DETERMINATION OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF MOLDOVA

of May 28, 2002 No. 2

About control of constitutionality of number of provisions of the Law No. 461-XV of July 30, 2001 "About the market of oil products" * and number of provisions of the Order of the Government of the Republic of Moldova of N1027 of October 1, 2001 "About some measures for accomplishment of the Law on the market of oil products" **

Constitutional court in structure:

Victor PUSKAS is chairman

Mircha of the SOUTH - the judge

Konstantin LOZOVANU is judge

To Dumitr PULBERE - the judge-speaker

Elena SAFALERU is judge-speaker with the assistance of Lyudmila Tsymbalist, the secretary of meeting, the deputy of Parliament Mihai Plemedyale, the author of the address, Ion Mytsu, the permanent representative of Parliament in the Constitutional court, in the absence of the permanent representative of the Government invited in accordance with the established procedure in the Constitutional court, 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) the item and) and Art. 16 of the Code of the constitutional jurisdiction, considered in open session case on control of constitutionality of provisions of the Art. 10, of Art. 13 of the h. (1) and h. (3) item and), Art. 14 of the h. (2) the item and), Art. 15 and Art. 17 of the Law on the market of N461-XV oil products of July 30, 2001, and also provisions of the item of 3 paragraphs of the second, the item of 4 lit. A) and litas. b) The orders of the Government N1027 of October 1, 2001 "About some measures for accomplishment of the Law on the market of oil products".

The address of the deputy of Parliament Mihai Plemedyale provided according to Art. 24 and 25 of the Law on the Constitutional court, Art. 38 and 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 October 29, 2001 to consideration on the merits and is included in the agenda.

During preliminary consideration of the address the Constitutional court requested the conclusions of Parliament, the President of the Republic of Moldova, the Government, the Ministry of Justice, the Ministry of Internal Affairs, the Industry ministry, the Department of Energy, the Ministry of Finance, Academy of Sciences, Department of standardization and metrology, the Union of importers and implementors of oil products, Services of information and safety.

Having considered case papers, having heard the message of judges-speakers and arguments of the parties, the Constitutional court established:

For the purpose of forming of organizational, legal and economic basis of ensuring economic safety of the country and regulation of activities for import, transportation, storage and trade in oil products in the domestic market on July 30, 2001 the Parliament adopted the Law N461-XV "About the Market of Oil Products" (further - the Law N461-XV).

In pursuance of the Law N461-XV and for the purpose of ensuring energy security of the country and stable supply of consumers with oil products on October 1, 2001 the Government accepted the Resolution N1027 "About Some Measures for Accomplishment of the Law on the Market of Oil Products".

In the address constitutionality of following provisions is disputed:

Law N461-XV:

- the Art. 10, regulating questions relating to financial provision of the National agency on regulation in power;

- Art. 13 of the h. (1) and h. (3) the item and), the activities establishing special conditions for business entities - importers of oil products;

- Art. 14 of the h. (2) the item and), the license providing one of the bases for cancellation;

- the Art. 15, the regulating feature of licensing of importers;

- the Art. 17, providing creation of safety stock of oil products;

Orders of the Government N1027:

- the item of 3 paragraphs of the second determining that the single means of transportation of the imported oil products is rail transport;

- item of 4 lit. A) and litas. b), determining that only economic agents having available own oil tankages in the country capacity at least 25 thousand m3 and the equity equivalent to at least 2 million US dollars can apply for the import license of oil products.

The author of the address considers that the given situations are affected by the principles of equal rights of business entities, freedom of trade and entrepreneurships, protection of fair competition and private property, and, thus, contradict Art. 9 of the h. (3), Art. 54, Art. 58, Art. 126 of the h. (2) item b) and g), Art. 127, to Art. 132 of the Constitution and laws on privatization, on bases of the taxation system, on entrepreneurship and companies, on restriction of monopolistic activities and development of the competition.

During preliminary consideration of the address the Constitutional court determined that the Parliament the Law N930-XV of March 22, 2002 *** made changes and additions to the Law N461-XV. In the station 10, Art. 13 of the h. (1) and (3) item and), Art. 14 of the h. (2) the item and), disputed in the address, made changes, and Art. 15 and 17 - are excluded.

At the same time, the resolutions N1322 of November 29, 2001 **** and N435 of April 10, 2002 ***** the Government made changes and additions to the Resolution N1027 of October 1, 2001 "About some measures for accomplishment of the Law on the market of oil products". These resolutions of the item of 3 paragraphs of the second of the Resolution N1027 it was added with words "river" and "automobile", having established, therefore, that petroleum carriers are not only rail transport, but also river and automobile, and in the item of 4 lit. A) and litas. b) changes which led to reducing the minimum capacity of reservoirs from 25 thousand m3 to 5 thousand m 3, equity - from 2 million US dollars to 750000 thousand, compulsory provisions for receipt of the import license of oil products were made.

The constitutional court states that modification and amendments in the Law N461-XV and in the Order of the Government N1027 resolved exceptional case of illegality.

According to Art. 60 of the item d) the Code of the constitutional jurisdiction in case of elimination of illegality of the disputed regulation the Constitutional court stops proceeedings.

In meeting of the Constitutional court the author addressed with the oral petition for control of constitutionality of the Law N461-XV of July 30, 2001 and the Order of the Government N1027 of October 1, 2001, with changes and amendments, having adduced the same arguments about illegality, as in the address.

The constitutional court notes that according to Art. 31 of the h. (3) the Code of the constitutional jurisdiction the applicant has the right to change the basis or subject of the address.

According to sense of this regulation and considering practice of the constitutional jurisdiction, change of the basis or subject of the address can belong only to the regulations adopted and which became effective until submission of the address to the Constitutional court.

As it was noted earlier, in the Law N461-XV and the Order of the Government N 1027, disputed in the address, essential changes were made, some Articles are reworded as follows. Therefore, the applicant has the right to submit the new application with observance of provisions of Art. 38 and 39 of the Code of the constitutional jurisdiction.

Proceeding from stated, according to Art. 60 of the item d), Art. 61 of the h. (3) and Art. 64 of the Code of the constitutional jurisdiction the Constitutional court DETERMINED:

1. Stop proceeedings about control of constitutionality of number of provisions of the Law N461-XV of July 30, 2001. "About the market of oil products" and number of provisions of the Order of the Government N1027 of October 1, 2001 "About some measures for accomplishment of the Law on the market of oil products".

2. This determination is final, is not subject to appeal, becomes effective from the date of acceptance and is published in "Monitorul Oficial al Republicii Moldova".

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* M.O., 2001, N 107, Art. 821

** M.O., 2001, N 120, Art. 1074

*** M.O., 2002, N 56, Art. 397

**** M.O., 2001, N147-149, of Art. 1367

***** M.O., 2002, N50-52, of Art. 519

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