of May 19, 1998 No. 14
About control of constitutionality of some provisions of the Order of the Government No. 777 of August 13, 1997 "About enhancement of the mechanism regulation of foreign trade"
Name of the Republic of Moldova
Constitutional court in structure:
Pavel BARBALAT is chairman
Nicolae KISEEV is judge-speaker
George SUSARENKO - the judge
Ion VASILATI is judge-speaker,
with the assistance of Alena Balaban, the court secretary, Valentin Peremiyenko, the representative of the deputy of Parliament Victor Chekan, the author of the address, George Gaber, the director of the department of external svyaeyam of the Ministry of Economics and reforms, the representative of the Government, being guided by Art. 135 of h (1) the item and) Constitutions and Art. 4 of h (1) the item and) the Law on the Constitutional court, considered in open plenary meeting case on control of constitutionality of some provisions of the Order of the Government N 777 of August 13, 1997 "About enhancement of the mechanism of regulation of foreign trade".
Formed the basis for consideration of the case Victor Chekan's address, the deputy of Parliament provided according to Art. 24 and 25 of the Law on the Constitutional court, accepted to consideration on the merits and included in the agenda determination of the Constitutional court of November 6, 1997.
During preliminary consideration of case the decisions of the parliamentary Commission on economy, the industry and privatization, the Ministry of Economics and reforms, the Ministry of Finance and Department of customs control are requested and received.
Having considered case papers, having heard the message of the judge-speaker and arguments of agents of the parties, the Constitutional court established:
On August 13, 1997 the Government of the Republic of Moldova accepted the Resolution N 777 "About enhancement of the mechanism of regulation of foreign trade". According to item 1 of the p. 4 of this resolution, since October 1, 1997, import of alcoholic beverages and tobacco iedeliya is performed only by the distributors authorized by the producers of the corresponding products having authorized capital over 500 thousand leu and having the license for this type of activity. The resolution (item 1 of h 6) provides also that, since January 1, 1998, import and realization of manufactured goods of broad consumption without specifying on the label, packaging and in accompanying documents in state language of data which shall contain are prohibited: product name, its number, content, date of production, expiration date, etc.
Item 2 of the Order of the Government N 777 of August 13, 1997 provides also that for issue of export-import licenses, certificates of origin the payment in the size" by percent 0,1 from the cost of the exported or imported goods is levied and that the relevant ministries have the right to use 15 percent from proceeds for acquisition of the international forms, development of programs and realization of specific measures of promotion of export of goods.
In the address Victor Chekan notes that item 1 of h 4 resolutions contradicts Art. 126 of the Constitution as free trade and business activity, free competition are not provided.
Illegality of provisions of item 1 of the p. 6 of the resolution is reasoned in the address by the fact that the Government has no right to establish regulations of functioning of languages in the territory of the Republic of Moldova. According to the author of the address, the matters are regulated only by the organic laws. He claims also that provisions of item 2 of the order of the Government contradict Art. 130 and 132 of the Constitution as payments and any other income are established according to the law by representative, but not executive bodies. According to the law also control, use and control of financial resources of the state is exercised.
Having considered the address, the conclusions of the parliamentary Commission on economy, the industry and privatieation, the Ministry of Economics and reforms, the Ministry of Finance, and also having correlated provisions of the corresponding order of the Government to Constitution provisions, the Constitutional court notes the following:
Need of the state export control in general and import of alcoholic beverages and tobacco products in particular, protection of interests of local producers and consumer protection in the domestic market - are indisputable. Art. 129 of h (2) directly provides Constitutions that the Government provides protection of national interests in foreign economic activity, pursues policy of free exchange or protectionism, proceeding from national interests. At the same time the supreme law of the country determines in Art. 126 of h (2) the item b) that the state shall provide freedom of trade and business activity, protection of fair competition, creating favorable conditions for ispoljeovaniye of all production factors. Art. 5 of the Law N 849-XII of January 3, 1992 "About bases of foreign economic activity in the Republic of Moldova" provides that foreign economic activity is based on legal equality of all subjects of foreign economic activity irrespective of patterns of ownership. Expression of "all subjects" designates that the state shall provide equality of subjects of foreign economic activity not only irrespective of patterns of ownership, but also from financial position of economic actors.
It should be noted that according to the Law N 845-XII of January 3, 1992 "About entrepreneurship and the companies" the state shall create to all entrepreneurs equal legal and economic conditions of managing, guarantee observance of their rights and legitimate interests and promote development between them free competition (Art. 8 of the item 1).
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