use plans prepared and approved by the county governor. On the grounds of these plans the boundaries of the existing land holdings shall be revised; new land holdings shall be formed; farmsteads and production facilities shall be built; roads shall be laid; ponds shall be made; forest shall be planted; forests, marshes and shrubbery shall be transformed into agricultural land. Therefore the management of state land must not be linked with the disposal of this land. In its turn, the Government as an institution which performs the functions of the state land owner is entitled to establish the price of the sold land and to allocate the acquired means in certain proportionate expression to purposive funds. Taking account of the motives set forth that the notions “management” and “disposal of” are not identical, a conclusion is to be drawn that Item 3.1 of the Government resolution is in compliance with item 1, Article 9 of the Law on the Governing of the County. 3.2. In the opinion of the petitioner, Item 3.1 contradicts Articles 97 and 98 of the Civil Code wherein it is established that the object of public property law in the Republic of Lithuania shall be land along with other property whereas the subjects of public property law in the Republic of Lithuania shall be the State and local governments. Thus the petitioner is of the opinion that the Civil Code provides for two independent subjects of public property law that independently exercise the right granted them by laws to manage public property. Until the application of the Constitutional Law, local governments are not land owners yet. It means that that the norms of civil law regulating property relations in general and protecting the rights of subjects of property relations may not be applied to protection of not existing even though potential or attempted subjective rights of local governments to land property. Thus a conclusion should be made that Item 3.1 of the disputed Government resolution is in compliance with item 1, Article 9 of the Law on the Governing of the County, as well as Articles 97 and 98 of the Civil Code. 4. On the compliance of Item 3.4 of the Republic of Lithuania Government 17 July 1995 Resolution No. 987 “On selling and lease of state land plots for non-agriculture activities” with

Article 14, and Article 18 of the Law on the Governing of the County.

4.1. Item 3.4 of the Government resolution establishes that “the county governor shall decide disagreements between legal or natural persons and the mayor (board) when establishing the size, boundaries, purpose, limitations and terms, conformity of the approved detailed plan of the sold (transferred) or leased land plot”. The petitioner alleges that such a provision groundlessly broadens the regulation sphere of the Law on the Governing of the County because the said law does not provide that the county governor shall be entitled to suspend, amend, or repeal decisions adopted by local governments. It should be noted that Item 3.4 establishes the procedure of decision of disagreements which arise when establishing the size, boundaries, purpose, limitations and terms (servitude), conformity of the approved detailed plan of the sold or leased land plot as well as the subjects but not, as the petitioner alleges, the procedure of suspension or amendment of decisions adopted by self-government institutions. The powers of the county governor in the sphere of territorial planning are defined by Article 8 of the Law on the Governing of the County. It provides that the county governor shall, in addition to all the other functions indicated therein, establish conditions for the preparation of territorial planning documents for territories of local governments and co-ordinate them and, in the prescribed manner, supervise territorial planning. The competence of the county governor in the sphere of territorial planning as defined in the Law on the Governing of the County are not final. Part 2 of Article 11 of the said law establishes that the county governor shall also exercise other powers established by the laws of the Republic of Lithuania and Government resolutions. Such powers in the sphere of territorial planning are particularised in the Law on Territorial Planning. This law establishes the powers of the county governor in the sphere of planning territories of various levels (item 2,

Article 4

; Part 3 of the said article); it specifies his functions in the sphere of preparing, co-ordinating and approving common plans (Parts 2 and 4 of Article 9); it defines his functions in the sphere of organisation of assembling and management of data bank of territorial planning (Part 5 of Article 21). Item 3, Part 2 of Article 30 of the said law commissions him to render supervision of common and detailed planning of territories of local governments as well as that of special planning on the level of local governments, as well as natural and legal persons. The analysis of the content of the aforementioned laws permits to assert that the powers and functions of the county governor in the sphere of territorial planning are exhaustively regulated in laws. The right of the county governor to decide disagreements provided for by Item 3.4 of the Government resolution is consolidated in laws while the disputed Government resolution merely specifies the powers of the county governor. Thus, if law commissions the county governor to establish conditions for the preparation of territorial planning documents for territories of local governments (item 5 of Article 8 of the Law on the Governing of the County), as well as to render supervision of planning of local government territories, therefore it is he who must decide disagreements provided for by Item 3.4 of the disputed Government resolution. This conclusion is grounded on the provision of Part 4 of Article 39 of the Law on Territorial Planning that the organiser of the territorial planning document, in this case - the local government, shall not have a right to render supervision of territorial planning. The petitioner also deems that Item 3.4 of the disputed Government resolution contradicts

