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 Abdow Balaban, Registrar, considering the appeal filed on September 13, 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 exception of non-constitutionality of article 73 paragraph 2. (4) of the Customs Code No. 1149-XIV of July 20, 2000, raised by Attorney Peter B in file No. 3-32/2015, on the role of the Court of Justice from Moldova.
2. The appeal was lodged with the Constitutional Court on 13 September 2016 by Judge Maria Țugui, in the Căușeni District Court, 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.
3. The author argued that the exception in article 73 paragraph 2. (4) of the Customs Code, under which temporary admission permit holders whose term of validity has not expired shall be obliged to place the goods which are the subject of a contract of financial leasing arrangements, contrary to the provisions of articles 46 para. (1) and 54 of the Constitution and the provisions of article 1 of Protocol 1. 1 to the European Convention on human rights.
4. By decision of the Constitutional Court of 12 October 2016 referral concerning the non-constitutionality exception has been declared admissible, without prejudeca Fund case.
5. In the process of examination of the exception of unconstitutionality, the Constitutional Court requested the opinion of the Parliament, the President of the Republic of Moldova and the Government.
6. At the plenary session of the Court of constitutionality, the exception was supported by lawyer Peter B. Parliament was represented by Mr Valeriu Kuchuk, lead counsel in the General Legal Division of the Parliament Secretariat. The Government was represented by Mr. A. Morărescu, Chief of the control Directorate of the customs collection obligation and legal assistance to the customs service.
The MAIN DISPUTE CIRCUMSTANCES 7. On June 10, 2015 SC "Meganicontrans" LLC has filed a claim against the original Customs Office Bender on the cancellation of administrative acts.
8. The motivation of the request was put forward that, on 10 October 2012 on the basis of the contract of leasing, the Customs Office has issued an authorization Bender on temporary admission, valid until October 21, 2015, conceding the placing in the customs regime of temporary admission of goods used by SC "Meganicontrans" Ltd.
9. As a result of the amendments introduced by law No. 47 of 27 March 2014 to art. 72 para. (4) of the Customs Code, the Customs Office Bender informed the SC "Meganicontrans" about the fact that the goods imported under the authorization of temporary importation of 10 October 2012, to be taken out of the country or placed in a customs procedure, but not later than 1 January 2015.
10. On 16 April 2015, for failure to meet the provisions of article 73 paragraph 2. (4) of the Customs Code, the Customs Office Bender has issued decision decided on the account and receipt of SC "Meganicontrans" SRL has an obligation in the amount of MDL 829,063.63.
11. At its meeting of august 16, 2016, lawyer Peter B requested raising the unconstitutionality of exception art. 73 para. (4) of the Customs Code.
12. By the same date, the Court has ordered the lifting of the exception of unconstitutionality and send referral to the Constitutional Court for address resolution.
PERTINENT LEGISLATION 13. 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.
[…].”
14. The relevant provisions of the customs code of the Republic of Moldova nr. 1149-XIV of July 20, 2000 (reprinted in the Official Gazette, Special Edition from January 1, 2007) are as follows: Article 67Dispoziţii-General (1) the customs regime of temporary admission permit the use of the territory of the Republic of Moldova, with the total or partial suspension of import duties and without application of measures of economic policy to the goods and means of transport intended for re-exportation in the same foreign State with the exception of their normal wear and tear.
(2) throughout the customs procedure for temporary importation, goods and means of transport must remain the property of the person. They may not be sold, rented, given in outsourced bailment, pledged, transferred or made available to another person in the territory of the Republic of Moldova than with the consent of the customs body shall, after payment of import duties and customs procedures for release for free circulation, with the exception of the derogations provided for in this section.
(3) goods placed under an operational leasing contract shall be placed under customs regime of temporary admission. "


Article 68Autorizarea of temporary admission of goods and means of transport, "the Customs Body shall authorize the temporary admission of goods only and means of transportation which can be identified and are prohibited to be placed in the Republic of Moldova."


Article 69Termenul of the goods and means of transport under customs regime of temporary admission "(1) the Customs authorities shall determine the period within which goods and means of transport of import must be re-exported or assigned another customs-approved destination. This period may not exceed three years from the date of placement of goods and means of transport under the temporary importation procedure.
(2) in exceptional circumstances, customs service, at the request of the applicant, may extend the term specified in paragraph 2. (1) in order to allow the use of goods and means of transport. "(4) the term of Office under customs regime of temporary admission of goods placed under an operational leasing contract will be established depending on the length of the lease, but shall not exceed 3 years."



