Name of the Republic of Moldova

RESOLUTION OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF MOLDOVA

of November 3, 2016 No. 31

About exceptional case of illegality of Art. 73 of the h. (4) the Customs code of the Republic of Moldova No. 1149-XIV of July 20, 2000 (early termination of action of permission to temporary import of the goods which are the subject of the agreement of financial leasing) (the address No. 105g/2016)

Constitutional court in structure:

To Alexander Tenase, chairman,

Auryl to Beesh,

Igor Dolya,

Victor of Pop,

Vyacheslav Zaporozhan, judges,

with the assistance of the secretary of meeting Alena Balaban,

in view of the address provided and registered on September 13, 2016

having considered the specified address at 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. 73 of the h formed the basis for consideration of the case. (4) the Customs code No. 1149-XIV of July 20, 2000, provided according to the petition the lawyer Petra Balana, within the case No. 3-32/2015, considered by court of the area Keushen.

2. The address was brought into the Constitutional court on September 13, 2016 by the judge of court of the area Keushen Maria of Tsuguy 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. According to the author of the address, provision of Art. 73 of the p. (4) the Customs code, providing that owners of permissions which effective period did not expire, shall place the goods constituting the subject of the agreement of financial leasing under customs regime of import, contradict Art. 46 of the h. (1) and Art. 54 of the Constitution, and also Art. 1 of the Protocol No. 1 to the European convention on protection of the rights and fundamental freedoms of the person.

4. Determination of the Constitutional court of October 12, 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 and the Government.

6. At open plenary meeting the address the lawyer supported Petra Balan. From Parliament there was the main consultant of general legal management of the secretariat of Parliament Valeriu Kuchuk. The government was provided by the head of department of control of Customs Service Andrey Moreresku.

Circumstances of the main dispute

7. TO "Meganicontrans" of Ltd company the statement against Bender's customs with the requirement to cancel the administrative acts which are taken out by it filed a lawsuit on June 10, 2015.

8. In the statement it was noted that on October 10, 2012, based on the agreement of leasing, Bender's customs issued permission to temporary import of goods for up to October 21, 2015, having allowed to place TO "Meganicontrans" of Ltd company under temporary import regime the goods used by it.

9. Owing to the changes made by the Law No. 47 of March 27, 2014 to Art. 73 of the h. (4) the Customs code, the customs Bender informed TO "Meganicontrans" of Ltd company that the goods imported by it according to permission of October 10, 2012 need to be exported from the country or to place under customs regime of import, but no later than January 1, 2015.

10. Due to the non-compliance with provisions of Art. 73 of the h. (4) the Customs code Bender's customs passed on April 16, 2015 the decision on collection with TO "Meganicontrans" of Ltd company of customs duties in the amount 829 063,63 leu.

11. On judicial session of August 16, 2016 the lawyer Petra Balan provided request about exceptional case of illegality of Art. 73 of the h. (4) Customs code.

12. Determination from 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.

Applicable legislation

13. Applicable provisions of the Constitution (repeated publication in M.O., 2016, No. 78, the Art. 140):

Article 46 Right of Private Property and its protection

"(1) the Right of private property, and also the debt obligations undertaken by the state are guaranteed.

(2) Nobody can be deprived of the property differently as in case of the social necessity established by the law on condition of fair and preliminary compensation.

[…]".

14. Applicable provisions of the Customs code of the Republic of Moldova No. 1149-XIV of July 20, 2000 (переопубликован in M.O., special release of January 1, 2007):

Article 67 General provisions

"(1) the Temporary import regime allows use in the territory of the Republic of Moldova, with conditional partial or full relief from payment of import payments and without application of measures of economic policy, foreign goods and vehicles intended for re-export in steady-state condition without their natural wear.

(2) During all term of temporary import regime goods and vehicles shall remain in property of the foreign person. Goods and vehicles cannot be sold, rented, transferred to the sublease or to free use, are pledged, transferred or made available to other person in the territory of the Republic of Moldova differently as with the consent of customs authority after payment of import payments and accomplishment of customs procedures on release in free circulation, except for the departures provided by this Chapter.

(3) the Goods imported based on the agreement of operational leasing are located under customs regime of temporary import".

Article 68 Permission to temporary import of goods and vehicles

"The customs authority resolves temporary import only of those goods and vehicles which can be identified and which are not prohibited to import to the Republic of Moldova".

The article 69 Term of Finding of Goods and Vehicles under customs regime of temporary import

"(1) Customs authorities establish the term during which the imported goods and vehicles shall be reexported or other appointment permitted by customs shall be appropriated to them. This term cannot exceed three years from the date of goods placement and vehicles under temporary import regime.

(2) In exceptional cases the Customs Service according to the reasoned statement of the corresponding person can extend specified in part (1) term for use of goods and vehicles on the permitted appointment.

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