Article 14

of the Law of the Governing of the County which provides that the county governor, when discharging the functions attributed to him, shall co-operate with the institutions of self-government and the state. The petitioner, on the grounds of this provision of the law, alleges that the relations between the county governor and self-government institutions must be limited to co-operation. Article 3 of the Law on Territorial Planning defines the purpose of territorial planning: the balancing of the territory of the Republic of Lithuania, the establishing of the development of residential areas policy, the establishing of ecological equilibrium, etc. In the light of the case under investigation, the objective phrased in item 7 of the said article to co-ordinate the interests of natural and legal persons and their groups, as well as those of society, local governments, and the state regarding the conditions of use of territory and land plots as well as development of activities in that territory is of importance. While pursuing the aforementioned objectives, close co-operation of the subjects who take part in the planning process is necessary. The Law on Territorial Planning establishes such forms of co-operation and guarantees. It provides for the competence and functions of the county governor, as well as those of local governments, in the sphere of implementation of common and detailed territorial planning (Articles 5, 6, 8, 9, 15, and 16), regulates the common procedure for co-ordination of territorial planning documents and their submission for approval (Article 23), the procedure of submission and consideration of planning proposals of persons who are concerned with territorial planning (Articles 27 and 28). Thus the Law on Territorial Planning creates legal preconditions for co-operation of institutions of self-government and the county governor while planning territories. The Constitutional Court, when interpreting the content of

Article 14

of the Law on Territorial Planning, emphasises that co-operation is a universal constitutional principle. Its implementation creates preconditions for state institutions and local governments alike, while exercising powers consolidated in laws, to pursue the common aim - to ensure effective regulation of the affairs of society and state. Thus the independent functions of the county governor and local governments do not deny their co-operation. This co-operation manifests itself in various spheres, and in this case it does so when territories are planned. On the grounds of the motives set forth a conclusion is to be drawn that Item 3.4 of the Government resolution is in compliance with

Article 14of the Law on the Governing of the County.

4.2. The petitioner is of the opinion that the provision of Item 3.4 of the Government resolution that decisions of the county governor regarding settling disagreements between legal or natural persons and the mayor (board) may only be appealed against in court contradicts Part 3 of Article 18 of the Law on the Governing of the County which establishes that the Government shall have the right to repeal the orders and legal acts of the county governor if they are not in conformity with the Constitution of the Republic of Lithuania, the laws and other legal acts passed by the Seimas, decrees of the President of the Republic and the resolutions of the Government. Article 1 of the Law on the Governing of the County establishes that the county is a higher territorial administrative unit of the Republic of Lithuania the governing of which shall be organised by the Government through the governor of the county, the Ministries and other Government institutions. The Government, when performing supervision of the county governor’s activities, may repeal the acts adopted by the county governor if they are not in conformity with the Constitution, the laws and other aforesaid legal acts. Thus the norm of Part 3 of Article 18 of the Law on the Governing of the County indicates causes and grounds under which the Government may repeal legal acts adopted by the county governor but never does it regulate, as the petitioner alleges, the procedure of appeal against decisions of the county governor. The Law on Territorial Planning provides for the judicial procedure of settling disagreements which arise in the process of planning. For instance, Part 8 of Article 20 of the said law provides that the decision of the supervising institution may be appealed against in court. As it was mentioned, the county governor shall render supervision of the planning of the territories of local governments, consequently his decisions may be appealed against in court. Thus the Government by establishing in Item 3.4 of its resolution that decisions of the county governor may only be appealed against in court repeated, in essence, the provisions of the Law on Territorial Planning. Such a procedure to settle disagreements does not contradict the constitutional principle of the priority and universality of legal protection. Taking account of the motives set forth, it should be concluded that Item 3.4 of the disputed Government resolution is in compliance with

Article 14, and Article 18 of the Law on the Governing of the County.

