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DECIDES:
1. To dismiss as ungrounded the complaints lodged by a group of Members of Parliament regarding the assumption of responsibility by the Government upon some draft laws.
2. To recognize as constitutional:
- Government Decision No. 155 of 8 April 2015 on assuming of responsibility for draft law on amending and completing some legal acts;
- Government Decision No. 156 of 8 April 2015 on assuming responsibility for the draft 2015 state budget law;
- Government Decision No. 157 of 8 April 2015 on assuming responsibility for draft law on state social insurance budget for 2015;
- Government Decision No. 158 of 8 April 2015 on assuming responsibility for draft law on compulsory health insurance funds for 2015.
3. To recognize as constitutional in the part related to the procedure of adoption through assumption of responsibility by the Government:
- Law No. 71 of 12 April 2015 on amending and completing some legal acts;
- State budget law for 2015, No. 72 of 12 April 2015;
- Law on State Social Insurance Budget for 2015, No. 73 of 12 April 2015;
- Law on Compulsory Health Insurance Funds for 2015, No. 74 of 12 April 2015.
4. The Judgment of the Constitutional Court is final, cannot be appealed, shall enter into force on the date of passing, and shall be published in the Official Gazette of the Republic of Moldova
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JUDGEMENT
ON CONSTITUTIONAL REVIEW
of some Government Decisions on assuming responsibility for some draft laws and laws adopted through assuming responsibility
(Complaints No. 16a/2015 and 17a/2015)
CHISINAU
13 May 2015
In the name of the Republic of Moldova, the Constitutional Court composed of:
Mr. Alexandru TĂNASE, President,
Mr. Aurel BĂIEŞU, Mr. Igor DOLEA,
Mr. Victor POPA, judges,
with the participation of Mr. Sergiu Stratan, registrar,
given the complaint lodged on 10 April 2015 and registered on the same date,
having examined the complaint referred to in a plenary public sitting, given the file documents and proceedings,
deliberating in closed plenary sitting, Delivers the following Judgement:
PROCEEDINGS
1. The case originates in the complaint lodged with the Constitutional Court on 10 April 2015, according to art. 135 para. (1) let. a) of the Constitution, art. 25 let. g) of the Law on the Constitutional Court and art. 38 para. (1) let. g) of the Constitutional Jurisdiction Code, by the Members of Parliament, Mr. Igor Dodon, Mr. Vlad Batrîncea, Mr. Vasile Bolea and Mr. Grigore Novac on constitutional review of the Government Decision No. 155 of 8 April 2015 on assuming responsibility for the draft law on amending some legislative acts, the Government Decision No. 156 of 8 April 2015 on assuming responsibility for the draft 2015 state budget law, the Government Decision No. 157 of 8 April 2015 on assuming responsibility for draft law on state social insurance budget for 2015 and the Government Decision No. 158 of 8 April 2015 on assuming responsibility for the draft law on compulsory health insurance funds for 2015.
2. As well, on the same date, the Member of Parliament, Mr. Igor Vremea, lodged a complaint with the Constitutional Court for constitutional review of the Government Decisions No. 156, No. 157 and No. 158 of 8 April 2015.
3. The authors of the complaints claim that the Government’s assumption of responsibility upon the respective drafts contravenes art. 1 para. (3), 2, 6, 7, 60, 64, 66 let. h), 74, 1061 and 131 para. (2) of the Constitution.
4. Based on the Decision of the Constitutional Court of 16 April 2015, the complaints were declared admissible, without prejudicing the merits of the case.
5. At the same time, taking into account the object identity on the grounds of article 43 of the Constitutional Jurisdiction Code, the Court decided to connect the complaints in one single case.
6. On 12 May 2015, the Member of Parliament, Mr. Vasile Bolea, author of complaints, based on art. 31 para. (2) of the Constitutional Jurisdiction Code, extended the object of the Complaint No. 16a/2015 and requested the constitutional review of the Law No. 71 of 12 April 2015 for amending and completing some legislative acts, the Law on 2015 state budget No. 72 of 12 April 2015, the Law on state social insurance budget for 2015 No. 73 of 12 April 2015, the Law on compulsory health insurance funds for 2015 No. 74 of 12 April 2015, for which the Government assumed the responsibility.
