Lithuania

QUESTIONNAIRE

FIRST PART : Do the rights granted by the Charter of Fundamental rights of the EU lead us to a common European procedure before the administration and the administrative courts ?
Introduction
The provisions in the Charter are primarily addressed to the EU institutions and bodies but, according to article 51.1 they should be applied by the Member states when they are implementing Union law.
Through the Treaty of Lisbon the Charter, proclaimed in Nice 7 December 2000, is legally binding to the same extent as the Treaties (article 6.1 in the EU Treaty).
You will find the Charter in the Official Journal, 2010/C 83/02 .

The text of the Charter is available in the internet under :
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2010:083:0389:0403:EN:PDF

European Parliament’s explanation, with all the links :

http://www.europarl.europa.eu/charter/default_en.htm

Another very interesting website about this Charter :

http://www.eucharter.org/home.php?page_id=1
It is also useful to read the “updated Explanations relating to the text of the Charter”. You can find them under http://register.consilium.europa.eu/pdf/en/03/cv00/cv00828-re01.en03.pdf . In its preamble it says that the explanations are “a valuable tool of interpretation intended to clarify the provisions of the Charter”. Among other things there are references to a lot of case law from the ECJ where the principles now laid down in the Charter were developed.

General questions
To what extent do you apply EU law
Very much To some extent Not at all
To what extent do you set aside rules of domestic law, if necessary, to give full effect to EU law ?
Very much To some extent Not at all
Can you give examples if appropriate ?
Do you apply EU law even if neither of the parties in a case before you has relied on EU law ?
Yes No
EU law in Lithuanian jurisprudence before joining the EU
Lithuania became EU member state in 1st May 2004. Although joining the EU was not the term of beginning applying the EC law. Though national courts did not directly applied EC law, but almost 10 years before entering the EU (from 1995) the application of national rule of law was based on the relevant EC law. EC law was the additional source of interpretation and application of national law mostly in the jusrisprudence of the highest national courts : Constitutional Court, The Supreme Court and the Supreme Administrative Court of Lithuania.
Constitutional Court was established in 1993. In the doctrine formed by Constitutional Court before Lithuania‘s entering the EU, was based on the relevant EU regulation as the additional source for interpretation the Lithuanian Constitution. The fields of application the EU law are the following :
Cases, related to human rights and freedoms (e. g. Health security through limitations of advertisment of tobacco and alcohol, prohibition of death penalty, dispersal of information). For example, in the decision 1995-04-20 on interpretation of the liberalisation of telecomunication market Constitutional Court applied EU Directive No. 89/552 ; in the decision 1997-02-13, concerning advertisement of tobacco and alcohol, Constitutional Court used the term of advertisement of tobacco, stated in the EC document No. 92/C 129/04 ; in the decision 1998-12-09, concerning death penalty, Constitutional Court refered to the resolution of European Parliament 1997-06-13 on prohibition the death penalty ; in the decision 2002-03-14, concerning pharmaceutical activity, Constitutional Court applied the EU law and pointed that EU law doesn‘t regulate matters concerning pharmaceutical property and leaves it to the Member States.
Cases, related international affairs
Cases, related to quazi political-judicial matters (e. g. concerning legality of the Law of lustration, which regulates limitations of activities of the former employees of committee of state security of the USSR).
Influence of the EU law is more visible in the jurisprudence of the Supreme Court because of the differences of the competence and number of cases in the Supreme Court and the Constitutional Court. The Supreme Court was established in year 1995 and during almost 10 years to the year 2004 EU law influence to the national law was mentioned in 60 cases. Tendencies of the application of the EU law are following :
EU law was mostly applied by the Supreme Court in cases concerning the defence of intelectual property. There are many ECJ decisions in this sphere, e. g. applying Council Directive to approximate the laws of the Member States relating to Trade marks (89/104/EEC), Council Regulation on the Community Trade mark 40/94/EB.
The Supreme Court sometimes applied EU law as source for interpreting national rule of law, pointing that certain Lithuanian laws were adopted in accordance with EU law rules. Also the Supreme Court considered it‘s decisions on the ECJ jurisprudence even before having an obligation to apply it.
Impact of EC law on the jurisprudence of the Supreme Administrative Court. This court was established in year 2001. This court is the one of first courts, which had International Courts‘ Jurisprudence Division in the structure. As administrative courts are the „youngest“ court system in Lithuania, it hadn‘t had enough practice in applying EC law, so the Supreme Administrative Court refered to the Supreme Court jurisprudence and applied EC law :
As additional source for argumentation (e. g. refering to the principle of good administration, deciding on the concept of asylant or on import customs duties).
As compulsory source of interpretation the national law (first time it was done by Vilnius Regional Administrative Court deciding on the case concerning Law of Telecommunication).

