DECISION OF THE CONSTITUTIONAL COURT OF UKRAINE

of May 28, 2003 No. 10-rp/2003

On case on the constitutional representation of the Antimonopoly Committee of Ukraine on official interpretation of the concept "the organization of distribution of stamps, the marked envelopes and cards" which is applied in the paragraph the second part three of article 15 of the Law of Ukraine "About mail service" (case on the organization of distribution of stamps, the marked envelopes and cards)

Case No. 1-16/2003

NAME OF UKRAINE

Constitutional court of Ukraine as a part of judges of the Constitutional Court of Ukraine:

Selivon Nikolay Fedosovich - the chairman,

Voznyuk Vladimir Denisovich,

Ivashchenko Vladimir Ivanovich,

Kostitsky Mikhail Vasilyevich - the judge-speaker,

Malinnikova Lyudmila Fiodorovna,

Mironenko Alexander Nikolaevich,

Wheaten Valery Grigoryevich,

Rozenko Vitaly Ivanovich,

Savenko Nikolay Dmitriyevich,

Victor Egorovich's buffoons,

Silent Vladimir Pavlovich,

Tkachuk Pavel Nikolaevich,

Chubar Lyudmila Panteleevna,

Shapoval Vladimir Nikolaevich,

with the assistance of the representative of the person of law on the constitutional representation Kravchenko Yury Grigoryevich - the state authorized Antimonopoly Committee of Ukraine, the representative of the Verkhovna Rada of Ukraine Konstanty Alexander Vladimirovich - the chief scientific consultant of Department of bonds with judicial bodies of the Office of the Verkhovna Rada of Ukraine, Nosov Vladislav Vasilyevich - the Permanent representative of the President of Ukraine in the Constitutional Court of Ukraine, the representative of the Cabinet of Ministers of Ukraine of Pavlikovsky Lada Anatolyevna - the Deputy State secretary of the Ministry of Justice of Ukraine, and also recruited in consideration of the case: Kostriby Nadezhda Petrovna - the head of department of legal support and reforming of property of the State committee of communication and informatization of Ukraine, Mukhin Vasily Georgiyevich - the CEO of the Ukrainian state company of mail service of Ukrpocht, the Mail carrier Pyotr Safronovich - the head of legal department of Agency of Soyuzpechat open joint stock company (Kiev), Trinchuk Stepan Nikolaevich - the chairman of the supervisory board, the vice chairman of the board on legal and personnel problems of Torgpressa open joint stock company (Lviv), Kopylenko Yakov Mikhaylovich and Malov Vitaly Yuryevich - deputy directors of Europe Print private enterprise (Dnipropetrovsk), Aronov Leonid Ilyich - the commercial director of Torgpressa limited liability company (Ternopil), Korzun Vladimir Anatolyevich - the legal adviser of Ukrpressa limited liability company (Kiev),

considered at plenary meeting case on official interpretation of the concept "the organization of distribution of stamps, the marked envelopes and cards" which is applied in the paragraph the second part three of article 15 of the Law of Ukraine "About mail service" of October 4, 2001 by N2759-III (In? домост? Verkhovno ї For the sake of Ukra§ni, 2002, N 6, the Art. 39).

The constitutional representation of the Antimonopoly Committee of Ukraine became reason for consideration of the case according to articles 39, of 41 Law of Ukraine "About the Constitutional Court of Ukraine".

The basis for consideration of the case according to article 93 of the Law of Ukraine "About the Constitutional Court of Ukraine" is the prakticheska need for official interpretation of the concept "the organization distribution of stamps, the marked envelopes and cards" which is applied in the paragraph the second part three of article 15 of the Law of Ukraine "About mail service".

Having heard Kostitsky M. V. judge-speaker, Kravchenko Yu. G. explanations., Konstanty O. V., Nosov V. V., Pavlikovskaya L. A., N.P., Mukhin V. G., Poshtarya P. S., Trinchuk S. M., Malov V. Yu., Aronov L. Kostriby?., Korzuna V. A. and having researched case papers, the Constitutional Court of Ukraine established:

1. In the constitutional representation in the Constitutional Court of Ukraine the Antimonopoly Committee of Ukraine brings up question of official interpretation of the concept "the organization of distribution of stamps, the marked envelopes and cards" which is applied in the paragraph the second (on representation - in the first) parts three of article 15 of the Law of Ukraine "About mail service", and also asks to give the answer to question whether exclusive rights of the national operator extend to the organization of distribution of envelopes net and art (without brands).

The person of law on the constitutional representation proves practical need for official explanation by the fact that the Ukrainian state company of mail service of Ukrpocht (further - Ukrpochta), on the one hand, both the Antimonopoly Committee of Ukraine and subjects of housekeeping - with the second, differently understand content of the specified concept. As considers the Antimonopoly Committee of Ukraine, it leads to violation of the right of subjects of housekeeping which are not part of Ukrpochti, on business activity and to restriction of the right of consumers for acquisition of stamps, the marked envelopes and cards.

