Resolution on Reference of the Republic of Lithuania to the Court of Justice of the European Communities


Published: 2009-10-11

Subscribe to a Global-Regulation Premium Membership Today!

Key Benefits:

Subscribe Now for only USD$20 per month, or Get a Day Pass for only USD$4.99.
 
SEIMAS OF THE REPUBLIC OF LITHUANIA
 
RESOLUTION
ON REFERENCE OF THE REPUBLIC OF LITHUANIA
TO THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES
 
10 November 2009
Vilnius
 
The Seimas of the Republic of Lithuania,
invoking the Constitutional Act on Membership of the Republic of Lithuania in the European Union, which, under Article 150 of the Constitution, is an integral part of the Constitution of the Republic of Lithuania and paragraph 1 whereof stipulates that ‘the Republic of Lithuania as a Member State of the European Union shall share with or confer on the European Union the competences of its State institutions in the areas provided for in the founding Treaties of the European Union and to the extent that, together with the other Member States of the European Union, it would, together with other Member States of the European Union, meet its membership commitments in those areas as well as enjoy the membership rights’;
in compliance with paragraph 1 of Article 182 of the Statute of the Seimas, under which the opinion of the Seimas is expressed on an issue of national importance;
invoking paragraph 2 of the Constitutional Act on Membership of the Republic of Lithuania in the European Union, under which the norms of the European Union law are a constituent part of the legal system of the Republic of Lithuania, and where it concerns the founding Treaties of the European Union, the norms of the European Union law are applied directly and have supremacy over the laws and other legal acts of the Republic of Lithuania;
seeking to urge the Government of the Republic of Lithuania to avail of the possibility granted to a Member State by Article 230 of the Treaty establishing the European Community to bring actions to the Court of Justice of the European Communities on grounds of lack of competence;
having regard to Council Regulation (EC) No 168/2007 establishing a European Union Agency for Fundamental Rights, in particular Article 4 of this Regulation;
taking account of adoption by the European Parliament on 17 September 2009 of the resolution on the Lithuanian Law on the Protection of Minors against the Detrimental Effects of Public Information expressing its concern that ‘the wording of the law, with particular reference to Article 4 thereof, is vague and legally unclear and might lead to controversial interpretations’, also the concern with regard to certain other legislative amendments currently under discussion by the Seimas of the Republic of Lithuania;  
believing that the European Parliament resolution is specifically based on Directive 2000/43/EC and Directive 2000/78/EC ‘prohibiting direct and indirect discrimination on grounds of racial or ethnic origin, religion or belief, disability, age or sexual orientation’, as well as the Commission proposal of 2 July 2008 for a Council directive on implementing the principle of equal treatment between persons irrespective of religion or belief, disability, age or sexual orientation (COM(2008)0426) and Article 21(1) of the Charter of Fundamental Rights of the European Union, which prohibits ‘[A]ny discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation’, thus assuming that the law adopted by the Seimas of the Republic of Lithuania and other draft laws under consideration may contradict the mentioned directives of the European Union, draft directives and the Charter of Fundamental Rights of the European Union;
being concerned that in point 1 of the resolution the European Parliament asks the European Union Agency for Fundamental Rights, which was established by Council Regulation (EC) No 168/2007 Articles 2, 3 and 4 whereof clearly define the objective, scope and tasks of the Agency, ‘to give an opinion on the law and the amendments in the light of the EU Treaties and EU law’;
taking into consideration that under Article 4 (1) (d) of Council Regulation (EC) No 168/2007 one of the tasks of the European Union Agency for Fundamental Rights is, on its own initiative or at the request of the European Parliament, the Council or the Commission, to formulate and publish ‘conclusions and opinions on specific thematic topics, for the Union institutions and the Member States when implementing Community law’;
being convinced that Article 4 (2) of Council Regulation (EC) No 168/2007 establishes that such conclusions, opinions and reports ‘shall not deal [...] with the question of whether a Member State has failed to fulfil an obligation under the Treaty within the meaning of Article 226 of the Treaty’, and when it is considered that the Member State has failed to fulfil an obligation under the Treaty establishing the European Community, the question is dealt with in compliance with the procedure laid down in Article 226 of the Treaty, i. e., the Commission delivers a reasoned opinion on the matter after giving the State concerned the opportunity to submit its observations;
emphasizing that the request to the European Union Agency for Fundamental Rights is made seeking ‘to produce legal effects vis-à-vis third parties’ within the meaning specified in Article 230 of the Treaty establishing the European Community;
expressing concern about the assertion that the Republic of Lithuania Law on the Protection of Minors against the Detrimental Effects of Public Information contravenes the Community law, including Directives 2000/43/EC and 2000/78/EC, and this means that the Republic of Lithuania allegedly fails to fulfil the obligation under the Treaty establishing the European Community and thus Article 226 of the Treaty establishing the European Community should be applied; this would apply to the Charter of Fundamental Rights of the European Union immediately on its entry into force or to any other directive to be adopted in the future and implementing the principle of equal treatment between persons irrespective of religion or belief, disability, age or sexual orientation;
believing that for the above mentioned reasons the European Union Agency for Fundamental Rights is not entitled under the EU law to deliver an opinion on the law and the amendments in the light of the EU Treaties and EU Law and the European Parliament had no right to request the European Union Agency for Fundamental Rights to deliver such an opinion on the Republic of Lithuania Law on the Protection of Minors against the Detrimental Effects of Public Information;
having regard to the fact that Article 230 of the Treaty establishing the European Community stipulates that ‘the Court of Justice shall review the legality of acts adopted […] by the European Parliament […] intended to produce legal effects vis-à-vis third parties’ and that ‘it shall for this purpose have jurisdiction in actions brought by a Member State […] on grounds of lack of competence, infringement of an essential procedural requirement, infringement of this Treaty or of any rule of law relating to its application, or misuse of powers’,
believes that the European Parliament resolution of 17 September 2009 on the Lithuanian Law on the Protection of Minors against the Detrimental Effects of Public Information, in particular point 1 thereof, under Article 230 of the Treaty establishing the European Community, constitutes an illegal act on grounds of lack of competence;
expresses concern that, if not formally declared void, this European Parliament resolution could create a dangerous precedent, allowing the European Parliament and the European Union Agency for Fundamental Rights to interfere with the prerogatives of the European Commission and the Court of Justice of the European Communities under to Article 226 of the Treaty establishing the European Community;
calls on the Government of the Republic of Lithuania, under Article 230 of the Treaty establishing the European Community, to bring an action by 17 November 2009 against the European Parliament before the Court of Justice of the European Communities concerning the legality of the European Parliament resolution and demand that the European Parliament resolution of 17 September 2009 on the Lithuanian Law on the Protection of Minors against the Detrimental Effects of Public Information, in particular point 1 thereof, be declared void;
regrets and expresses deep concern over the attempt of the European Parliament, in a matter seemingly falling outside the scope of its competence, to question the legality of the law that has been adopted by an overwhelming majority of a democratically elected Parliament of a Member State;
instructs the Speaker of the Seimas of the Republic of Lithuania to forward this resolution to the President of the Republic of Lithuania, the Prime Minister of the Republic of Lithuania, the European Parliament, the Council, the European Commission, the governments and parliaments of the Member States and of the candidate countries, the European Union Agency for Fundamental Rights and the Council of Europe. 
The resolution shall enter into force as of adoption thereof.
 
 
 
 
 
speaker of the seimas                                                                           irena degutienė