Regarding The Exception Of Unconstitutionality Of Article 19 Para. (4) Of Law No. 303 13 December 2013 On Service To The Public Water Supply And Sewerage (Public Network Transmission Facilities And Water Supply) (Referral Nr

Original Language Title: privind excepţia de neconstituţionalitate a articolului 19 alin.(4) din Legea nr. 303 din 13 decembrie 2013 privind serviciul public de alimentare cu apă și de canalizare (transmiterea instalațiilor și rețelelor publice de alimentare cu apă) (sesizarea nr

Subscribe to a Global-Regulation Premium Membership Today!

Key Benefits:

Subscribe Now for only USD$20 per month, or Get a Day Pass for only USD$4.99.
    On behalf of the Republic of Moldova, the Constitutional Court, acting as part of Mr. Alexandru Tanase, President, Mr. Aurel BĂIEŞU, Mr. Igor DOLEA, Mr. Victor PALMER, Mr. Zadrahimi, judges, with the participation of Mrs. Ludmila Chihai, Registrar, considering the appeal filed on 23 June 2016 and recorded at the same time, examining the appeal referred to in public plenary, taking into account the laws and proceedings, Acting in the Council Chamber following the judgment, a decision: 1. The origin of the case lies the plea of unconstitutionality of article 19 para. (4) of law No. 303 13 December 2013 on service to the public water supply and sewerage system, raised by Judge Van Brunt within Mound Court of appeal Cahul in file No. 05-2a-1487-25112015, pending the appellate court of Cahul.
2. The plea of unconstitutionality has been lodged with the Constitutional Court on 23 June 2016 by the Panel of judges within the Court of appeal of Cahul (Vitalie Dvurecenschii, Evgeny Mound, Nina Veleva) under article 135, paragraph 1. (1) (a). a) and g) of the Constitution, as interpreted by the decision of the Constitutional Court No. 2 of 9 February 2016, and of the regulation on the procedure for examining complaints lodged with the Constitutional Court.
3. The author claimed exception, in particular, that the contested provisions are contrary to articles 46 para. (1), (2), (3) and 54 of the Constitution.
4. By decision of the Constitutional Court of 8 July 2016-constitutionality exception has been declared admissible, without prejudeca Fund case.
5. In the process of examination of constitutionality exception the Constitutional Court requested the opinion of the Parliament, the President of the Republic of Moldova, the Government and the Ministry of environment.
6. In the plenary session of the Court of constitutionality exception was backed by Judge Van Brunt Mound, in the Court of appeal in Cahul. Parliament was represented by lead counsel, Valeriu Treaty within the Directorate-General of the Secretariat of the Parliament. No Government representative has attended a sitting of the Court.
The MAIN DISPUTE CIRCUMSTANCES 7. On September 6, 2013, the Mayor of the village, Gagauzia Chirsova, filed at a regional court in Comrat claim in court against public Association "Kuu-Baș", by which he requested an order directing it to convey a fountain in the City Hall.
8. On 14 July 2015, the Court accepted the request and ordered AO "Kuu-Baș" to convey the fountain at the Town Hall of the village Chirsova balance.
9. On 13 august 2015, AO "Baș Kuu" challenged with appeal judgment of Comrat and called cracking the judgment, citing that the Court of first instance exercised in fact the procedure of expropriation on behalf of State patrimony АО "Baş"-Kuu, without determining in what way the village town hall will perform refund Chirsova financial contribution made by the Association "Baş"-Kuu.
10. In the proceedings, the judge raised Mound Valle plea of unconstitutionality of article 19 para. (4) of law No. 303 13 December 2013 on service to the public water supply and sewerage systems.
11. by the conclusion of 12 April 2016, Cahul Court of appeals has ordered the suspension of the referral process and Constitutional Court for remittance settlement.
PERTINENT LEGISLATION. The relevant provisions of the Constitution (republished in the Official Gazette, no. 2016, 78, art. 140) are as follows: Article 46Dreptul to private property and its protection "(1) the right to private property, as well as loans and advances to the State are guaranteed.
(2) no one may be expropriated for reasons dictated by public necessity, as established by law and in advance.
[...]”


