inadmissibility of referral No. 106g/2016 regarding exception of unconstitutionality of certain provisions of article 8. 1 of law No. 105-XV of 13 March 2003 on the protection of consumers



Published: 10.02.2017 in Official Gazette No. 40-49 art no: 12 date of entry into force: 12.10.2016 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. Abdul Fahim, Registrar, taking into account the appeal lodged on 15 September 2016, recorded at the same time, examining the admissibility of the referral, taking into account the acts and proceedings of the dossier , Acting on 12 October 2016 in Council Pronounce the following decision: in fact 1. The origin of the case lies the exception of non-constitutionality of sintagmelor "authorized for entrepreneur activity" and "commercial purposes", as referred to in article 1 of law No. 105-XV of 13 March 2003 on the protection of consumers, high fomukong, part in file No. 3-2350/14 on the role of Center Court, mun. Chişinău.
2. The exception of constitutionality was lodged with the Constitutional Court on 15 September 2016 by judge Abd Muhsen, pursuant to 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.
A. the main dispute Circumstances 3. On July 19, 2015, the Agency requested Eta for protection of consumers finding damage its rights by the truthfulness of the Condominium Association as a result of issuance of invoices for payment of electricity to the residents of the block.
4. Whereas Consumer Protection Agency refused the examination of the complaint, Abbas addressed a Eta its prior request, by requesting the annulment of the refusal to examine the complaint and finding its rights abuses.
5. On 2 December 2015, Consumer Protection Agency rejected the request and said that prior to divergence between end consumers and electricity suppliers are to be resolved by the National Agency for energy regulation. In addition, the Consumer Protection Agency has noted that, according to art. 1 of the law on the protection of consumers, the status of Eta has no consumer in relation to the truthfulness of the Condominium Association.
6. On 11 January 2016, Eta has made a contentious administrative proceedings against the Agency for the protection of consumers, in order to review refusal annulment complaint lodged and upheld its examination.
7. On 29 July 2016, Eta, represented by Abbas's lawyer Alexandru Bot, has filed a court judgment concerning the constitutionality of exception raising sintagmelor "authorized for entrepreneur activity" and "commercial purposes", as referred to in article 1 of law No. 105-XV of 13 March 2003 on the protection of consumers.
8. by the conclusion of 2 September 2016, the Court accepted the approach and has ordered the lifting of non-constitutionality exception and transmission of referral to the Constitutional Court for settlement.
B. relevant Legislation 9. The relevant provisions of the Constitution (republished in the Official Gazette, no. 2016, 78, art. 140) are the following: Article 52 52Dreptul "(1) citizens have the right to apply to the public authorities by petitions formulated only on behalf of the applicants.
[…].”


Article 107Administrația the Central specialized public ' (1) the Central specialized bodies of the State ministries. They translate into life under the law, Government policy, and his judgments, and are committed to their areas of responsibility for their work.
(2) for the purposes of coordination and leadership, for exercising supervision in the field of the organisation of the economy and in other areas which do not fall directly within the ministries, powers, shall be established in accordance with the law, and other administrative authorities. "
10. The relevant provisions of law No. 105-XV of 13 March 2003 on the protection of consumers (Official Gazette, 2003 No 126-135, 507) are as follows: Article 1Noțiuni used "for the purposes of this law, the concepts used have the following meaning: trader-any legal or natural person authorized for entrepreneurial activity, manufacturing, transporting, marketing products or parts of products, providing services (supply);
[…]
vendor-any legal or natural person authorized for entrepreneurial activity, carrying out commercial activity in dealing with consumers;
Provider-any legal or natural person authorized for entrepreneur activities or provides services;
[…]
trader-any natural or legal person who, in commercial practices covered by this law, acting in the framework of his economic activity, industrial, manufacturing or craft, and any person who commercially acts on behalf of or on behalf of a trader.
[…].”


Article 28Alte of public administration bodies in charge with protection of consumers "(1) organs of the public administration in charge with protecting consumers, too, are: a) the protection of life and health of consuming donors-Ministry of health;
(b) long distance transport) and international-nal-specialized body of the central public administration in the field of transport;
c) engineering-central public administration body specialising in the construction industry;
d) Tourism-tourism agency;
e) in the fields of energy and water supply and sanitation-State body empowered with regulatory functions in the field of energy and water supply and sanitation;
f) telecommunications-State body empowered with regulatory functions in telecommunications;
g) insurance-State body empowered with the insurance supervisory functions;
h) in the field of banking services-National Bank;
I) in the field of food at all stages of the food chain-the National Agency for food safety. "
11. The relevant provisions of law No. 1525-XIII from February 19, 1998, concerning the energy consumption (M.O., 1998, no. 50-51, art. 366) are the following: 1Noțiuni the main Article "for the purposes of this law, shall use the following notions: [...]
consumer-any natural or legal person who uses energy resources;
[…].”