The Antimonopoly Committee of Ukraine notes that from subjects of housekeeping (the former companies "Soyuzpechati") claims arrived on the fact that Ukrpochta prohibited them sale of stamps, the marked envelopes, cards, envelopes net and art (without brands) which they performed according to subitem 6.4. Regulations on stamps, blocks, the marked envelopes and cards, the Ministry of Communications of Ukraine approved by the order of December 16, 1996 N 262. As it is specified in the constitutional representation, the prohibition of Ukrpocht proves by the fact that in the paragraph the second part three of article 15 of the Law of Ukraine "About mail service" the exclusive right on the edition, issuance and the organization of distribution of stamps, the marked envelopes and cards, and also their removal from the address is established for the national operator. Based on this provision "Ukrpochta" claims that as accomplishment of functions of the national operator the corresponding order of the Cabinet of Ministers of Ukraine is assigned to Ukrpochta, it possesses exclusive sale right of the specified products.

2. The chairman of the Verkhovna Rada of Ukraine in the letter in the Constitutional Court of Ukraine emphasizes that in the context of paragraph two of part three of article 15 of the Law of Ukraine "About mail service" process of the organization of distribution of stamps, the marked envelopes and cards includes not only any actions of the national operator which are connected with creation of conditions and direct distribution of the specified products, but also its realization by other legal entities and physical persons by the conclusion with them civil agreements.

In the explanation of the Chief of Presidential Administration of Ukraine provided at the request of the President of Ukraine it is that the Law of Ukraine "About mail service" and the Law of Ukraine "About communication" which are basic concerning regulation of the relations in the field of communication provision of services (in particular post) do not contain direct prohibition concerning distribution of stamps, the marked envelopes and cards by any subjects of housekeeping and do not determine exclusive right of the national operator (operators) of mail service on these activities. The law of Ukraine "About mail service" grants to the national operator exclusive right only on the organization of such distribution.

The Prime Minister of Ukraine on request of the Constitutional Court of Ukraine reports that exclusive right of the national operator on the edition, issuance and the organization of distribution of stamps, the marked envelopes and cards, and also their removal from the address established by the paragraph the second parts three of article 15 of the Law of Ukraine "About mail service" "it is impossible to consider as restriction of the rights of other subjects of housekeeping for business activity as, delegating such powers to the national operator, the state meant to provide task performance of the social state, creation of worthy conditions for human life, ensuring protection of its social and economic rights, and quality and cost of communication services can significantly influence living standards, the rights and freedoms of citizens".

The state committee of communication and informatization of Ukraine explains that process of the organization of distribution of stamps, the marked envelopes and cards directly includes their sale through retail chain stores, and also other actions and actions, directly stipulated by the legislation and are not prohibited to them. In particular, it can be involvement of other subjects of business activity to distribution of the specified products by the conclusion with them the relevant civil agreements that 10 Laws of Ukraine "About publishing" are stipulated in Article and answers provisions of the Civil code of the Ukrainian SSR, the laws of Ukraine "About the companies in Ukraine" and "About entrepreneurship". The exclusive right of the national operator on the organization of distribution of stamps, the marked envelopes and cards does not limit possibility of consumers concerning acquisition of the specified products as Ukrpochta as the national operator has branched structure of departments in all regions of Ukraine. In case of the insufficient number of the separated production divisions which are engaged in realization of these products Ukrpochta can independently sign civil agreements with legal entities. Having granted such right to the national operator, the state meant by establishment of the state rates for universal communication services to provide social protection of the population.

In reply to the request of the Constitutional Court of Ukraine of Ukrpocht emphasizes that under exclusive right on the organization of distribution of stamps, the marked envelopes and cards it is necessary to understand the independent organization by the national operator of the market of stamps, the marked envelopes and cards which covers their realization not only through network of objects of mail service, but also by the conclusion of civil agreements with other legal entities and physical persons.

At the same time Ukrpochta specifies that according to article 1 of the Law of Ukraine "About mail service" the stamp is means of fee of mail service which are provided by the national operator, but not property which is subject of civil purchase and sale agreements. Acquisition of stamps does not provide to users post services of the property right to certain property but only opportunity to use services of the national operator. Rules of provision of services of mail service (are approved by the Resolution of the Cabinet of Ministers of Ukraine of August 17, 2002 N1155 is provided that universal services of mail service are paid for the rates established by authorized central executive body in the field of communication. And it does economically inexpedient realization of brands and the marked products from-on intermediaries as the last have no right to establish on them trade margin.

3. In proceedings on the reference at open plenary meeting of the Constitutional Court of Ukraine agents of the parties, other participants of the constitutional production supported line items of public authorities which they represented.

Representatives of subjects of housekeeping whose claims became the basis for the constitutional representation of the Antimonopoly Committee of Ukraine, emphasized that the legislator quite consciously granted exclusive right to the national operator not for sale of stamps, the marked envelopes and cards, and on the organization of their distribution, i.e. creation of retail network by it in scales of the state for the most complete requirements satisfaction of consumers in such products. The diffusion right of stamps, the marked envelopes and cards concerns not only Ukrpochti, but also other subjects of housekeeping which are capable to provide their realization on the conditions defined by agreements with Ukrpochta. They also declared that sale of such products only by departments of Ukrpochta creates inconveniences for the population, narrows possibilities of its acquisition.