Article 73Punerea for free movement of mărfurilorşi means of transport "(1) means of transport and Goods placed under the temporary importation procedure may be put into free circulation, if they are not prohibited, but after paying import duties. In this case, the amount of import duty shall be determined on the basis of tolling and other payments in effect at the time of placement of goods under customs regime of temporary admission. Determination of the equivalent in national currency of the amounts in foreign currency shall be carried out pursuant to official NBM rate valid on the date of release for free circulation.
(2) in the case of operational lease contract until it expires as a result of the completion of the lessee has the option to purchase this property, the basis for calculation of the import duties will be the customs value of the goods given in the lease as determined at the time of placing them under the temporary admission procedure. The cumulative amount of the payments calculated should not exceed the amount of import duties payable on the date when the asset in the temporary importation procedure, where it had been applied for import customs regime.
(3) Goods which are the subject of a financial leasing contract shall be subject to import customs regime, placing them into circulation after payment of import duties and the application of measures of economic policy.
(4) until 31 December 2014, holders of permits of temporary admission who have entered the territory of the Republic of Moldova, until 1 January 2014 goods covered by a contract of financial leasing: a) are entitled to place them under a customs procedure, with payment of import duties and the application of measures of economic policy; or b) are required to take them out of the territory of the Republic of Moldova until the expiry of the temporary admission permit, but no later than 1 January 2015.
(5) goods introduced by 1 January 2014 under an operational leasing contract which are intended for use as a means of international transport of goods and passengers can be used in the customs regime of temporary importation under total suspension up to 31 December 2015. "
15. The relevant provisions of the Protocol No. 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) are the following: 1Protecţia 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 reasons dictated by public necessity and subject to the conditions provided 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. Of constitutionality exception, the Court observes that it is aimed at essentially the cessation of validity of the authorisation for temporary importation of goods which have been introduced into the territory of the Republic of Moldova and are covered by a contract of financial leasing, as well as modification of the customs regime of temporary admission of goods.
17. Thus, the exception of constitutionality relate to a set of constitutional principles and elements, as well as interconexe property rights and limits of restricting this right.
A. ADMISSIBILITY 18. By its decision of 12 October 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 this case the Customs Code No. 1149-XIV of July 20, 2000, 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. -Constitutionality exception, being raised by Attorney Peter B in file No. No. 3-32/2015, on the role of the Court is sought by Căușeni, subject of conducting 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.
(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 exception of unconstitutionality, which was 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 73 paragraph 2. (4) of the Customs Code, which stipulate that "no later than 31 December 2014, holders of permits of temporary admission who have entered the territory of the Republic of Moldova, until 1 January 2014 goods covered by a contract of financial leasing: a) are entitled to place them under a customs procedure, with payment of import duties and the application of measures of economic policy; or b) are required to take them out of the territory of the Republic of Moldova until the expiry of the temporary admission permit, but no later than January 1, 2015. "
23. the Court supports the author's arguments of unconstitutionality, exception according to which the contested provisions are to be applied to the settlement of the case, because under their empire were born of legal relations, which continues to produce effects and are determined to resolve the dispute for holders of authorisation for temporary importation of goods that have entered the territory of the Republic of Moldova on goods which are the subject of a financial leasing contract.
(4) there is a previous judgment of the Court has as its object the contested provisions 24. Keep in mind that the Court have not been previously challenged the constitutionality.

25. Therefore, the Court considers the appeal regarding plea of unconstitutionality 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. In the present case, the Court retains the author invokes the exception that provisions of article. 73 para. (4) of the Customs Code, in part related to the expiry of validity of the authorisation for temporary importation of goods, the provisions of articles 46 and 54 of the Constitution, as well as art. 1 of Protocol 1 of the European Convention for the protection of human rights and fundamental freedoms (hereinafter referred to as the Convention).
27. Thus, in order to elucidate the issues addressed in the plea of unconstitutionality, the Court will operate with the provisions of article 46 of the Constitution. Also, the Court will apply the case-law of the European Court of human rights (hereinafter the ECHR).
B. the CASE of alleged infringement of the FUND article 46 of the Constitution. The author claims that the exception of unconstitutionality dowm. 73 para. (4) of the Customs Code are contrary to the provisions of article 46 of the Constitution, which stipulate that: "(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.
[…].”