Article 41 the regulation and monitoring of the sectors energy "(1) the authority vested with powers of regulation and monitoring of the sectors in the field of energy is the National Agency for energy regulation, hereinafter referred to as the Agency.
(2) the Agency shall have the following main functions: supervises compliance of) in the field of energy;
b) promotes and ensures fair competition and efficient operation of energy markets;
(c) issuing licenses for conducting) on energy markets of the activities authorized under the Act with respect to gas, the law on electricity, oil products market Act;
d) monitors the compliance of license holders in the conditions laid down for carrying out approved activities and the provisions of the laws referred to in subparagraph (a). c);
e tariff policy) promotes a proper respect for the rights and interests of consumers;
E1) approves the tariffs in cases stipulated by law, calculated in accordance with the provisions of approved methodologies and monitors the accuracy of their application;
f) oversees the compliance of undertakings whose activity is regulated by the Agency of the cost required and justified in the calculation and submission for approval of rates for regulated activities;
g) exercising control over how consumer rights statement, examines petitions and complaints of consumers and suppliers and misunderstandings arising between them settled within the limits of its competence.
[…]”
In the author's Arguments exception. unconditional-stituționalitate 12. In the non-constitutionality exception, reasoning the author argues that the expressions "qualified for entrepreneur activity" and "commercial purposes", contained in the definitions of the notions of economic agent, seller, supplier and trader from art. 1 of the law on the protection of consumers, the Agency exempts from control actions for consumer protection legal or natural persons who are not authorized for entrepreneurial activity or not acting for commercial purposes.

13. Thus, the author argues that the exception in case of the use of incorrect practices are legal and physical persons who are not authorized for entrepreneurial activity or acting in commercial consumer rights will not be deemed to be raped.   
14. According to the author, the exception being challenged violates 52 consumers, contrary to articles 52 para. (1) paragraphs 1 and 2 and 107. (2) of the Constitution.
B. Assessment Of The Court 15. Examining the admissibility of the referral regarding constitutionality exception, the Court notes the following.
16. In accordance with paragraph 1 of article 135. (1) (a). the control of the Constitution), on notification constitutionality of laws is the responsibility of the Constitutional Court.
17. the Court finds that the plea of unconstitutionality, being raised by Abbas in the Eta, part No. 3-2350/14, which lies on the Center Court, mun. Chişinău, is made by the subject entrusted 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.
18. the Court reiterates that the prerogative to address the exceptions of unconstitutionality, which has 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.
19. Note that the object of the Court of constitutionality exception is approved by MediaWiki "entrepreneurial activity" and "commercial purposes", contained in the definitions of the notions of economic agent, seller, supplier and trader of article 1 of the law on consumer protection.
20. the Court notes that the author claims that the contested rules infringe articles 52 para. (1) paragraphs 1 and 2 and 107. (2) of the Constitution.
21. the Court considers it necessary to point out that a legal provision may constitute the object of the constitutional jurisdiction only where the alleged constitutional rules have impact on the contested rules.
22. In this regard, referring to the alleged infringement of article 52 paragraph 1. (1) paragraphs 1 and 2 and 107. (2) of the Constitution, the Court shall indicate the absence of a causal link between the contested provisions.
23. Of the non-constitutionality exception, the Court finds that the author disputes essentially why the Agency for consumer protection complaints relating to issue invoices for the payment of electricity filed against the truthfulness of the Condominium Association.
24. In this connection, the Court noted that, in accordance with article 28 (e)) of the law on consumer protection, the legislature has granted the State body, authorized with functions of energy regulation, jurisdiction of consumer protection in the field of energy.
25. Thus, under article 41 of the law on the energy authority vested with powers of regulation and monitoring of the sectors in the field of energy is the National Agency for energy regulation.
26. Art. 41 para. (2) (a). g) of the above law provides that the National Agency for energy regulation exercising control over the mode of observance of the rights of consumers, consumer complaints and petitions examined and of suppliers and resolves disagreements arising between them within the limits of its competence.
27. In the light of those rules, the Court finds that the arguments adduced by the author of the exception is not a problem of constitutionality, but aimed at a law enforcement matter.
28. As a consequence, the Court did not remember that the appeal meets the conditions of eligibility for notification constitutionality control and cannot be accepted for examination.
For these reasons, pursuant to article 26 of the law on the Constitutional Court, articles 61 para. (3) and 64 of the code of constitutional jurisdiction and item 28 lit. d) of the regulation on the procedure for examining complaints lodged with the Constitutional Court, the Constitutional Court DECIDES: 1. To be declared inadmissible the appeal regarding plea of unconstitutionality of sintagmelor "authorized for entrepreneur activity" and "commercial purposes", contained in article 1 of law No. 105-XV of 13 March 2003 on the protection of consumers, high fomukong, part in file No. 3-2350/14, pending at the Center Court, mun. Chişinău.
2. 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.

The PRESIDENT of the CONSTITUTIONAL COURT Alexandru Tanase