EU aquis in the case law of Lithuanian courts after Lithuania’s accession to the EU
Since 1 May 2004 Lithuanian courts became part of EU court network and this had two direct consequences :
First : National courts must now interpret and apply national law in full accordance with EU aquis.

To ensure this Art. 33 Paragraph 3 of Law on Courts was amended, establishing general obligation for Lithuanian courts to follow and apply EU statute and case law, including preliminary rulings on interpretation and application of primary and secondary EU law.

Also new art. 40(1) of Law on Courts was introduced, foreseeing the right for Lithuanian courts to apply for preliminary rulings to the ECJ, and stipulating, that, when the doubts on the content of EU law arises, it is obligation (rather than right) for the Supreme and Supreme Administrative courts of Lithuania as being the last instances for the relevant types of cases. Certain amendments also followed in laws on procedure : Code of civil procedure, Code of criminal procedure, Law on administrative procedure.

Second. Lithuanian courts must follow decisions and reasoning given by EU judicial institutions. To ensure this, Law on Courts was modified by :
Amending art. 23 paragraph 3, which now states that the Supreme Court shall analyse and sum up, in accordance with the interpretation by judicial institutions of the European Union, the practice of courts of general jurisdiction in the application of the legislation of the European Union and shall make recommendations on the cooperation between Lithuanian courts of general jurisdiction and judicial institutions of the European Union in ensuring uniform interpretation of legal acts of the European Union and their application in the Republic of Lithuania.
Amending art. 31 paragraph 3, which now foresees that the Supreme Administrative Court, in accordance with the interpretations of judicial institutions of the European Union, shall analyse and sum up the practice of administrative courts in applying the legislation of the European Union and shall make recommendations on the cooperation between administrative courts of Lithuania and judicial institutions of the European Union in ensuring uniform interpretation and application in the Republic of Lithuania of the legal acts of the European Union.
These amendments were implemented by establishing separate divisions on EU law in administrative structures of both Supreme courts and adding new sections for relevant case-law of the ECJ to the bulletins that these supreme judicial institutions in Lithuania regularly issue.

Incorporation of EU law into national legal system and relevant obligations of national courts are foreseen in paragraph 2 of the Constitutional Act Of The Republic Of Lithuania On Membership Of The Republic Of Lithuania In The European Union. This Constitutional act establishes supremacy of the EU law over the laws and other legal acts of the Republic of Lithuania and determines rules for its direct and indirect functioning and application. According to art. 291 of TFEU Member States shall adopt all measures of national law necessary to implement legally binding Union acts. It means obligations not only for national parliaments, but for national courts as well. So this also sets de jure responsibilities for Lithuania, such as :

1. Direct application of the EU law, when national law contradicts with EU aquis.
2. Application of directly applicable EU law.
3. Interpretation of national law in accordance with the EU law.

