Inadmissibility Of The Appeal No. 47/2015 To Review The Constitutionality Of Government Decision No. 1026 Of 2 November 2010 On The Organization Of Tax Inspection

Original Language Title: de inadmisibilitate a Sesizării nr. 47a/2015 pentru controlul constituţionalităţii Hotărârii Guvernului nr. 1026 din 2 noiembrie 2010 privind organizarea activităţii de inspectare fiscală

Read the untranslated law here: http://lex.justice.md/index.php?action=view&view=doc&lang=1&id=362929

The Constitutional Court, sitting in composition:
Mr. Alexandru Tanase, President, Mr. Aurel
BĂIEŞU, Mr. Igor
DOLEA, Mr. Tudor
Panţiru,
Mr. Victor POPA, judges, with
participation of Mr. Eugene Osipov, Registrar,
Considering the complaint filed on 10 November 2015
recorded on the same date
preliminary Examining the complaint said,
Considering documents and materials,
deliberated on 15 December 2015 closed hearing
Delivers the following decision: tHE FACTS

1. On 10 November 2015 Mr Artur Reshetnikov MPs and Igor Weather addressed the Constitutional Court to review the constitutionality referral to Government Decision no. 1026 of 2 November 2010 on the organization of tax inspection.
A.
Two grounds for referral. The grounds for referral, as was exposed by its authors, may be summarized as follows.
March. Under Law no. 847-XIII of 24 May 1996 on budgetary system and budgetary process, the Government adopted the Decision no. 1026 of 2 November 2010 on the organization of tax inspection.
4. By adopting that judgment, the executive approved the Regulation on the organization and functioning of the Ministry of Finance Financial Inspection. Regulation establishes the legal status of the Financial Inspectorate, its place in the structure of central government, basic functions, tasks, rights and organization and functioning.
May. According to the authors of the referral by adopting Resolution no. 1026 of 2 November 2010, the Government has violated Articles 107 para. (1) and (2) and 130 par. (1) of the Constitution.
B. 6
relevant legislation. The relevant provisions of the Constitution (OJ 1994, No. 1) are:
Article 102Actele Government


"[...]
(2) The decisions are adopted to carry out the laws.
[...]. "

Article 107Administraţia specialized central public

"(1) Central specialized state are ministries. They put into under the law, government policy, decisions and orders, lead areas and are answerable to their work.
(2) In order to manage, coordinate and control the national economy and other areas outside the direct responsibility of ministries shall be established according to the law, and other administrative authorities. "
Article 130Sistemul credit-financial


"(1) Formation, administration, use and control of financial resources of the State, territorial-administrative units and public institutions shall be regulated by law. "
[...]"
July. The relevant provisions of public finances and budget and tax no. 181 of 25 July 2014 (OJ 2014, no. 223-230, art. 519) are:
Article 78Inspectarea financial


"(1) Financial inspection is carried out by Inspectorate under the Ministry of Finance in financial basis of the regulation approved by the Government.
(2) During the financial inspection of checked financial and economic activities, including investigations operative and documentary analysis conducted based on possible violations of law or fraud in the management and use of budget resources, the management of public reporting public debt discipline of state regulated prices and tariffs in calculating net profit of SOEs / municipal and companies with state participation share and dividends and budget breakdowns part of their net profit.
(3) financial inspection is initiated:
a) upon the Presidential Apparatus, Parliament, the Government, the Court of Auditors, law enforcement agencies;
B) based on the requests, complaints and information received, including from central and local public authorities, and based on risk analysis and cost-effectiveness;
C) of the Ministry of Finance, the Financial Inspection schedules through financial inspections according to the assessed risks related to the activities budget process and subjects mentioned in para. (2).
(4) may be subject to financial inspection:
a) authorities / institutions budget;
B) state enterprises / municipal companies in whose capital the State holds a share of not less than 25 percent and their affiliated persons;