7. During the review of the complaints, the Constitutional Court requested the opinion of the President of the Republic of Moldova, the Parliament and the Government.
8. In the public hearing of the Court, the complaints were supported by Mr. Vasile Bolea and Mr. Igor Vremea, MPs, authors of complaints. The Parliament was represented by Mr. Ion Creangă, Head of the General Legal Division of the Parliament Secretariat. The Government was represented by Mr. Vladimir Grosu, Minister of Justice, Mrs. Maria Cărăuș, Deputy Minister of Finance, and Mr. Valeriu Secaș, Head of the Legal Division of the Ministry of Finance.
THE FACTS
9. On 8 April 2015, the Government of the Republic of Moldova approved: the Decision No. 155 on assuming responsibility for draft law on amending and completing some legal acts (budgetary-fiscal policy); Decision No. 156 on assuming responsibility for the draft 2015 state budget law; Decision No. 157 on assuming responsibility for the draft law on state insurance budget for 2015; Decision No. 158 on assuming responsibility for the draft law on compulsory health insurance funds for 2015.
10. The above mentioned decisions were published in the Official Gazette of the Republic of Moldova No. 85-88 of 8 April 2015.
11. The draft laws, for which the Government assumed responsibility, were presented by the Prime-minister in the plenary session of the Parliament.
12. As no censure motion was lodged within the deadline of 3 days by 12 April 2015, the presented draft laws were considered to be adopted.
13. On 16 April 2015 and 24 April 2015, the mentioned laws were promulgated and published in the Official Gazette of the Republic of Moldova No. 102-104 of 28 April 2015.
RELEVANT LEGISLATION
14. The relevant provisions of the Constitution (M.O., 1994, No. 1) are as follows:
Article 6
Separation and Cooperation of Powers
“The legislative, the executive and the judicial powers are separate and cooperate in the exercise of the assigned prerogatives pursuant to the provisions of the Constitution.”
Article 66
Basic Powers
“The Parliament shall be vested with the following basic powers:
a) adopts laws, decisions and motions;
b) declares the holding of referendum;
c) provides legislative interpretations and ensures unanimity of legislative regulation throughout the country;
d) approves the main directions of internal and external policy of the State;
e) approves the state military doctrine;
f) exercises parliamentary control over executive power in the manners and within the limits provided for by the Constitution;
g) ratifies, denounces, suspends and repeals international treaties concluded by the Republic of Moldova;
h) approves the State budget and exercises control over it;
i) supervises upon the allocation of State loans, upon any aid of economic or other nature granted to foreign countries, upon the conclusion of agreements concerning State loans and credits obtained from foreign sources;
j) elects and appoints State officials, in cases provided by the law;
k) approves the orders and medals of the Republic of Moldova;
l) declares partial or general mobilization of the armed forces;
m) declares the state of national emergency, martial law and war;
n) initiates investigations and hearings concerning any matters touching upon the interests of the society;
o) suspends the activity of bodies of local public administration, in cases provided by the law;
p) adopts acts on amnesty;
q) carries out other powers, as provided for by the Constitution and by the laws.”
Article 74
Adoption of Laws and Decisions
“(1) Organic laws shall be adopted by the vote of the majority of the elected members of Parliament, following at least two readings.
(2) Ordinary laws and decisions are adopted by vote of the majority of present members of Parliament.
[…]”
Article 106.1
Assumption of Responsibility by the Government
“(1) The Government may assume responsibility before the Parliament upon a programme, a statement of general policy or a draft law.
(2) The Government is dismissed if a motion of censure, brought before within 3 days following the date of presentation of the programme, of statement of general policy or of the draft law, has been passed in terms of Article 106.
