of June 20, 2006 No. 10
About control of constitutionality of some provisions of the Law No. 61-XV of February 21, 2003 "About modification and amendments in the Law on consumer cooperation No. 1252-XIV of September 28, 2000"
Name of the Republic of Moldova
Constitutional court in structure:
Victor PUSKAS is chairman
Alina YANUCHENKO is judge-speaker
Mircha of the SOUTH - the judge
To Dumitr PULBERE - the judge
Elena SAFALERU is judge
Ion VASILATI is judge with the assistance of Victoria Botnaryuk, the secretary of meeting, George Susarenko, the deputy of Parliament, the author of the address, Ion Mytsu, the permanent representative of Parliament in the Constitutional court, Nicolae Eshana, the deputy minister of justice, the permanent representative of the Government in the Constitutional court, to Vasile Groce, the chairman of the district union of consumer cooperatives of the area Streshen, being guided by Art. 135 of the h. (1) item and) Constitutions, Art. 4 of the h. (1) item and) Law on the Constitutional court, Art. 4 of the h. (1) item and) and Art. 16 of the h. (1) the Code of the constitutional jurisdiction, considered in open plenary meeting case on control of constitutionality of some provisions of the Law on consumer cooperation of N1252-XIV of September 28, 2000 in edition of the Law N61-XV of February 21, 2003 "About modification and amendments in the Law on consumer cooperation of N1252-XIV of September 28, 2000".
The address of the deputy of Parliament George Susarenko provided on January 27, 2006 according to provisions of Art. 24 and Art. 25 of the item g) the Law on the Constitutional court, Art. 38 of the h formed the basis for consideration of the case. (1) item g) and Art. 39 of the Code of the constitutional jurisdiction.
The address was accepted determination of the Constitutional court of February 10, 2006 to consideration on the merits.
In subject of the address the Constitutional court requested the points of view of Parliament, the President of the Republic of Moldova, the Government, the Ministry of Justice, the Central union of MOLDCOOP consumer cooperatives of the Republic of Moldova, department of the civil law of the State university of Moldova.
Having considered case papers, having heard the message of the judge-speaker and arguments of the parties,
The constitutional court established:
1. On February 21, 2003 the Parliament adopted the organic Law N 61-XV "About modification and amendments in the Law on consumer cooperation of N1252-XIV of September 28, 2000" 1 (further - the Law N 61-XV).
The author appealed to the Constitutional court with request about implementation of the constitutional control of following provisions of the Law N61-XV:
a) Art. 58 of the h. (2) the item m) according to which the administrative board of the territorial union "agrees to property acquisition of consumer cooperatives - members of the union";
b) Art. 62 of the h. (1) the item l) according to which the executive bureau of the territorial union "considers questions of property acquisition, available within the territorial union, and submits the decisions made on them for approval of administrative board";
c) Art. 74 of the h. (1) the item i), providing that the congress of consumer cooperation "makes decisions on property acquisition of consumer cooperation";
d) Art. 77 of the h. (2) the item r) and the item s) according to which the administrative board of the central union "approves transfer to pledge (including mortgage) and leasing or for rent property of consumer cooperation; agrees to property acquisition of consumer cooperatives, and also property of the territorial unions";
e) Art. 81 of the item v) according to which the executive bureau of the central union "considers and offers on approval of administrative board transfer to pledge (including mortgage) and leasing or for rent property of consumer cooperatives, territorial unions and the central union";
f) Art. 89 of the h. (3), third and fourth offers: "Property acquisition, belonging to the indivisible property assigned to consumer cooperatives and the territorial unions can be performed precisely with the consent of superior organizations of consumer cooperation according to the procedure, provided by this law. The agreements on property acquisition of consumer cooperation signed without observance of provisions of this law are invalid by right".
Affirms as reasons for the address that the given provisions of the Law N61-XV contradict regulations of Art. 9 of the h. (3), Art. 46 of the h. (1), Art. 126 of the h. (1), Art. 127 of the h. (1) and h. (2) Constitutions. In this sense it is noted that law provisions according to which alienation is forbidden transfer to pledge, mortgage and leasing of property of consumer cooperation without the consent of superior organizations of consumer cooperation, violate one of the main attributes the rights sobstvennostirasporyazheny and have restrictive character contrary to provisions of Art. 54 of the h. (1), h. (2) and h. (4) Constitutions.
2. Having considered the addresses of provision criticized by the author in the ratio with the constitutional regulations of the Art. 9, of the Art. 46, of the Art. 126, of the Art. 127 about guarantee and protection of the property right, the Art. 54, causing restriction of implementation of some rights or freedoms, and also with law provisions in the field, the Constitutional court notes the following.
The law on consumer cooperation of N1252-XIV of September 28, 2000 goda2 (further - the Law N1252-XIV) establishes legal, economic, social and administrative basis of creation and activities of consumer cooperation in the Republic of Moldova.
Need of regulation of activities of consumer cooperation including the property mode, the special organic law it is determined by the purposes, tasks and specifics of the organizations of consumer cooperation as the components of national economy and social life performing economic activity in private sector of market economy.
According to Art. 4 of the Law N1252-XIV the organization of consumer cooperation is the non-governmental and non-profit organization performing economic activity for requirements satisfaction and interests of the members according to this law and with the charter which main objectives treat: satisfaction of interests and needs of unitholders, creation and development of infrastructure, expansion of consumer cooperation, consumer protection, influence on policy in the field of consumption, other tasks according to the legislation and articles of organization.
The organizations of consumer cooperation have the right to develop and external economic activity (the Art. 5).
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