C) other legal and natural persons managing / benefit financial resources and / or assets of the entities specified in items a) and b).
(5) authorities / public institutions to self-management and independent budget authority may be subject to financial inspection only at the request of law enforcement or Parliament. "THE LAW A. The authors

referral August. The authors of the referral argue that by virtue of Articles 107 para. (1) and (2) and 130 para. (1) of the Constitution, the Financial Inspection activity to be regulated only by law and not by government decision.
B.
Court's assessment in September. Examining the notification in terms of admissibility, the Court notes the following.
10. The Constitutional Court exercises jurisdiction constitutional referral subjects specified in Article 25 of the Law on Constitutional Court and Article 38 of the Constitutional Jurisdiction Code.
11. Under the law, MPs are subjects entitled to notify the Constitutional Court.
12. Similarly, Article 135 para. (1) a) of the Constitution, Article 4 para. (1) a) of the Law on Constitutional Court and Article 4 para. (1) a) the Constitutional Jurisdiction Code empowers the court of constitutional jurisdiction with power to review the constitutionality of government decisions.
13. The Court notes that the power conferred upon it by that Article 135 para. (1) a) of the Constitution requires the correlation between the contested rules and the Constitution, taking into account the principle of supremacy it.
14. The Court notes that, in this instance, notification is to review the constitutionality of Government Decision no. 1026 of 2 November 2010, which approved the Regulation on the organization and functioning of financial Inspectorate under the Ministry of Finance.
15. The Court notes that the authors complaint cited the alleged infringement of Articles 107 para. (1) and (2) and 130 par. (1) of the Constitution, citing regulatory obligation by law Inspection financial activity.
16. The Court notes that, under the terms of separation and collaboration of powers (Art. 6 of the Constitution), the Government, according to art. 102 par. (2) of the Constitution, makes decisions for the application of laws.
17. The Court held in its judgment of 18 March 1999 No. 14 on the interpretation of provisions of art. 94 para. (2) and art. 102 par. (3) of the Constitution that: "[...] The Government, in accordance with constitutional provisions make decisions. Decisions shall be issued to organize the execution of laws. So the Government acts, the rules contained in them may not have a primary character, they are complementary acts that develops and specifies the provisions of the law. Technical side of adoption executive decisions is governed by rules of law. [...] Government decisions that acts emanating from a public authority by their nature are administrative acts of authority. They are issued (adopted) the basis and the enforcement of law for the birth, modification or termination of legal relations ".
18. Under Article 11 of Law no. 317-XV of 18 July 2003 on the normative acts of the Government and other authorities of the central government and local government to exercise the constitutional powers and those arising from the Law on the Government to carry out the laws, adopt decisions and ordinances . The normative act issued on the basis of an upper level may not exceed the limits of powers established by the act, nor can it defeat the purpose, principles and provisions thereof.
19. Thus, in the context of the above, the Court observes that the Government Decision no. 1026 of 2 November 2010, which approved the Regulation on the organization and functioning of the Ministry of Finance Financial Inspection was adopted under Art. 13 of Law no. 847-XIII of 24 May 1996 on budgetary system and budgetary process that assigns financial control bodies of the Ministry of Finance position of financial and administrative control over revenues and expenditures.
20. At the same time, the Court notes that the July 25, 2014 Parliament adopted the Law on public finances and budget and tax no. 181, which repealed with effect from 1 January 2016, totally Law. 847 on budget system and budget process (art. 13 were repealed on 1 January 2015).

21. In the new law, the legislature was to provide express art. 78 that financial inspection is carried out by certain financial inspection, which is under the Ministry of Finance and acting under regulations approved by the Government. This article also provides an outline of specific activities Inspection and interacting with authorities.
22. Thus, under those listed above, the Court finds that the Government Decision no. 1026 of 2 November 2010 was adopted in order to enforce the law, not disputed by the authors of the referral.
23. In this context, the Court finds that the complaint does not meet the conditions of admissibility for the constitutionality and therefore can not be accepted for examination.
For these reasons, in accordance with Article 26 para. (1) of the Law on Constitutional Court, Articles 61 para. (3) and 64 of the Code of Constitutional Court Constitutional

DECIDED:

1. Declares inadmissible the complaint Artur Reshetnikov Members of Parliament and Igor Weather for reviewing the constitutionality of Government Decision no. 1026 of 2 November 2010 on the organization of tax inspection.
2. This decision is final, can not be subject to any appeal, shall enter into force upon adoption and shall be published in the Official Gazette of the Republic of Moldova.

CONSTITUTIONAL COURT PRESIDENT Alexandru Tanase