Article 54 the restriction of the exercise of certain rights or freedoms "(1) in the Republic of Moldova cannot be adopted laws suppressing or violating fundamental rights and freedoms of man and citizen.
(2) the exercise of rights and freedoms may not be subject to restrictions other than those prescribed by law and which correspond to the widely recognized norms of international law and are necessary in the interests of national security, territorial integrity, economic well-being of the country, public order, in order to prevent mass unrest and crime, protection of rights, freedoms and dignity of other persons, preventing the disclosure of confidential information or to ensure the authority and impartiality of the judiciary.
(3) the provisions of paragraph (2) do not allow the restriction of the rights stipulated in articles 20-24.
(4) the restriction must be proportional to the situation that caused it, and may not affect the existence of that right or freedom. "


Article 127Proprietatea "(1) the State shall protect the property.
(2) the State guarantees the realization of the right of ownership in the forms required by the owner, if they do not come in conflict with the interests of society.
(3) public property belongs to the State or administrative territorial units.
(4) the riches of any kind of subsoil, airspace, waters and forests used in the public interest, natural resources of economic zones and the continental shelf, the paths of communication, as well as other assets stipulated by the law, are the subject of public property. "
13. The relevant provisions of law No. 303 13 December 2013 on service to the public water supply and sewerage (Official Gazette, no. 2014, 60-65, art. 123) are as follows: Article 1Scopul of the law "the purpose of this law is to create the legal framework for the establishment, organization, management, regulation and monitoring of the functioning of the public service of water supply, sewage, and wastewater treatment plants and industrial (hereinafter public service of water supply and sewerage) in terms of accessibility , availability, reliability, continuity, competitiveness, transparency, respecting the norms of quality, security and environmental protection. "


Article 3Serviciul public water supply and sewerage systems "(1) a public water supply and sewerage system comprises the totality of activities of public interest and general economic and social interest incurred for the purpose of the collection, processing, transportation, storage and distribution of drinking water or the buyers of all technological territory of one or more other localities, as well as for the purpose of collection packaging, transport, treatment and disposal of wastewater.
(2) public water supply and sewerage system shall be established, organized and managed by the local public administration authorities to meet the needs of local communities.
(3) public water supply and sewerage system shall be provided through the creation and exploitation of a specific technical-urban infrastructure, called the system of public water supply and sewerage systems.
(4) In rural areas may organize, where appropriate, only the public water supply. "


Article 19Alimentarea with drinking water "(1) drinking water distributed through systems of public water supply system is designed to meet priority needs of the household population, public institutions, economic agents, and, in the absence of technological water, combating and extinguishing.
(2) drinking water distributed to consumers must meet, at their cores e.g. NYY, that pathogenetic germ conditions laid down in the technical regulations and the legal rules in force, as well as the parameters of flow and pressure listed in the technical conditions issued by the controller and the contracts for the supply of this service.
(3) in drawing up the technical conditions for design work, the operators will fit into the general urban plan of the local plan or landscaping. If the locality has no general urban plan updated or local plan updated landscaping, operator, before issuing technical conditions, will approve the decision by local authorities in the development plan of the networks.
(4) upon completion of building works, installations and networks of public water supply and sewerage system, located on public land, constructed of natural persons and/or legal entities, as well as those constructed before the entry into force of this law, regardless of the funding source, shall be sent free of charge to balance local government authority or directly to the operator in accordance with the decision of the local Council.
[...]”
14. The relevant provisions of law No. 272-XIV of 10 February 1999 relating to drinking water (Official Gazette, 1999, no. 39-41, article 167) are as follows: 5Sistemele drinking water supply "[...]
     (41) the installations and networks of public water supply and sewerage system, located on the ground of public legal persons and/or natural persons, regardless of funding source, shall be sent free of charge to local government balance or direct service operator in accordance with the decision of the local Council.
[…]”.

