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RESOLUTION OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF MOLDOVA

of April 28, 2009 No. 8

About control of constitutionality of the Order of the Government No. 1284 of October 2, 2002 "About approval of the Regulations on procedure for carrying out tender on receipt of the license for realization of scrap and waste of ferrous and non-ferrous metals, the fulfilled rechargeable batteries, including in the processed type, to the business entities who are in the territory of the Republic of Moldova and not having tax relations with its budget system and also for their export", with subsequent changes and amendments

Name of the Republic of Moldova

Constitutional court in structure:

To Dumitr PULBERE - the chairman

Alina YANUCHENKO is judge

Victor PUSKAS is judge

Petra RAJLJAN - the judge

Elena SAFALERU is judge-speaker

Valeria SHTERBETS is judge

with the assistance of Victoria Botnaryuk-Trelya, the secretary of meeting, Nicolae Eshana, the permanent representative of the Government in the Constitutional court, and representatives of the Government: Yuriye Muntyan, the deputy minister of economy and trade, Octavian Kalmyk, the director of Head department of trade policy of the Ministry of Economy and Trade, in the absence of the author of the address Valentina Kushnir, the deputy of Parliament of the XVI convocation, 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 the Order of the Government No. 1284 of October 2, 2002 "About approval of the Regulations on procedure for carrying out tender on receipt of the license for realization of scrap and waste of ferrous and non-ferrous metals, the fulfilled rechargeable batteries, including in the processed type, to the business entities who are in the territory of the Republic of Moldova and not having tax relations with its budget system and also for their export".

The address of the deputy of Parliament of the XVI convocation Valentina Kushnir provided on November 18, 2008 according to provisions of Art. 24 and Art. 25 of the Law on the Constitutional court, Art. 38 and Art. 39 of the Code of the constitutional jurisdiction formed the basis for consideration of the case.

The address was accepted determination of the Constitutional court of December 9, 2008 to consideration on the merits.

During preliminary consideration of the address the Constitutional court had the points of view of Parliament, the President of the Republic of Moldova, the Government, Ministry of Justice, Ministry of Economy and Trade, Ministry of Ecology and Natural Resources, Licensed chamber, National agency on protection of the competition, the Center for fight against economic crimes and corruption. Having considered case papers, having heard the message of the judge-speaker and arguments of participants of process, the Constitutional court established:

1. On October 2, 2002 the Government accepted the Resolution No. 1284 "About approval of the Regulations on procedure for carrying out tender on receipt of the license for realization of scrap and waste of ferrous and non-ferrous metals, the fulfilled rechargeable batteries, including in the processed type, to the business entities who are in the territory of the Republic of Moldova and not having tax relations with its budget system and also for their export" (1) (further - the Resolution No. 1284) changed on June 6, 2008 by the Order of the Government No. 669 "About approval of changes which are made to the Order of the Government No. 1284 of October 2, 2002" (2) and on April 10, 2009 by the Order of the Government No. 276 "About modification of the Order of the Government No. 1284 of October 2, 2002" (3).

2. In the address it is emphasized that the Government accepted the Resolution No. 1284 in pursuance of the Law No. 787-XIII of March 26, 1996 "About secondary material resources", declared invalid on December 14, 2007. As a result approved by the Resolution No. 1284 Provision became source of the legal regulations which are not based on the law that contradicts Art. 102 of the h. (2) Constitutions and Art. 4 of the item and) the Law No. 317-XV of July 18, 2003 "About regulations of the Government and other bodies of the central and local public authority" according to which the Government accepts resolutions for the organization of execution of the laws. The author of the address considers that, having established the Provision of regulation of primary nature, and it is exclusive competence of Parliament, the executive authority appropriated powers not inherent to it, having broken those Art. 6 of the Constitution.

According to the author of the address, regulation of the Regulations on procedure for carrying out tender on receipt of the license for realization of scrap and waste of ferrous and non-ferrous metals, the fulfilled rechargeable batteries, including in the processed type, contradict the principles, tasks and obligations which the Republic of Moldova undertook, having joined the General agreement on customs tariffs and trade, they limit the property right, freedom of trade and business activity, break the principle of fair competition, and establishment of economic, financial and legal barriers in the field of entrepreneurship implementation of important national interests in foreign economic activity considerably decreases. Thus, the author of the address considers, the Resolution No. 1284 and regulations of the Provision approved by it contradict Art. 8 of the h. (1), Art. 9 of the h. (3), Art. 46, Art. 54 of the h. (2), Art. 102, Art. 126 of the h. (2) item b), item c) and item g), Art. 127 of the h. (1) and h. (2) and Art. 129 of the h. (2) Constitutions.

_________________

(1) M.O., 2002, No. 135-136, Art. 1407

(2) M.O., 2008, No. 102, Art. 666

(3) M.O., 2009, No. 75-77,ст.326 4 M.O., 1996, No. 31, Art. 320

3. Having correlated the Resolution No. 1284 and the disputed Provision regulations to the constitutional regulations and the industry national legal system, the Constitutional court notes the following.

The resolution No. 1284 was accepted the Government in 2002 in pursuance of the Law No. 787-XIII of March 26, 1996 "About secondary material resources" (4) (further - the Law No. 787-XIII of March 26, 1996) and the Law No. 451-XV of July 30, 2001 "About licensing of separate types of activity" (5) (further - the Law No. 451-XV of July 30, 2001), with subsequent changes and amendments.

On December 14, 2007 the Law No. 280-XVI "About modification and amendments in some legal acts" (6) the Parliament declared invalid the Law No. 787-XIII of March 26, 1996.

With respect thereto on June 6, 2008 the Government accepted the Resolution No. 669 "About approval of changes which are made to the Order of the Government No. 1284 of October 2, 2002", having excluded from it the reference to the Law No. 787-XIII, also the staff of the Commission on the organization of tender was changed to receipt of the license for realization of scrap and waste of ferrous and non-ferrous metals, the fulfilled rechargeable batteries.

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