4. Constitutional court of Ukraine, considering this case, proceeds from the following.

The Item 5 parts one of article 92 of the Constitution of Ukraine determines that bases of the organization and operation of communication systems are determined only by the laws of Ukraine. Such laws are the Law of Ukraine "About communication", the Law of Ukraine "About mail service" which determine legal, social and economic and organizational basis of activities in the field of communication and in the field of provision of services of mail service.

The law of Ukraine "About mail service" assigns obligation of ensuring provision of universal services of mail service in all territory of Ukraine to the national operator who in connection therewith the Law has exclusive rights on implementation of certain types of activity in this sphere.

N10 accomplishment of functions of the national operator of mail service is assigned by the order of the Cabinet of Ministers of Ukraine of January 10, 2002 to the Ukrainian state company of mail service of Ukrpocht. Therefore Ukrpochta according to the paragraph the second parts three of article 15 of the Law of Ukraine "About mail service" found exclusive right on "the edition, issuance and the organization of distribution of stamps, the marked envelopes and cards, and also their removal from the address".

The law of Ukraine "About mail service" does not open content of the concept "the organization of distribution of stamps, the marked envelopes and cards" which official interpretation the person of law on the constitutional representation asks to provide. He does not find out and contents of the concept "distribution of stamps, the marked envelopes and cards".

At the same time the legislator, having opened in article 1 of this Law content of concepts "services of mail service" and "universal services of mail service", did not carry to them either the organization of distribution, or distribution of stamps, the marked envelopes and cards. But if to recognize what according to part one of article 21 of the Law of Ukraine "About mail service" "stamps (including printed on post envelopes and postcards) is means of fee of mail service on transfer of written correspondence which are provided by the national operator", then distribution of stamps, the marked envelopes and cards is the integral condition of provision to consumers of such services.

The basic principles of activities in the field of provision of services of mail service based on article 3 of the Law of Ukraine "About mail service" are, in particular, protection of interests of users, ensuring provision of services of mail service of the established quality level, availability to the market of services of mail service.

The consumer according to part two of article 19 of the Law of Ukraine "About consumer protection" has the right to the free choice of goods and services in time, convenient for it, taking into account operating mode of the seller (contractor), and the state according to article 4 of this Law provides to citizens as consumers protection of their rights, gives opportunity of the free choice of goods (works, services).

The constitutional court of Ukraine considers that the legislator along with establishment of exclusive right of the national operator on the edition, issuance, and also conclusion from the address of stamps, the marked envelopes and cards provided its exclusive right on the organization of their distribution, but not on distribution just because distribution by exclusively national operator of mail service of stamps, the marked envelopes and cards limits possibilities of their acquisition by physical persons and legal entities as significantly reduces the number of sellers of these products and by that complicates access to services of mail service.

The organization of distribution of stamps, the marked envelopes and cards, according to the Constitutional Court of Ukraine, includes the actions of the national operator of mail service connected with creation of conditions for distribution of the specified products and its realization to consumers. Having under the law exclusive right to the organization of distribution of stamps, the marked envelopes and cards, the national operator of mail service has the right also to their distribution as it is connected with realization of own services of mail service by it.

At the same time, as distribution of stamps, the marked envelopes and cards directly does not belong to services of mail service which according to part one of article 13 of the Law of Ukraine "About mail service" are provided by operators according to the legislation of Ukraine, other legal entities and physical persons which have for this purpose certain conditions and which signed agreements with the national operator of mail service can perform it.

Distribution of stamps, the marked envelopes and cards not only the national operator of mail service through network of the divisions, but also legal (first of all the former companies "Soyuzpechat") and physical persons considerably expands with others possibilities of acquisition by consumers of the marked post products and receipt of services of mail service.

The constitutional court of Ukraine also specifies that it "About mail service" follows from systems analysis of the Law of Ukraine - the organization of distribution of envelopes net and art (without brands) does not belong to exclusive right of the national operator of mail service.

Proceeding from given and being guided by Articles 147, 150 Constitutions of Ukraine, Articles 51, of 93, 95 Laws of Ukraine "About the Constitutional Court of Ukraine", the Constitutional Court of Ukraine solved:

1. The concept "the organization of distribution of stamps, the marked envelopes and cards" which is applied in the paragraph the second part three of article 15 of the Law of Ukraine "About mail service" of aspect of the constitutional representation needs to be understood as set of the actions performed by the national operator of mail service concerning providing users of services of mail service and other consumers with the stamps marked by envelopes and cards which provide, in particular, determination of procedure for distribution of these products and also its realization both the national operator of mail service it is direct, and other legal entities and physical persons on contractual basis according to the legislation of Ukraine.

2. The solution of the Constitutional Court of Ukraine is mandatory in the territory of Ukraine, final and cannot be appealed.

The solution of the Constitutional Court of Ukraine is subject to publication in "In? to snik Konstituts? yny to Ukra§ni's Court" and in other official publications of Ukraine.

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