A case initiated with respect to the Minister’s order, which partially suspends the decision by the Rezēkne City Council on catering costs in the municipal institutions of education of Rēzekne
On 14 February 2018, the 3rd Panel of the Constitutional Court initiated case “On Compliance of the Order by the Minister for Environmental Protection and Regional Development of 26 September 2017 No. 1-2/7346 “On Suspending Para 1, in the part determining catering costs (parents’ payment) in the special pre-school institutions of education, and suspending Para 7 of the Decision by the Rēzekne City Council of 22 December 2016 No. 1872 “On Determining the Catering Costs in the Municipal Institutions of Education of Rēzekne and Approving the Mark-up” with Section 49 of the Law “On Local Governments”.”
The Contested Act
The Order by the Minister for Environmental Protection and Regional (hereinafter also – the Minister) of 26 September 2017 No. 1-2/7346 “On Suspending Para 1, in the part determining catering costs (parents’ payment) in the special pre-school institutions of education, and suspending Para 7 of the Decision by the Rēzekne City Council of 22 December 2016 No. 1872 “On Determining the Catering Costs in the Municipal Institutions of Education of Rēzekne and Approving the Mark-upˮ[1].
The Norm of Higher Legal Force
Section 49 of the law “On Local Governments”: “The operation of an unlawful binding regulation or other regulatory enactment or specific paragraphs of such issued by a city or municipality council, except the operation of decisions taken in accordance with the procedures of Section 47 of this Law, may be suspended by a substantiated order of the Minister for Environmental Protection and Regional Development. The order shall indicate the paragraphs of the specific binding regulations or other normative enactment that are to be revoked as unlawful, or shall indicate that the binding regulations or other regulatory enactment are to be revoked in their entirety. The order shall be published in the official gazette Latvijas Vēstnesis within three days from its issue and shall be sent to the chairperson of the relevant city or municipality council, who shall be responsible for its implementation.
The chairperson of the city or municipality council shall convene, within two weeks after receipt of an order from the Minister for Environmental Protection and Regional Development, an extraordinary meeting of the city or municipality council in which shall be examined the issue regarding revocation of the relevant binding regulations or other regulatory enactment or specific paragraphs of such. The Minister for Environmental Protection and Regional Development shall be timely notified of the time and place of the extraordinary meeting of the city or municipality council.
If the city or municipality council fails to take a decision to revoke the relevant binding regulations or other regulatory enactment or specific paragraphs thereof, it shall submit an application to the Constitutional Court regarding the revocation of the order of the Minister within three months. In such case the order of the Minister for Environmental Protection and Regional Development, regarding the suspension of the operation of the city or municipality council binding regulations or other regulatory enactment or specific sections thereof, shall remain in force until the proclamation of the judgment of the Constitutional Court.
The city or municipality council has no right to submit an application to the Constitutional Court regarding the revocation of the order of the Minister for Environmental Protection and Regional Development, if it within two months following the day of receipt of the opinion of the Ministry of Environmental Protection and Regional Development has not fulfilled the duty to take a decision determined in Section 45, Paragraph four of this Law in which a substantiation is provided why the city or municipality council does not agree with that specified in the opinion of the Ministry of Regional Development and Local Government Matters.
If the city or municipality council or its chairperson fail to implement the provisions of Paragraph two or three of this Section, the unlawful binding regulations or other regulatory enactment or specific paragraph thereof shall be considered to no longer be in force. The Minister for Environmental Protection and Regional Development shall issue a notice regarding such in the official gazette Latvijas Vēstnesis.”
The Facts
The case was initiated with regard to an application by the Rēzekne City Council (hereinafter – the Council). On 26 September, the Minister by the contested act suspended some paragraphs in the Decision of 22 December 2016 by the Council No. 1872 “On Determining Catering Costs in the Municipal Institutions of Education of Rēzekne and Approving Mark-ups” (hereinafter – the Decisions). The Minister holds that the Council, in adopting the Decision, has violated regulatory enactments that establish its obligation to provide catering in the special institutions of education subordinated to the local government.
The Council has examined the contested act at an extraordinary sitting and decided to leave the Decision unamendment and to submit an application to the Constitutional Court regarding the contested act. The Council Holds that in issuing the contested act the Minister has exceeded the jurisdiction granted to him in Section 49 of the law “On Local Governments”. It is alleged that the Decision is not a regulatory enactment; therefore the Minister cannot review its legality.
The Council also notes that, in adopting the Decision, it has acted in compliance with requirements of regulatory enactments. The contested order is said to be substantiated by Para 6 the Cabinet Regulation of 15 July 2016 No. 477 “The Procedure of Financing Institutions of Special Education, Boarding Schools and Classes (Groups) of Special Education in Institutions of General Education”[2]. However, the Cabinet, allegedly, had not been authorised by law to issue this norm.
Legal Proceedings
The Constitutional Court has requested the Minister to provide a reply on the facts of the case and legal substantiation by 16 April 2018.
The term for preparing the case is 14 July 2018. The Court shall decide upon the procedure and the date for hearing the case after the case has been prepared.
[1] The contested act is available here: https://www.vestnesis.lv/op/2017/195.4 (accessed: 14.02.2018).
[2] Sub-para 2.2. of the Cabinet Regulation of 15 July 2016 No. 477 “The Procedure of Financing Institutions of Special Education, Boarding Schools and Classes (Groups) of Special Education in Institutions of General Educatio” provides that the costs of mainting an institution of education for institutions of education referred to in Sub-para 2.2. of this Regulation are covered from the local government budget resources.
Open in PDF: 2018-07-05_PR_par_ierosinasanu_ENG
Linked case: 2018-07-05