A. Arguments of the author neconsti-exception tuționalitate 29. The motivation of non-constitutionality exception, Sarnia's lawyer argues that the provisions of art. 73 para. (4) of the Customs Code violates art. 46 of the Constitution, which guarantees the right to respect for property. However, by applying the provisions challenged the termination takes place prior to the period of validity of the authorisation for temporary importation of goods covered by a contract of financial leasing, and the licence holder is deprived of the right to benefit from the conditions offered by the customs regime of temporary admission.
30. According to the author, the exception in light of the jurisprudence of the European Court, the licence for the conduct of a business constitutes a "good" within the meaning of the right protected by article 1 of Protocol No. 1 to the European Convention.
31. considers that the exception provisions of the Author article 46 of the Constitution to be applied in conjunction with article 1 of Protocol No. 1 to the European Convention, which guarantees the right to property, and the European Court.
32. The author claims that the cessation of validity of the authorisation constitutes a restriction of the right of ownership.
B. Arguments 33 authorities. In the opinion of Parliament, simplifying tax administration and customs, in the case of financial leasing contracts cannot be regarded as a general rule, but rather as an exception, to stimulate this area.
34. The action of the State granting the customs facilities applicable to goods brought into the country in financial leasing contracts carries a temporary stimulus, given the scope and are applicable during a given period, this right being proportional to the action of terminating facilities if they no longer meet the present needs and General.
35. The Parliament has pointed out that rule art. 73 para. (4) of the Customs Code aims at ensuring the economic well-being of the State, the accumulation of money resources from the national budget and to ensure equitable conditions of the leasing market.
C. Assessment Of The Court 1. General principles 36. The Court recalled that, according to its case-law, the right to property guaranteed by article 46 of the Constitution, is in substance a person's right to respect for his property, movable and immovable property.
37. The Court has held that the principle of the concept of "goods" in article 1 of Protocol 1. 1 the European Convention is not limited to the ownership of goods, so that other rights and interests which constitute the assets may be considered "proprietary rights". According to her may be a good and valid licences or authorisations.
38. According to the case-law of the European Court, the license to conduct a certain activity was consistently considered a "good" within the meaning of article 1 of Protocol No. 1 to the European Convention, to the extent that offer the persons concerned a right incentive, and this regardless of whether the Act is of an administrative nature.
39. The Court, in the case of Tre Traktörer Aktiebolag v. Sweden, has noted that not only the commercial clientele and reputation may be good, but also licences or authorisations.
40. in addition, the European Court, in its jurisprudence, that the termination of a license for carrying out valabilităţi a business constitutes an interference with the right to respect for property guaranteed by article 1 of Protocol 1. 1 to the European Convention.
2. Application of the principles in this question 41. In the present case, the Court finds that as a result of amendments to the second subparagraph of article 73 paragraph 2. (3) the customs code law No. 324 of 23 December 2013, the goods that are the subject of a financial leasing contract shall be subject to import customs regime, placing them into circulation after payment of import duties and the application of measures of economic policy.
42. until these changes, both operating goods placed under an operational leasing contract and goods placed under a financial lease contract could be placed under customs regime of temporary admission. Also, the term of Office under customs regime of temporary admission of goods placed under a financial lease contract shall be established depending on the length of the lease, but shall not exceed 3 years. If the value of the contract of financial leasing exceeded the amount of 2 million euros, the term of Office under customs regime of temporary admission shall raise up to 5 years.
43. The competence of the customs body held the authorisation for temporary importation of goods and means of transport.
44. the court notice that, pursuant to the provisions of the Customs Code, the customs regime of temporary admission permit the use of the territory of the Republic of Moldova, with the total or partial suspension of import duties and without application of measures of economic policy to the goods and means of transport foreign 161 in the same State, except for wear and tear to their normal.

45. the Court finds that, as a result of a change in the customs regime of goods placed under a financial leasing contract, law No. 47 of 27 March 2014 (which came into force on 25.04.2014) amended article 16.73 para. (4) of the Customs Code, being established in respect of the conditions of the goods that were previously placed in the territory of the Republic of Moldova under this scheme.
46. Thus, the legislator has laid down in article 73 paragraph 2. (4) of the Customs Code that until 31 December 2014, holders of permits of temporary admission who have entered the territory of the Republic of Moldova, until 1 January 2014 goods covered by a contract of financial leasing: a) are entitled to place them under a customs procedure, with payment of import duties and the application of measures of economic policy; or b) are required to take them out of the territory of the Republic of Moldova until the expiry of the temporary admission permit, but no later than 1 January 2015.
