of October 17, 2000 No. 36
About control of constitutionality of Art. 14 of h (6) the Law on the budget for 2000 No. 918-XIV of April 11, 2000 *
Name of the Republic of Moldova
Constitutional court in structure:
Pavel BARBALAT is chairman
Nicolae KISEEV is judge
Mihai KOTOROBAY is judge-speaker
Konstantin LOZOVANU is judge-speaker
George SUSARENKO - the judge
Ion VASILATI is judge with the assistance of Alena Balaban, the secretary of meeting, the lawyer Nicolae Gor, the representative of the deputy of Parliament Vladimir Reus, the author of the address, Ion Kryange, the permanent representative of Parliament in the Constitutional court, Galina Kirinchuk, the permanent representative of the Government in the Constitutional court, being guided by Art. 135 of h (1) the item and) Constitutions, Art. 4 of h (1) the item and) the Law on the Constitutional court and Art. 16 of h (1) the Code of the constitutional jurisdiction, considered in open plenary meeting case on control of constitutionality of Art. 14 of h (6) the Law on the budget for 2000 N918-XIV of April 11, 2000.
The address of the deputy of Parliament Vladimir Reus provided on May 29, 2000 according to Art. 24 and Art. 25 of the Law on the Constitutional court, Art. 38 and Art. 39 of the Code of the constitutional jurisdiction formed the basis for consideration of the case.
The address was accepted determination of the Constitutional court of July 11, 2000 to consideration on the merits and is included in the agenda.
During preliminary consideration of the address the Constitutional court requested the conclusions of Parliament, the President of the Republic of Moldova, the Government, the Ministry of Finance, Department of customs control.
Considering case papers, the message of judges-speakers, explanations of the parties and data specified in meeting, the Constitutional court established:
1. Art. 14 of h (6) the Law on the budget for 2000 the placement on free customs warehouses of the goods which are in the transit mode through customs area of the Republic of Moldova, and also excise goods (products) was forbidden.
That activities of free customs warehouses are one of the types of business activity established by the law the author of the address claims that the prohibition provided by the disputed article of the Law on the budget infringes the rights of economic agents to implementation of such activities in the Republic of Moldova and by that the legal, organizational and economic principles of business activity are broken. The author of the address asks to exercise control of constitutionality of Art. 14 of h (6) the Law on the budget for 2000 as the contradicting Art. 6, of 54, of 72, of 102, 126 Constitutions, to some international treaties, one of the parties of which are the Republic of Moldova, and to bilateral agreements.
2. Having considered the arguments given in the address, the Constitutional court established the following objective circumstances.
The provision subjected to constitutionality control contains the following concepts: the free customs warehouse, goods which are in the transit mode, excise goods (products).
Having analyzed the legislation regulating customs activities in the Republic of Moldova the Constitutional court notes that the specified concepts are used in different special regulations. Value of these concepts reveals in the presidential decree of the Republic of Moldova, in some provisions approved by the Government and the central industry bodies of the state.
Some bylaws, without having the constitutional legal framework, in details regulate obligatory legal regime of the customs relations in the territory of the Republic of Moldova, including activities of free customs warehouses.
The presidential decree of the Republic of Moldova N28 of January 28, 1994 to State Department of customs control was authorized to create free customs warehouses in the territory of the Republic of Moldova, and the Government owed approve regulations of free customs warehouses.
According to the Regulations on procedure for creation and activities of free customs warehouses in the territory of the Republic of Moldova approved by the Order of the Government N608 of August 10, 1994 (it is officially not published), free customs warehouses can be created by legal entities, and also the physical persons with the status of the business owner registered in the procedure established in the Republic of Moldova. The territory of free customs warehouse is considered the customs control zone.
Having determined that activities of free customs warehouses represent type of business activity which according to the Law N332-XIV of March 26, 1999 "About issue of licenses for some types of activity" ** is performed based on the license, the Constitutional court notes that "free customs warehouse" knows as well other value - customs regime.
The concepts "customs regime", "excise goods", "transit", "free customs warehouse" are the general concepts given in the Provision "About Procedure for Customs Clearance and Collection of Customs Payments when Importing Excise Goods to the Republic of Moldova" approved on May 25, 1998 by the Ministry of Finance and Department of customs control ***. The customs regime means set of the general provisions determining the status of goods and vehicles, moved through customs border of the Republic of Moldova for the customs purposes.
According to provision gasoline, diesel fuel, tobacco, tobacco products, alcohol, alcoholic beverages and beer are excise goods.
For the purpose of streamlining of the customs relations the specified provision established some types of customs regimes for goods and vehicles, including transit and free customs warehouse. Transit is customs regime in case of which goods move under customs control between two customs authorities of the Republic of Moldova, including through the territory of foreign state, without collection of customs duties, taxes, and also without application to goods of the measures provided by economic policy. The free customs warehouse as customs regime represents the special place for temporary storage in the mode of customs supervision of the goods in transit imported to the Republic of Moldova or being in its territory, without collection on storage time of customs payments, application of other measures provided by economic policy.
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