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DECISION OF THE CONSTITUTIONAL COURT OF UKRAINE

of December 15, 2004 No. 21-rp/2004

On the case of the constitutional representation of 49 People's Deputies of Ukraine concerning compliance of the Constitution of Ukraine (constitutionality) of provision of part one of article 73 of the Code of trade seaworthiness of Ukraine (case on seaport as the state company)

Case No. 1-17/2004

NAME OF UKRAINE

Constitutional court of Ukraine as a part of judges of the Constitutional Court of Ukraine:

Selivon Nikolay Fedosovich - the chairman,

Voznyuk Vladimir Denisovich,

Evgrafov Pavel Borisovich,

Kostitsky Mikhail Vasilyevich,

Mironenko Alexander Nikolaevich - the judge-speaker,

Nemchenko Vasily Ivanovich,

Wheaten Valeria Grigoryevna,

Savenko Nikolay Dmitriyevich,

Victor Egorovich's buffoons,

Stanik Syuzanna Romanovna,

Tkachuk Pavel Nikolaevich,

Chubar Lyudmila Panteleevna,

Shapoval Vladimir Nikolaevich,

considered at plenary meeting case on the constitutional representation of 49 People's Deputies of Ukraine concerning compliance of the Constitution of Ukraine (constitutionality) of provision of part one of article 73 of the Code of trade seaworthiness of Ukraine (further - the Code) by determination of seaport by the state company.

Having heard the judge-speaker Mironenko O. M. and having researched case papers, the Constitutional Court of Ukraine established:

1. Affirms as the constitutional provision that determination in part one of article 73 of the Code of seaport only by the state company breaks freedom of business activity and liberty of choice of consumers, leads to infringement of interests of subjects of housekeeping of non-state pattern of ownership, causes illegal restriction of the competition in the sphere of trade navigation.

With respect thereto authors of the constitutional representation appealed to the Constitutional Court of Ukraine with the petition to recognize regulations of part one of article 73 of the Code on determination of seaport only by the state company such which does not answer instructions of parts one, third article 42 of the Constitution of Ukraine.

2. In the answers of the President of Ukraine, the Chairman of the Verkhovna Rada of Ukraine, the Cabinet of Ministers of Ukraine, the Ministry of transport of Ukraine received on requests of the Constitutional Court of Ukraine, Fonda of state-owned property of Ukraine, the Antimonopoly Committee of Ukraine, the State committee of Ukraine concerning regulatory policy and entrepreneurship, the Odessa regional public administration is stated that the challenged provision of part one of article 73 of the Code does not contradict to parts one, third Article 42, to other articles of the Constitution of Ukraine.

On reasons for the line item specified in letters such main arguments are adduced: a) the combination of state regulation of activities of seaport as subject of natural monopolies with recognition for port areas of possibility of housekeeping of the companies and organizations of all patterns of ownership provides balance of interests of society, all business entities and consumers of services in the sphere of trade navigation; b) specific functions of the state port do not belong to business activity, and are obligatory state services according to obligations of Ukraine in international treaties; c) determination of seaport as state company is the sales warranty of obligation of the state on providing rights and freedoms of man and citizen, ecological and economic safety, safety of navigation; d) it agrees the Constitution of Ukraine the public relations in the sphere of entrepreneurship including restrictions of the right to business activity, can be settled by the legislation, and legal status of seaports is determined by the laws of Ukraine.

The president of the Ukrainian Union of Industrialists and Entrepreneurs supported the point of view of the person of law on the constitutional representation and the argumentation provided by it.

3. Having researched the question which is brought up in the constitutional representation, the Constitutional Court of Ukraine specifies the following.

3.1. Part one of article 42 of the Constitution of Ukraine about which it is in the petition, guarantees everyone "the right to business activity which is not forbidden by the law".

Implementation of the constitutional instruction "which is not forbidden by the law" is not limited to provisions of the Law of Ukraine "About entrepreneurship" to which People's Deputies of Ukraine in case of reasons for the line item refer. Restriction of business activity can be set also by other laws, in particular the Code.

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