Direct application of the EU law, when national law contradicts with EU aquis.
Contradictions between national and EU law are settled following the principle of the supremacy of EU law, set by paragraph 2 of the Constitutional Act Of The Republic Of Lithuania On Membership Of The Republic Of Lithuania In The EU. EU law has supremacy over national laws and other legal acts, however it is not clear whether EU law is to be held superior over the Constitution Of Republic Of Lithuania as Constitutional Act remains silent on this point. According to case-law of the Constitutional Court superiority of national Constitutions remains legally non denied principle (decision of 14 March 2006).
2. From the case-law of Supreme Court one specific case should be mentioned, where Supreme Court applied not the art 805 par. 2 of the Code of civil procedure, setting rules for serving court’s documents to the party living abroad, according to which such documents stay in the case-file and are considered to be served, but turned to Council Regulation of 29 May 2000 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters. It foresees that court must hand document(s) to a person living in another Member State.
3. From the case-law of Supreme Administrative Court the case of tinted car windows could be mentioned, where national legal rule, prohibiting tinting front side-windows of all motor vehicles with any light transmission reducing films, was held incompatible with EU law.

Direct applying of EU law (regulations and decisions), which needs no transfering to national law, and direct applying of directives
1. The Supreme Court made a decision, concerning jurisdiction of Lithuanian courts on claims for compensations to passengers, established in Council and Parliament regulation No. 261/2004 establishing common rules for compensation and assistance to passengers on event of denied boarding, cancelation or long delay of flights. It applied the decision of the ECJ ion the case No. C-204/08 and rules of Regulation No. 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. As the Supreme Court decided that the case refers to Lithuanian courts’ jurisdiction, they will have to apply rules of Regulation No. 261/2004 (accually, it was already applied by the 1st District Court of Vilnius).
2. In administrative cases since 2004-05-04 deciding on liability for smuggling the court applied Council Regulation No. 918/83 (now replaced by Regulation No. 1186/2009) s etting up a Community system of reliefs from customs duties (in this case it was decided that small amount of money is not the subect for import customs duties).
3. Supreme Administrative Court in it‘s 2009-03-18 decision applied rules of Directive 2005/29/EB and Directive 1999/44/EB, also the ECJ decision in Becker case. The subject for the case was the concept of the customer agreement (preliminary contract of selling unfinished real estate). In this case the Applicant stated that rules of Directive should be applied directly, because the concept of customer is different according Lithuanian Civil Code and the Directive, but it was decided by the Court that the rules of Directive were properly transfered to national law.
Interpreting national law according the EU law
1. Constitutional Court held the possition (decision of 2006-12-21) that the jurisprudence of the ECJ and the ECHR are essential source for interpreting and applying Lithuanian law.
2. Common courts interpret national rules of law according the EC law since year 1995. Nevertheless courts usually do not interpret national law according the EC law directly, often they just make references to the acts of the EU. For example, in 2009-11-13 decision of Supreme Administrative Court decided on the question of the value of public procurement contract, which obviously overrun value of international supply. It applied art. 31 of the Directive No. 2004/18 and the ECJ jurisprudence. Directives and the ECJ jurisprudence are also applied in cases, considering free movement of employees, free movement of goods, competition law, cases on discrimination and social security matters (e.g. concerning right to receive money per diem during the business trips, also in the sphare of turism services).
3. Administrative courts (also pretrial institutions, hearing tax disputes) often applies EU law (Regulations and Directives) in tax disputes, while applying nacional laws on VAT, excise and customs matters.

Article 41 Right to good administration

41.2 a The right of every person to be heard before an individual measure is taken.
Is this right guaranteed in the procedural law for the administration/and the administrative courts/ in your country ?
Yes.
If so, is this a right only “on demand” or is it an obligation for the administration to give the individual this opportunity ?
In the Part. 1 of the Article 20 of the Law of Public Administration it‘s stated, that the person has a right to submit additional information and give explanations and opinion, also the right to remove the officer of the public authority.

