Name of the Republic of Moldova

RESOLUTION OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF MOLDOVA

of March 16, 2017 No. 10

About exceptional case of illegality of Art. 80 of the h. (2) the Law on public finance and budget and tax responsibility No. 181 of July 25, 2014 (legal responsibility for non-execution of the agreement signed with budgetary institution) (the address No. 116g/2016)

Constitutional court in structure:

To Alexander Tenase, chairman,

Auryl to Beesh,

Igor Dolya,

Tudor Pantsyru,

Victor of Pop,

Vyacheslav Zaporozhan, judges,

with the assistance of the secretary of meeting Anna Floryan,

in view of the address provided and registered on October 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. 80 of the h formed the basis for consideration of the case. (2) the Law on public finance and budget and tax responsibility No. 181 of July 25, 2014, provided at the request of the lawyer Vitaly Nagachevski, within the case No. 3-883/16, considered by court of Chisinau, the sector Ryshkan.

2. The address was brought into the Constitutional court on October 3, 2016 by the judge in court of Chisinau, the sector Ryshkan, Oleg Melnichuk based on 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, Art. 80 of the p. (2) the Law on public finance and budget and tax responsibility the Art. 4, contradicts Art. 21 and Art. 23 of the Constitution.

4. Determination of the Constitutional court of November 18, 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. In open plenary meeting the address was supported by the lawyer Vitaliye Nagachevski. From Parliament there was Valeriu Kuchuk, the chief of service of representation at the Constitutional court and law enforcement agencies of general legal management of the Secretariat of Parliament. From the Government Andrey Balan, the chief of legal management of the Ministry of Finance took part.

Circumstances of the main dispute

7. By results of public auction No. 14/01928 of November 24, 2014 Intermed LLC and the Republican medical diagnostic center signed on November 26, 2014 the purchase agreement of the integrated digital diagnostic complex.

8. The financial inspectorate on December 1, 2015 and on January 25, 2016 carried out thematic inspection to Intermed LLC, having checked the financial and economic relations following from the contract with the Republican medical diagnostic center. As a result of check the Financial inspectorate drew up two statements according to Art. 80 of the h. (2) the Law on public finance and budget and tax responsibility No. 181 of July 25, 2014 in connection with non-compliance with Intermed LLC of term of a contract.

9. In the stated objection of Intermed LLC demanded to cancel control acts. The financial inspectorate noted that the given arguments cannot form the basis for cancellation of control acts.

10. The financial inspectorate passed on February 17, 2016 the decision on imposing of the sanction on Intermed LLC according to Art. 80 of the h. (2) the Law on public finance and budget and tax responsibility and about collection in the government budget of the amount of 5 701 500 lei.

11. Intermed LLC submitted to Financial inspection on February 23, 2016 the provisional statement with the requirement to withdraw control acts and the decision on application of the sanction. Financial inspection rejected the provisional statement as unreasonable.

12. Intermed LLC appealed on March 21, 2016 administratively the solution of Financial inspection on imposing of the sanction.

13. During legal proceedings the lawyer Vitaliye Nagachevski provided request about exceptional case of illegality of provisions of Art. 80 of the h. (2) the Law on public finance and budget and tax responsibility No. 181 of July 25, 2014.

14. Determination of September 26, 2016 the court of Chisinau, the sector Ryshkan, satisfied request and sent the appeal to the Constitutional court for permission.

Applicable legislation

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

Article 23. Right of each person to knowledge of the rights and obligations

"(1) Each person has the right to recognition of its legal personality.

(2) the State provides the right of each person to knowledge of the rights and obligations. For this purpose the state publishes all laws and other regulations and provides their availability".

Article 130. Financial credit system

"(1) Forming, management, use and control of financial resources of the state, administrative and territorial units and public organizations are regulated by the law.

[…]".

16. Applicable provisions of the Civil code of the Republic of Moldova No. 1107-XV of June 6, 2002 (M.O., 2002, No. 82-86, Art. 661):

Article 2. The relations regulated by the civil legislation

"(1) the Civil legislation determines legal status of participants of civil circulation, the basis of origin and procedure of the property right, regulates contractual and other commitments, and also other property and related personal non-property relations.

[…]".

Article 5. Analogy of the law and analogy is right

"(1) In cases when the stipulated in Article 2 relations are not settled by the law or the agreement of the parties and there is no custom, applicable to them, to such relations if it does not contradict their being, the regulation of the civil legislation governing the similar relations (analogy of the law) is applied.

[…]".

Article 602. Responsibility for non-execution of the obligation

"(1) If the debtor did not fulfill the obligation, he shall pay to the creditor the damages caused by this non-execution if does not prove that the obligation is not fulfilled not through his fault.

[…]".

Article 603. Wine of the debtor

"(1) the Debtor bears responsibility only for deception (intention) or offense (imprudence or negligence) if the law or the agreement do not provide other or if other does not follow from content or being of the relations.

[…]".

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