Name of the Republic of Moldova
of October 11, 2016 No. 28
About exceptional case of illegality of Art. 19 of the h. (5) the Law No. 303 of December 13, 2013 on public service of water supply and the sewerage (prohibition of drilling of new artesian wells and operation of existing) (the address No. 53g/2016)
Constitutional court in structure:
To Alexander Tenase, chairman,
Auryl to Beesh,
Victor of Pop,
Vyacheslav Zaporozhan, judges,
with the assistance of the secretary of meeting Lyudmila Kikhay,
in view of the address provided and registered on May 3, 2016
having considered the specified address in open plenary meeting, considering acts and case papers,
having carried out discussion in the consultative room,
issues the following decree.
Points of order
1. The address about exceptional case of illegality of Art. 19 of the h formed the basis for consideration of the case. (5) the Law No. 303 of December 13, 2013 on public service of water supply and the sewerage, provided at the request of the lawyer Aleksandra Karapunarly, the representative of Proalfa-Service LLC, within case No. 3-463/16, considered by court of the sector Buyukan мун. Chisinau.
2. The address was brought into the Constitutional court on May 3, 2016 by the judge of court of the sector Buyukan мун. Chisinau Alyona Danilov, according to provisions of Art. 135 of the h. (1) the item and) and the item g) Constitutions, in the light of its interpretation by the Resolution of the Constitutional court No. 2 of February 9, 2016, and also Regulations on procedure for consideration of the addresses brought into the Constitutional court.
3. The author of the address, in effect, considers that the challenged provisions contradict Art. 9 of the h. (3), Art. 16 of the h. (2), Art. 46 of the h. (1) and Art. 126 of the h. (1) Constitutions.
4. Determination of the Constitutional court of June 14, 2016, without decision in essence, the address was acknowledged acceptable.
5. During consideration of the address the Constitutional court requested opinion of Parliament, the President of the Republic of Moldova, the Government and the Ministry of the environment.
6. In open plenary meeting the address was supported by the administrator of Proalfa-Service LLC Valeriu Moskalu. From Parliament and the Government there was the main consultant of legal management of the Secretariat of Parliament Valeriu Kuchuk and the deputy minister of the environment Victor Morgoch.
Circumstances of the main dispute
7. Proalfa-Service LLC addressed on November 11, 2015 to JSC Apa-Canal Chisinau behind the permission to operate of the artesian well belonging to it. JSC Apa-Canal Chisinau responded to the request with refusal.
8. As a result of Proalfa-Service LLC filed a lawsuit sectors Buyukan мун. Chisinau the claim against JSC Apa-Canal Chisinau.
9. In judicial session of April 27, 2016 the lawyer to Alexander Karapunarly protecting interests of Proalfa-Service LLC provided request about exceptional case of illegality of Art. 19 of the h. (5) the Law No. 303 of December 13, 2013 on public service of water supply and the sewerage.
10. Determination of the same number the degree of jurisdiction suspended consideration of the case and sent the appeal about exceptional case of illegality to the Constitutional court for permission.
11. Applicable provisions of the Constitution (repeated publication in M.O., 2016, No. 78, the Art. 140):
Article 9 Basic principles of property
"(1) the Property can be public and private. It consists of material and intellectual values.
(2) the Property cannot be used to the detriment of the rights, freedoms and advantage of the person.
(3) the Market, free economic initiative, fair competition are fundamental factors of economy".
Article 126 Economy
"(1) the Economy of the Republic of Moldova is market, socially oriented, based on private and public property and free competition.
Article 127 Property
(4) All richness of subsoil, airspace, waters and the woods used in public concerns natural resources of economic zone and the continental shelf, means of communication, and also other riches determined by the law are objects of exclusively public property".
12. Applicable provisions of the Law No. 303 of December 13, 2012 on public service of water supply and the sewerage (M.O., 2014, No. 60-65, Art. 123):
Article 1 Law Purpose
"The purpose of this law is establishment of the legal base for creation, the organizations, managements, regulation and monitoring of functioning of public service of supply with drinking water, technological water, the sewerage and purification of waste household and industrial waters (further – public service of water supply and the sewerage) in the conditions of availability, availability on hand, reliability, continuity, competition and transparency, with observance of regulations of quality, safety and environmental protection".
Article 3 Public service of water supply and sewerage
"(1) the Public service of water supply and the sewerage includes set of the types of activity representing public advantage and general economic and social interest, performed for the purpose of fence, processing, transportation, accumulating and distribution of drinking or technological water for all consumers of one or several settlements and respectively for the purpose of acceptance, transportation, cleaning and dumping of sewage.
(2) the Public service of water supply and the sewerage is created, will be organized and is controlled bodies of local public authority for the purpose of satisfaction of needs of local communities.
(3) the Public service of water supply and the sewerage is provided by creation and operation of the specific technical infrastructure called by public water supply system and sewerages.
(4) In rural settlements only the public service of water supply can be organized if necessary".
Article 13 The Delegated Management
"(1) the Delegated management is method of management, in case of which bodies of local public authority transfer based on the agreement (further – the agreement on delegation of management), to one or several operators all powers and obligations on provision of public service of water supply and the sewerage, and also on management and operation of the accompanying systems and technical infrastructure.
(2) Provision to the operator of the right of the delegated management is performed on the terms of transparency by means of the auction organized according to the current legislation.
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