  1. On the compliance of Items 14, 15, 21, and 22 of “The regulations of selling and lease by non-auction procedure of state land plots for non-agriculture activities” as approved by the Republic of Lithuania Government 17 July 1995 Resolution No. 987 “On selling and lease of state land plots for non-agriculture activities” with Part 2 of Article 120 of the Constitution, as well as Part 3 of Article 14 of the Law on Local Self-Government. Item 14 of the Regulations of Selling and Lease as approved by the disputed Government resolution provides that the mayor, on his proposal, shall transfer the size of land plots which are to be sold (the sketch of the land plot prepared so as it is provided for in Item 6 of the Regulations of Selling and Lease as approved by said disputed resolution) to the district agriculture board or the town service for organisation of land exploitation and geodesy whereas Item 15 of the said resolution provides that “the mayor shall be entirely responsible for the accuracy and validity of the data presented”. Item 21 of these Regulations of Selling and Lease also provides that the mayor must submit the district agriculture board or the town service for organisation of land exploitation and geodesy the prescribed data characterising a leased land plot (its size and boundaries which are noted in a copy of the technical report file of the land plot plan, as it is required by Item 21.1) while Item 22 indicates that the mayor shall be entirely responsible for the accuracy and validity of the data presented. The petitioner notes that the mayors have no physical possibilities to fulfil obligations indicated in the said items as the Government grants them the competence (to submit the data regarding land plots) by one resolution while by its another resolution it deprives them with physical and material possibilities (services for organisation of land exploitation) to fulfil these obligations. The Constitutional Court notes that the arguments of the petitioner whether the mayors “are able” or “are not able” to discharge their functions provided for by Items 14, 15, 21, and 22 are applied to the possibilities of the mayor to participate in the process of planning in the material sense which shall not be assessed and decided by the Constitutional Court but never are they applied to the issues of normative regulation. According to Article 30 of the Constitutional Court, the Constitutional Court shall investigate and decide only legal issues. At the same time, the Constitutional Court holds that Part 5 of Article 18 of the Law on Local Self-Government establishes that the local government board (mayor) shall organise the drafting of a master plan of the respective territory, as well as projects and detailed plans concerning its amendments. These issues established by law belong to the independence competence of local governments, therefore there are no grounds to assert that the disputed items of the Regulations of Selling and Lease contradict Part 2 of Article 120 of the Constitution. In addition, it should also be noted that, according to the 29 March 1995 Government Resolution No. 451 “On transfer of local governments’ functions which are not delegated by law to county governors”, in order to prepare the aforementioned plans, centres of geoinformation systems (architect services) are left at the command of local governments. The petitioner alleges that the transfer procedure of the functions to the county governors as established by aforesaid Government Resolution No. 451 contradicts Part 3 of Article 14 of the Law on Local Self-Government. In the opinion of the petitioner, these functions must have been delegated by law. The Constitutional Court notes that in this case the transfer of functions to the county governor’s competence is dealt with and not the delegation of functions to local governments. Therefore there are no grounds to assert that such a procedure contradicts Part 3 of Article 14 of the Law on Local Self-Government. Taking into consideration the motives set forth, a conclusion is to be drawn that Items 14, 15, 21, and 22 of the Regulations of Selling and Lease as approved by Item 1 of the Government resolution are in compliance with Part 2 of Article 120 of the Constitution and Part 3 of Article 14 of the Law on Local Self-Government. Conforming to Article 102 of the Constitution of the Republic of Lithuania and Articles 53, 54, 55 and 56 of the Law of the Republic of Lithuania on the Constitutional Court, the Constitutional Court has passed the following ruling:
  2. To recognise that Items 7.1.9 and 8.1.19 of “The procedure of selling and lease of state land plots for non-agriculture activities” as approved by Item 1 of the Republic of Lithuania Government 17 July 1995 Resolution No. 987 “On selling and lease of state land plots for non-agriculture activities” contradict Part 2 of Article 128, and Part 4 of Article 46 of the Constitution of the Republic of Lithuania.
  3. To recognise that the remaining part of the Republic of Lithuania Government 17 July 1995 Resolution No. 987 “On selling and lease of state land plots for non-agriculture activities” is in compliance with the Constitution of the Republic of Lithuania, Articles 97, 98, 99 of the Civil Code of the Republic of Lithuania, as well as items 1 and 3 of Article 9,

Article 14

, and Article 18 of the Law of the Republic of Lithuania on the Governing of the County. This Constitutional Court ruling is final and not subject to appeal. The ruling is promulgated on behalf of the Republic of Lithuania. Justices of the Constitutional Court: Egidijus Jaraðiûnas Kæstutis Lapinskas Zigmas Levickis Augustinas Normantas Vladas Pavilonis Jonas Prapiestis Pranas Vytautas Rasimavièius Teodora Staugaitienë Juozas Þilys

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