Article 28 of the Law of Public Administration establishes the right to the public administration to question the person, with presented the request as the source for administrative procedure. There is no general duty for the public authority in all cases to hear the person during the administrative procedure before the administrative decision should be taken. It is only one exception to this rule. The person must be examined during the administrative procedure, if he or she appeals against a possible breach of his rights or interests. In that case, if the person refuses to be examined or on any other objective reasons, a person cannot be examined, the administrative procedure is terminated. The Article 30 of the Law of Administrative Procedure provides a special case, which imposes an obligation to the public administration to inform the person, if the inspection of actual data is on the spot.

Despite there is no general obligation to hear the person, but the case law developed the conditions for the implementation of the right to be heard, which require the public authority to take certain actions. One of those conditions is direct information of the person. For example, the Constitutional Court held that while setting limits of grounds for hunting, information a private landowner that his owned parcel of land will be used for hunting not directly but by publication at local newspapers, does not guarantee the right to be heard. Another condition for the impementation of the right to be heard is the tangibility. In the Kazokiškės case the Court menshioned that 14 day term for public access to relevant information was far too short and can not quarenteed the right to be heard.

41.2.b The right of every person to have access to his or her file
Is this right guaranteed in the administrative procedural law in your country ?
Part 1 of the Article 20 of the Law of Public Administration establishes person’s right to access his file and separately his right to participate in verifying the actual data on the place (Part 5 of Article 20 of Law of the Public Administration), as well, the right to obtain a written decision of the administrative procedure within 3 days after decision was taken.
Where there is the factual data inspection on the spot and during this inspection certain information may be disclosed, which, in accordance with the law, can not be public (state, official or commercial secret), in this case the person’s right to participation is limited and he may have access only to spot check the results.

41.2.c The obligation of the administration to give reasons for its decisions
Is there such an obligation in your country ? Can you describe how long such reasons may be – a few lines or several pages ?
Yes.
Part 1 of the Article 8 of the Law of Public Administration determines that an individual administrative decision must be based on the facts and legislation. This means that the decision should be referred to the reasons for the decision, clearly stated the relevant facts and legal basis for individual reasoning. If there are many facts, description of which covers a lot of space, they may be located in a separate document (investigative act, conclusion), which is attached to the decision as a supplement to and in conjunction with the decision shall be served on the interested parties. In cases where the decision is not justified with the facts and contains the only legal basis for a decision, the decision cannot be adjusted as justified. There are cases when the decision itself contains links to other acts of public administration, which states certain facts, for example, in a letter of Environmental Protection Inspectorate, in which certain violations of hunting rules, which invokes deprivation of the license to hunt, are indicated.
From 01.01.2009 an additional provision of the Law of Public Administration came into force, witch contents the general obligation for public authority to give reasons in the decision, if the decision consist the measures, which can influence the rights of the person. Judicial practice has no clare position, if there must be given the reasons in every decision of the public administration authority, or only in such decisions, which can have a an (negative) effect for a person.

Article 47 Right to an effective remedy and to a fair trial
47.1 The right to an effective remedy before a tribunal
This first paragraph is based on Article 13 of the European convention on Human Rights, ECHR but the right is more extensive than in the ECHR as the remedy must be before a court, not only a “national authority”.
Are there time limits for the administration to decide upon an application of a party ? Yes.
If this is the case, how long is this period of time (if it depends on the kind of case, please give some examples).
According to the Law of Public Administration, the administration should decide upon an application of a party in 20 days, but longer time limits are provided in case of more complex procedure. The specific time limits are regulated in certain laws, (e.g., Tax administration may decide on tax disputes in 30 or 60 days, concerning the decisions on questions, concerning competition, the administration may decide not later as in 5 months)
Is there a legal remedy if the administration fails to decide within that time limit ?
Yes. The legal remedy is named as “claim against silence”. The court can make a decision obliging the administration to issue the decision.
Has your country guaranteed the remedy before a court for everyone whose rights and freedoms guaranteed by the law of the Union are violated ?
Yes.
Is it necessary to appeal to a higher administrative authority before a party is entitled to appeal to a court ? Please give the number of instances within the administrative law suit.