47. In the present case, the Court finds that the company has acquired 10 October 2012 authorisation for temporary importation of goods which were the subject of a lease finance contract for a term of up to 21 October 2015.
48. At the same time, the court notice that following amendments by law No. 324 of 23 December 2013 and by law No. 47 of 27 March 2014 that society could not dispose of the authorisation for temporary importation of goods, which, although it was issued for a term of three years, by operation of law ceased to be valid. However, its owners were forced up to 31 December 2014 to pay import duties or to remove the goods from the territory of the Republic of Moldova.
49. In the case of Tre Traktörer Aktiebolag v. Sweden, the European Court stressed that the withdrawal or suspension of licenses should not be seen as a lipsire of property within the meaning of the second sentence of article 1 of Protocol 1. 1 to the Convention, but as a measure to regulate the use of the goods, which should be examined in the light of paragraph 2 of this article.
50. According to the case-law of the Court, constant paragraph two of article 1 of Protocol No. 1 must be examined in the light of the General principles set forth in the first sentence and ask for a fair balance between the general interests of society requirements that are satisfied by the measure in question and the fundamental rights of the persons who are affected by this measure. To establishing whether there is a fair balance, the Court recognizes that the State enjoys a wide margin of discretion regarding the choice of both of the means of implementation, as well as on the assessment of whether the consequences of the implementation of these measures are justified in the general interest of achieving the object of the law in question (see, for example, AGOSI v. United Kingdom, judgment of 24 October 1986 , § 52). Just balance will not be found if the person concerned has to endure "excessive individual burden." The existence or absence of compensatory clauses in the relevant legislation may be an important factor in the assessment of whether the contested measure is in compliance with the balance just, necessary and in particular if it imposes on the applicant a burden (see, for example, the Holy Monasteries v. Greece, judgment of 9 December 1994, § 71 and, in the specific context of the paragraph 2 of article 1, Piazza Saffi v. Italy Immobiliare , judgment of 28 July 1999, § 57).
51. the court notice that expiry of validity of the authorisation for temporary importation of goods prior to the term for which they were issued to operators for essentially termination initiated under contract of financial leasing.
52. the Court notes that although it is the exclusive right of the legislator to regulate the customs treatment of goods introduced into the territory of the Republic of Moldova, however, this cannot affect the security of legal relations that arose before.
53. the Court reveals that the security of legal relations represent a situation of legal certainty that extends into the future and is in favour of a person based on an act, regardless of the legal nature of it.
54. At the same time, the court notice that legal security should be regarded with greater strictness in the case of rules with financial implications and consequences, so that those concerned may know precisely the extent of the obligations imposed.
55. the Court notes that, under the terms of the lease, the interest of the lessor is the placement of funds with the purpose of obtaining a profit, and interest of the lessee is to obtain, on behalf of and with the help of the lessor, the leasing object for temporary use with or without subsequent acquisition by paying the property leasing rates. In this context, availability or use of the goods by the exporters pursuant to a contract of financial leasing is based on economic interest, which gives rise to a legitimate hope of getting an income from the operation of the goods.
56. the Court finds that although the legislature has granted a term of holders of temporary importation authorization in order to comply with the new provisions laid down by law (since 25.04.2014 till 01.01.2015), however, in the absence of countervailing measures, the provisions being challenged were a burden without ensuring a "fair balance" between the requirements of the general interest of the State and the requirements of the protection of fundamental rights of the individual.
57. In conclusion, the Court referred to note that through the cessation of validity of the authorisation for temporary importation of goods contract of financial leasing has been an excessive interference in the right of individuals to possess and use the contract goods, which, notwithstanding article 46 of the Constitution.
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. ) and (e)), and 68 of the code of constitutional jurisdiction, the Constitutional Court DECIDES: 1. it recognizes the plea of unconstitutionality of article 73 paragraph 2. (4) of the customs code of the Republic of Moldova No. 1149-XIV of July 20, 2000, raised by Attorney Peter B in file No. 3-32/2015, on the role of the Court of Justice from Moldova.
2. It is hereby declared unconstitutional phrase "until 31 December 2014," and the phrase "but not later than 1 January 2015" from paragraph (4) of article 73 of the code of the Republic of Moldova No. 1149-XIV of July 20, 2000.

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.