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RESOLUTION OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF MOLDOVA

of September 24, 2002 No. 35

About control of constitutionality of the orders of the Government No. 1009 of September 27, 2001 "About pre-shipment inspection of imported goods" and No. 1139 of October 25, 2001 "About approval of the Service provision agreement on pre-shipment inspection"

Name of the Republic of Moldova

Constitutional court in structure:

Victor PUSKAS is chairman, the judge-speaker

Mihai KOTOROBAY is judge

Mircha of the SOUTH - the judge

Konstantin LOZOVANU is judge

To Dumitr PULBERE - the judge

Elena SAFALERU is judge-speaker with the assistance of Corinna of Pop, the secretary of meeting, deputies of Parliament Valeriu Pleshk and Alexey Ivanov, authors of the address, 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, Art. 4 of h (1) the item and) and Art. 16 of h (1) the Code of the constitutional jurisdiction, also N1139 of October 25, 2001 "About approval of the Service provision agreement on pre-shipment inspection considered in open plenary meeting case on control of constitutionality of the orders of the Government N1009 of September 27, 2001 "About pre-shipment inspection of imported goods"".

The address of deputies Aleksandra Oleynika, Valeriu Pleshk, Vitaliye Mrug and the address of group of 29 deputies formed the basis for consideration of the case: Victor Andrushchak, Mirchi Anton, Nicolae Bondarchuk, Dmitriye Karapir, Ivana Kylchik, Aleksandra Chuguryana, Mikhail Kitsul, Valeriou Dauga, Vladimir Doronin, Vladimir Eremchuk, Yuriye Eremin, Boris Hotnichuk, Vladimir Yuzvenko, Alexey Ivanov, Aleksandra Zhdanova, Raisa Morarenko, Oleg Mory, Tatyana Nekoare, Victoria Novick, Marina Podolyan, George Pop, Dumitra Prizhmiryana, Mikhail Rusu, Victor Stepanyuk, Yuriye Stoykov, Jonah Shpak, Boris Shtep, Iona Ursu and Yuriye Zabunov provided on March 1 and 25, 2002 according to Art. 24 and 25 of the Law on the Constitutional court, Art. 38 and 39 of the Code of the constitutional jurisdiction.

Having analyzed addresses, having determined that they treat one legal problem which subject is pre-shipment inspection of imported goods, the Constitutional court determinations of March 25, 2002 combined them in one production and included in the agenda for consideration on the merits.

Having considered the case papers, the conclusions provided by Parliament, the President of the Republic of Moldova, the Government, the Ministry of Justice, the Ministry of Foreign Affairs, the Industry ministry, the Ministry of Economics, the Ministry of Finance, Customs department, Department of standardization and metrology, Chamber of Commerce and Industry, having heard the message of judges-speakers, arguments of authors of the address and the representative of the Government, the Constitutional court established:

1. On September 27, 2001 the Government accepted the Resolution N1009 "About Pre-shipment Inspection of Imported Goods" * (daleepostanovleny N 1009). This resolution Government entered pre-shipment inspection of imported goods on the territory of the Republic of Moldova, appointed the SGS Societe Generale de Surveillance company (further - the SGS company) as the service provider on pre-shipment inspection of imported goods, approved Regulations on implementation of pre-shipment inspection of imported goods etc.

Pre-shipment inspection of imported goods was entered for the purpose of control of correctness of declaring of quantity, quality and cost of imported goods, and also the correct determination of customs classification. On October 25, 2001 the Government accepted the Resolution N1139 "About Approval of the Service Provision Agreement on Pre-shipment Inspection" ** (further - the Resolution N 1139). According to the above-named resolution the agreement was signed between the Government of the Republic of Moldova and the SGS company; pre-shipment inspection of imported goods is entered since December 1, 2001. In preamble of the agreement it is noted that it was signed for the purpose of simplification of trade and prevention of making of fraud and tax avoidance in case of transactions on import and the increases in level of protection against commodity import which are not corresponding to contract provisions on quality.

2. According to both groups of deputies, in case of adoption of the Resolution N1009 Government exceeded the authority and broke the constitutional regulations concerning market economy, protection of fair competition, separation of the authorities in the state.

In both addresses it is emphasized that the Government had the right to implement only pre-shipment inspection of imported goods, and its introduction is special powers of Parliament.

The group of 29 deputies of Parliament made also inquiry about control of constitutionality of the Resolution N 1139, having adduced the same arguments, having noted at the same time that the company designed to perform pre-shipment inspection of imported goods was selected without carrying out the tender, and it is the certificate of the fact that the state did not take necessary measures for respect for the principle of market economy and protection of fair competition. Authors of the address claim that the Service provision agreement on pre-shipment inspection was signed by the Government of the Republic of Moldova under pressure of terms of payment of the SGS company of the considerable amount as a result of the losses suffered by the company after termination on July 2, 2001 of the similar agreement that contradicts liberty principle of the conclusion of agreements.

Authors of addresses consider that the actions the Government ignored Art. provisions 6, of 7, of 9, of 60, of 66, of 102, 126 and 129 Constitutions.

3. Having correlated the disputed acts to provisions of the Supreme law and the legislation in the field, the Constitutional court notes the following.

Art. 126 of h (1), h (2) a subitem), b) and c) Constitutions determines that the economy of the Republic of Moldova is market, and the state shall provide regulation of economic activity according to the law, freedom of trade, protection of fair competition, creating favorable conditions for use of all production factors, protection of national interests in the field of economic activity.

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