In Lithuania before applying to an administrative court, the individual acts or inaction may be, in accordance with the Law of Administrative Procedure, or in certain cases, must be challenged before in a non-judicial body. In certain cases it is necessary to appeal to a higher administrative authority or to the special non-judicial body.

Such obligation for pretrial procedure before applying to the administrative court is designated in several cases : tax disputes, in cases concerning the decisions of valuation real estate ; in cases, concerning the level of disability and level of work setting ; cases concerning land-use planning processes .

Institutions, which have competence to deal with certain claims, may differ according the nature of the claim. Single level of the non-judicial preview before appealing to the administrative court is established for cases concerning the valuations decisions for real estate (Centre of Registers). Specific pretrial procedure is applied for resolution tax disputes. Obligatory pretrial tax dispute resolution procedure is set in the Law of Tax Administration. First obligatory stage for tax disputes resolution is Central Tax Authority, then it is a possibility (not an obligation) to appeal to special institution – Commission on Tax Disputes under the Government of Lithuania. But in case when tax audit is made and premier decision on assessment is made by Central Tax Administration, it is obligatory to appeal to the Commission on Tax Disputes before applying to the administrative court.
Two levels of the non-judicial procedure before the administrative court are set in cases concerning the level of disability and level of work setting (first stage - Assessment Office for Disability and Work of the Ministry of Social Security and Labour, second stage - Settlement Commission on the Social Security and Labour Ministry, after that - Regional Administrative Court), in cases, concerning planning of land-use processes and procedures disorder (first stage - county administration, second stage - the National Planning and Building Inspection under the Ministry of Environment, after that – Regional Administrative Court).

In all cases decisions of such disputes’ resolution commissions or non-judicial bodies may be appealed to the administrative courts.

The stage of appeals to general non-judicial bodies (administrative commissions) is an alternative to administrative dispute resolution. The system of administrative commissions will be reformed, at the moment it is : the municipal administrative disputes commissions and the Chief Administrative Disputes Commission.

The structure of the administrative courts are : 5 Regional Administrative Court is the 1st. instance for administrative disputes and the Supreme Administrative Court is the single court of appeal instance.

47.2 The right to a fair hearing
This second paragraph corresponds to Article 6.1 of the ECHR but the right to a fair hearing is not confined to disputes related to civil law rights and obligations. Thus, this right is also more extensive than in the ECHR.
Does your country fulfill this obligation regarding the application of EC Law ?
Para 2 of Article 5 of the Law on Courts of the Republic of Lithuania determines the obligation of the court (judge) to ensure that hearing of a case is fair and public and within a reasonable term. Article 7 of the Law states that hearings in courts are public unless otherwise is provided by law. The mentioned guarantees are provided for in every type of court proceedings (criminal, civil or administrative).
The Law of Administrative procedure guarantee the right to get produce the evidence, the possibility to comment on its existence, contents and authenticity, the right to submit questions, requests and provide necessary explanation during all the proceedings for the parties (Article 53 of the Law on Administrative Proceedings). The effectiveness of the right to be heard is ensured by the obligation of the court to provide reasons why certain explanations or evidence submitted by the party were not accepted. However, this obligation does not mean that a court is obliged to extensively comment on every single argument of a party.
Parties to the case have also a right (but not a obligation) to comment on the legal situation. The Supreme Administrative Court of Lithuania states that the court is generally not bound by the legal arguments submitted by the parties with the claim, written response, other procedural documents or oral explanations.
The Constitution does not detail the exact procedure for how one should be heard. Oral hearing is directly guaranteed by the Constitution only for the detainee in criminal cases, in the administrative and civil cases this is the subject for the regulation by procedural laws.
Oral hearing as a rule is held in administrative courts of first-instance. The procedure at the appeal court is oral, unless the parties have requested otherwise. At the Supreme Administrative Court the procedure is written as a rule, though the Court is granted the discretionary right to hold on oral hearing.