15. The relevant provisions of the Protocol. 1 to the European Convention for the protection of human rights and fundamental freedoms (done at Rome on 4 November 1950 and ratified by decision of Parliament of the Republic of Moldova No. 1298-XIII of 24 July 1997, M.O., 1997, no. 54-55, art. 502) are as follows: Article 1-protection of property "means any natural or legal person has the right to respect for his property. No one may be deprived of his property except for public interest and under the conditions provided for by law and general principles of international law.
The preceding provisions shall not affect the right of States to enforce such laws as it deems necessary for the regulation of the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties. "
LAW 16. The exception of unconstitutionality, the Court observes that it is aimed at essentially free transmission by individuals and/or legal entities at the local public administration authority balance or direct the operator of public networks and installations of water supply and sewerage system, constructed by the latter.
17. Thus, the appeal relates to a set of elements and principles with constitutional value, such as property rights and guarantees it.
A. ADMISSIBILITY 18. By its decision of 8 July 2016, the Court verified the meeting the following conditions for eligibility: (1) subject to the exception comes into the category of acts covered by article 135 paragraph 1. (1) (a). of the 19 of the Constitution). In accordance with paragraph 1 of article 135. (1) (a). the control of the Constitution), on notification constitutionality of laws, in particular of the law nr. 303 13 December 2013 concerning public service of water supply and sanitation is the responsibility of the Constitutional Court.
(2) Exception is raised by one of the parties or its representative, or indicates that it is lifted by the Court ex officio. Being raised by Judge Van Brunt in the Mound No. 05-2a-1487-25112015, on the role of the Court of appeal, on an appeal regarding constitutionality exception is made by the subject in charge with this right under article 135, paragraph 1. (1) (a). a) and g) of the Constitution, as interpreted by the decision of the Constitutional Court No. 2 of 9 February 2016, as well as the regulation on the procedure for the examination of complaints lodged with the Constitutional Court.
(3) the provisions of the contested to be applied to the settlement of the case. Note that the power of the Court to settle, with the exceptions of unconstitutionality that had been vested in it by article 135 paragraph 1. (1) (a). g) of the Constitution, requires correlation of laws and the Constitution, taking into account the principle of the supremacy of its provisions and to address the relevance of the contested dispute in the courts.
22. the Court observes that the object of the exception of unconstitutionality is article 19 para. (4) of law No. 303 13 December 2013 on service to the public water supply and sewerage systems.
23. the Court supports the author's arguments for constitutionality exception, according to which the contested provisions are to be applied to the settlement of the issue concerning the transmission of the fountain water balance of local public administration authority.
(4) there is a previous judgment of the Court has as its object the contested provisions 24. Keep in mind that the contested court have not been previously subject to constitutionality.
25. Therefore, the Court considers that the exception of non-constitutionality of art. 19 para. (4) of the law on the public service of water supply and sanitation cannot be rejected as inadmissible and there is no other reason to interruption of the process, in accordance with the provisions of article 60 of the code of constitutional jurisdiction.
26. Thus, in order to elucidate the issues dealt with in the Court of constitutionality exception will operate, in particular, with the provisions of article 46 paragraph 1. (1) and (2) combined with article 54 of the Constitution and the jurisprudence set forth in his rationales and that of the European Court.
B. the CASE of alleged infringement of the FUND article 46 paragraph 2. (1) and (2) combined with article 54 of the Constitution. The author argues that the non-constitutionality exception provisions being challenged violates article 46 of the Constitution, according to which: "(1) the right to private property, as well as loans and advances to the State are guaranteed.
(2) no one may be expropriated for reasons dictated by public necessity, as established by law and in advance.
[...].”
28. Similarly, the author considers that the exception rule subject to constitutionality violate article 54 of the Constitution, which States: "(1) in the Republic of Moldova cannot be adopted laws suppressing or violating fundamental rights and freedoms of man and citizen.
(2) the exercise of rights and freedoms may not be subject to restrictions other than those prescribed by law and which correspond to the widely recognized norms of international law and are necessary in the interests of national security, territorial integrity, economic well-being of the country, public order, in order to prevent mass unrest and crime, protection of rights, freedoms and dignity of other persons, preventing the disclosure of confidential information or to ensure the authority and impartiality of the judiciary.
(3) the provisions of paragraph (2) do not allow the restriction of the rights stipulated in articles 20-24.
(4) the restriction must be proportional to the situation that caused it, and may not affect the existence of that right or freedom. "
1. the author's Arguments exception neconsti-tuționalitate 29. The author considers that the exception of unconstitutionality article 19 para. (4) of the law on civil service of water supply and sewerage system, under which public networks and installations of water supply and sewerage, public land situated on, built by individuals and/or legal entities, shall be sent free of charge to the balance of local public administration authority or directly to the operator, violates the property rights of natural and legal persons, owners of public networks and installations of water supply and sanitation.
30. At the same time, the author argues that the exception to this rule the legislature instituted a legislative way to govern the expropriation without compensation and the manner of the owners of public networks and installations of water supply and sanitation.
31. The author claims that the exception provisions contrary to the provisions of the contested articles 46 and 54 of the Constitution.
2. Arguments of the 32 authorities. In his written opinion of the Moldovan President stated that the administration of the work of drilling artesian fountain placed on public property, for the purposes of the supply of drinking water to the population, cannot by definition entail recognition of the property right of legal person over the goods. Moreover, the legal person at the time of the initiation of the project of drilling and setting up the network of water supply system, assumes the only clearly defined roles: project coordinator and Manager of your financial resources, not the owner of the asset. The legal entity cannot claim a reward or compensation as a result of prior communication of the local public administration authority balance of plant and network of public water supply, this procedure being laid down by the legislator's express, neîntrunindu-se no expropriation conditions.
33. in the opinion of Parliament, noted that the norm of article 19 para. (4) of the law on civil service of water supply and sanitation is to be interpreted as meaning that the subject of law, which is obliged to convey the good (fountain) to the balance of the local public administration authority, will remain its owner, and later to capitalize on the ownership of the property conveyed in accordance with appropriate legislation. Considering that drinking water supplies constitute a general interest and affect the whole society, the legislature has opted for rules pursuant to article 114. 19 para. (4) of the Act, which are in full accordance with the art. 9, 46, 54 and 127 of the Constitution.

