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.
Reason for consideration of the case according to Articles 39, 40 Laws of Ukraine "About the Constitutional Court of Ukraine" are the constitutional representation of 49 People's Deputies of Ukraine.
The basis for consideration of the case according to article 71 of the Law of Ukraine "About the Constitutional Court of Ukraine" is availability of dispute on constitutionality of the specified Code provision.
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 field 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 field 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 field 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 prohibited by the law".
Implementation of the constitutional instruction "which is not prohibited 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.
Determining seaport the state company, the Code at the same time (parts three, the fourth Article 73) does not exclude possibility of economic activity in its territory of the companies and organizations of any patterns of ownership for the purpose of servicing of courts, passengers and loads according to the procedure, established by the Cabinet of Ministers of Ukraine, and prohibits to port to interfere with such activities and to interfere with it, except as specified, stipulated by the legislation Ukraine, constituent documents of these companies and organizations. These provisions mean that the constitutional right of everyone on business activity in the territory of the state transport enterprise which the seaport is by the state is not forbidden.
Therefore, determination of seaport by the state company does not contradict part one of article 42 of the Constitution of Ukraine.
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