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RESOLUTION OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF MOLDOVA

of November 30, 2006 No. 20

About control of constitutionality of some provisions of the Law on interpretation of provisions of some legal acts No. 245-XVI of October 20, 2005

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-speaker with the assistance of Maya Laur, the secretary of meeting, Vitaliye Nagachevski and Isiah Kibak, representatives of the deputy of Parliament Vitalia Pavlichenko, the author of the address, Ion Mytsu, the permanent representative of Parliament in the Constitutional court, Korneliu Trofeile, the deputy head of department of customs law, international cooperation and the European integration of Customs Service, the representative of Parliament, Elena Mokanu, the deputy minister of justice, the permanent reserve representative of the Government in the Constitutional court, 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 interpretation of provisions of some legal acts N 245-XVI of October 20, 2005.

The address of the deputy of Parliament Vitalia Pavlichenko provided on July 6, 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 September 4, 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 Ministry of Economy and Trade, the Ministry of Finance, the Highest trial chamber.

Having considered case papers, having heard the message of judges-speakers and arguments of the parties, the Constitutional court established:

1. On October 20, 2005 the Parliament adopted the Law on interpretation of provisions of some legal acts N 245-XVI1 (further - the Law N 245-XVI).

According to the article I of the Law N 245-XVI of provision of part (4) article 15 of the Law on free enterprise zones N 440-XV of July 27, 2001 (The official monitor of the Republic of Moldova, 2001, N 108-109, Art. 834), with subsequent changes, are applied as follows:

1. Under action of part (4) Article 15 the residents of free zones registered before entry into force of this law which decided to perform the activities on the basis of provisions of the laws on the specific free zones concerning the tax and customs modes operating on the date of their registration and also their goods during stay in the territories of free zones fall.

2. Measures of economic policy and other restrictions are applied to goods of residents of free zones, including coming from these zones, only in case of their import to other part of the territory of the Republic of Moldova.

3. Customs authorities provide customs regime of free zone concerning goods of residents of free zones in case of their actual import to the territory of these zones and declaring according to the customs procedures operating at the time of crossing of borders of free zones.

4. Business entities because of limits of the territories of free zones including registered as residents of free zones, shall declare in customs authorities the goods which are earlier exported from the territory of these zones in case of their import to the territory of the Republic of Moldova.

The article II of the same law determines that according to provisions of article 5 of the Law on the free enterprise zone "Expo business Chisinau" N 625-XIII of November 3, 1995 (The official monitor of the Republic of Moldova, 1995, N 73, Art. 857), with subsequent changes, concerning residents of free zone of "Expo business Chisinau" which within three months from the date of entry into force of the Law on free enterprise zones N 440-XV of July 27, 2001 reported about the decision to perform activities as residents of free zone according to the tax and customs modes operating on the date of their registration remain the following the tax and customs modes:

1. Measures of economic policy and other restrictions on goods of residents of free zone are not applied during finding of these goods in the territory of free zone. These measures and other restrictions are applied to goods of residents of free zone, including coming from this zone, only in case of their import to other part of the territory of the Republic of Moldova.

2. Customs authorities provide customs regime of free zone concerning goods of residents of free zone in case of their actual import to the territory of this zone and declaring according to the customs procedures operating at the time of crossing of border of free zone.

3. Business entities because of limits of the territory of free zone including registered as residents of free zone, shall declare in customs authorities the goods which are earlier exported from the territory of this zone in case of their import to the territory of the Republic of Moldova.

2. Affirms as the address that the Parliament did not give interpretation of the stated provisions, and introduced the new legislative provisions which significantly changed legal regime of goods of residents of free zones that contradicts Art. 66 of the item c) of the Constitution as the interpretative act cannot make changes to the provisions which are subject to interpretation. The author of the address considers that the Law N 245-XVI worsens the provided earlier tax and customs modes of goods of residents of free zones as limits cases of provision of the preferential mode only during finding of these goods in the territories of free zones. In support of the opinion the author specifies that according to Art. 5 of the h. (2) item b) and item е) and Art. 6 of the h. (4) the item and) the Law N 625-XIII exempted from taxation by customs duty and excises the goods, works and services exported from free zone on customs area of the Republic of Moldova, coming from this zone; the goods, works and services which are temporarily exported from free zone without their realization and imported back including in other type.

Similar regulations contained also in Regulations on the free enterprise zone "Expo-Business-Chi [in=u", approved by the Order of the Government N 812 of August 9, 2000 goda2.

Later, as the author of the address specifies, these precepts of law were excluded, however, according to Article 5 provisions (earlier the article 7) of the Law N 625-XIII in case of adoption of the new legal acts worsening conditions of activities of residents of free zone regarding the customs and tax modes provided by this law, residents have the right within ten years from the date of their introduction in force to be guided by the legislation of the Republic of Moldova existing on the date of their registration in free zone.

On these bases the author appealed to the Constitutional court with request to exercise control of constitutionality of provisions of article I of Items 1, 2 and 3; articles II of Items 1 and 2 of the Law N 245-XVI.

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