34. The Government and the Ministry of environment, in written opinions argued that assigning public systems of water supply and sanitation public service communal household as well as their capacity to satisfy the general interest justifies the membership of these systems in the public domain of the administrative territorial unit. The legal regime of public goods is expressly laid down in article 23. 10 para. (2) of law No. 121 of 4 May 2007 on management and privatisation of public property. Thus, any good embedded in an immovable is part of the asset in question and it is considered that belongs to the owner of this property. The owner of these goods (public systems of water supply and sanitation), built on the public domain of the administrative-territorial unit, being the sole subject of this property. Therefore, the provisions of the contested article does not violate. 46 of the Constitution.
3. Assessment of Court 35. The Court notes that article 9 of the Constitution recognises the existence of private property ownership and intellectual materials, and according to article 46 of the Constitution, the right to private property is guaranteed.
36. According to paragraph 1 of article 127. (1) and (2) of the Constitution, the State protects and guarantees the realization of property ownership in the forms required by the owner, if they do not come in conflict with the interests of society.
37. the Court note that private property right holder to consecrate themselves to possess, use and dispose of an asset in an exclusive, perpetual and absolute, within the limits established by law.
38. Furthermore, the provisions of article 46 paragraph 1. (2) of the Constitution provide that no one may be expropriated for reasons dictated by public necessity, as established by law and in advance.
39. the Court reveals that article 1 of Protocol No. take it to the Convention for the protection of human rights and fundamental freedoms (hereinafter "the Convention") recognises the right to respect for property. Thus, any natural or legal person has the right to respect for his property. No one may be deprived of his property except for reasons dictated by public necessity and subject to the conditions provided by law and general principles of international law.
40. the Court note that as ' good ', protected by article 46 of the Constitution and article 1 of Protocol No. the European Convention, it can be recognized any element of patrimonial assets of the person having economic value.
41. the court notice that, in accordance with paragraph 1 of article 127. (4) of the Constitution, any riches of the subsoil, including water, are the subject of public property.
42. In this context, the Court emphasized that water is attributed to the category of State natural heritage and has a major importance for society. Water protection aims at maintaining and improving the quality and productivity of their natural, in order to avoid negative effects on the environment, human health and material goods. Thus, the protection and sustainable development of water resources are actions of general interest.
43. How to ensure the drinking water needs of natural and legal persons is laid down in the law on civil service of water supply and sewerage systems.
44. the Court notes that, according to article 3 paragraph 2. (1) of the Act referred to supra, public water supply and sewerage system comprises the totality of activities of public interest and general economic and social interest incurred for the purpose of the collection, processing, transportation, storage and distribution of drinking water or the technological consumers in the territory of one or more other localities, as well as for the purpose of collection, transport, treatment and disposal of wastewater.
45. In accordance with the provisions of paragraphs 1 and 2 of article 19 have been disputed. (4) of the law on civil service of water supply and sanitation, at the completion of construction works, installations and networks of public water supply and sewerage system, located on public land, constructed of natural persons and/or legal entities, as well as those constructed before the entry into force of this law, regardless of the funding source, shall be sent free of charge to balance local government authority or directly to the operator in accordance with the decision of the local Council.
46. At the same time, examining the exception of constitutionality, the Court noted that a similar rule is contained in article 5 and paragraph 1. (41) in accordance with law No. 272-XIV of 10 February 1999 relating to drinking water. In these circumstances, although the exception invoked the unconstitutionality author article 5 para. (41) of the law on drinking water, the Court finds that this is in connection with the contested provisions.
47. In the present case, the Court note that according to the legal provisions referred to public networks, facilities and water supply and sewerage system shall be sent free of charge to the balance of local public administration authority or directly to the operator, including where they were built with their own investments of natural persons and/or legal entities.
48. Thus, the Court noted that while the person has obtained the necessary authorizations to carry out legal construction and has invested its own resources, these goods are taken free of charge.
49. the court notice that whereas water is attributed to the category of State patrimony, and the contested provisions refers to installations and networks of public water supply and sewerage, public land situated on, is the right way to regulate legislator voting on its use. At the same time, the Court emphasises that any regulation cannot affect the substance of the right to dispose of his property.
50. the Court finds that the disputed rule is in fact an expropriation without having established a right and prior claims of the owner or holder of other rights in rem over water supply networks.
51. The conclusion rests on the fact that the legislator established that at the completion of the construction of public facilities and networks for water supply and sanitation, although built with its own investments, shall be sent free of charge to local public administration authority balance or operator, which means the total deprivation of the right of disposition over such construction.
52. the court notice that expropriation is one of the most severe measures which may be taken in respect of the right of private property because it is not just a simple limitation of law, but also cause you to lose it.
53. In this regard, the legislature adopted the law on expropriation for public interest no. 413-XIV of 8 July 1999, through which regulated public utility and declaring them, the procedure for expropriation measures prior to the expropriation, expropriatului rights. According to this law, expropriation is to be preceded by a compensation to the holder of the asset.
54. Also with regard to the compensation granted to the holder of the property right for deprivation of his right, the European Court has noted that, in the absence of compensation, article repairers. 1 of Protocol No. 1 would not provide illusory protection than and ineffective the right to property, in total contradiction with the provisions of the Convention (the cause of James and others v. United Kingdom, judgment of 22 February 1986).
55 deprivation of property requires the obligation of the State to pay compensation to the owner, because without the payment of a reasonable sum, calculated on the value of the property, so far as they constitute a prejudice to the right to respect for his property. Unable to obtain a fair compensation in the context of deprivation of property constitute a breaking of the balance between the need for protection of property and the requirements of a general nature.
56. In this context, the Court shall act that any construction done from the financial resources of the natural or legal person may be sent to the local public administration authority balance or directly to the operator, only after a just and prior indemnity.
57. In conclusion, the Court retains that the provisions challenged, contained in article 19 para. (4) of the law on the public service of water supply and sanitation, as well as article 5 para. (41) in accordance with law No. 272-XIV of 10 February 1999 relating to drinking water, in what refers to the transmission of public facilities and networks for water supply and sanitation at local government or balance directly to the operator, in breach of article 46 paragraph 1. (1) and (2) combined with article 54 of the Constitution.
58. In these circumstances, for the purpose of exclusion of free transmission installations and public networks, water supply and sanitation at local government or balance directly to the operator, without a prior right claims, the Court will issue an address to Parliament with a view to regulating the conditions under which the person to be compensated as well as establishing the legal regime of good local public authority conveyed.

For these reasons, under articles 135 para. (1) (a). a) and g) and 140 of the Constitution, 26 of the law on the Constitutional Court, 6, 61, 62 lit. a) and e) and 68 of the code of constitutional jurisdiction, the Constitutional Court DECIDES: 1. It is acceptable in part except unconstitutionality raised by Judge Van Brunt in the Mound No. 05-2a-1487-25112015, pending the appellate court of Cahul.
2. It is hereby declared unconstitutional phrase "free balance ' in article 19 para. (4) of law No. 303 13 December 2013 on service to the public water supply and sewerage and article 5 paragraph 1. (41) in accordance with law No. 272-XIV of 10 February 1999 relating to drinking water.
3. This decision is final, cannot be subject to any appeal, shall enter into force on the date of its adoption and shall be published in the Official Gazette of the Republic of Moldova.

Related Laws