(3) If the Government has not been dismissed pursuant to para. (2), the lodged draft law is considered to be adopted, and the programme or the statement of general policy becomes mandatory for the Government.”
Article 131
National Public Budget
“(1) The national public budget contains the state budget, the state social insurance budget, as well as the budgets of districts, towns and villages.
(2) The Government shall work out an annual draft of the state budget, and the state social insurance budget, which shall be submitted separately to the Parliament for approval. In the event of establishment of an extra budgetary fund, it shall also be submitted to the Parliament for approval.
(3) If the state budget and the state social insurance budget have not been legally approved with at least 3 days prior to the expiration of the current budgetary exercise, there the state and the state social insurance budgets of the previous year shall be applied further on, until the adoption of the new budgets.
(4) Any legislative initiative or amendment, which entails the increase or diminishing of the budgetary revenues or loans, as well as the increase or curtail of the budgetary expenditures shall be adopted following an approval of the Government.
(5) The district, town and village budgets shall be drafted, approved and carried out in accordance with the law.
(6) No budget expenditure may be approved without prior specification of the funding source.”
15. The relevant provisions of the Law on Public Finance and Budgetary- Fiscal Responsibilities No. 181 of 25 July 2014 (M.O., 2014, No. 223- 230/519) are as follows:
Article 47
Budget Calendar
“(1) At the central level, the main activities and deadlines of the budget calendar are:
a) The Government approves the Medium Term Budgetary Framework and submits to the Parliament the draft law on medium term macro-fiscal ceilings and, if needed, the draft law on amending some legislative acts – by 1 June;
b) The Parliament adopts the law on medium term macro-fiscal ceilings and, if needed, the amendments and completions to the legislation, which result from the budgetary-fiscal policy for the following year – by 15 July;
c) The Government submits to the Parliament the semi-annual report on national public budget execution and its components for the current budgetary year – by 15 August;
d) The Government approves and presents to the Parliament the draft budgetary laws for the next year – by 15 October;
e) The Parliament adopts the budgetary laws for the next year – by 1 December;
f) The Ministry of Finance, the National Social Insurance House and the National Health Insurance Company conclude and submit to the Court of Account the annual reports on execution of the state budget, state social insurance budget and compulsory health insurance funds – by 15 April of the year following the finished budgetary year;
g) The Court of Accounts carries out the audit of the annual reports on execution of the state budget, state social insurance budget and compulsory health insurance funds for the finished budgetary year and submits the audit report to the Government – by 1 June;
h) The Government submits to the Parliament the annual reports on execution of the state budget, state social insurance budget and compulsory health insurance funds for the finished budgetary year – by 1 June;
i) The Parliament approves the annual reports on execution of the state budget, state social insurance budget and compulsory health insurance funds for the finished budgetary year – by 15 July.
[…]”
IN LAW
16. Having examined the content of the complaints, the Court notes that they refer, in essence, the adoption of laws from the area of the national public budget using the institution of assumption of responsibility by the Government before the Parliament.
17. Hereby, the compliant refers to a set of interconnected constitutional elements and principles, such as the powers of the Parliament as the only legislative authority of the state, the role of the Government and Parliament in developing and adopting the national public budget, the institution of assumption of responsibility, all of them being analyzed in the light of the principle of separation and collaboration of powers in the state.
A. ADMISSIBILITY
18. According to its Decision of 16 April 2015, the Court held that based on article 135 para. (1) let. a) of the Constitution, article 4 para. (1) let. a) of the Law on Constitutional Court and art. 4 para. (1) let. a) of the Constitutional Jurisdiction Code, the Constitutional Court is competent to examine a complaint relating to the constitutional review of the Government Decisions.
19. Article 25 let. g) of the Law on the Constitutional Court and art. 38 para. (1) let. g) of the Constitutional Jurisdiction Code empowers the Member of Parliament with the right to lodge applications to the Constitutional Court.
20. The Court notes that the object of the constitutional review refers to the Government Decisions No. 155, No. 156, No. 157 and No. 158 of 8 April 2015, via which the Government assumed the responsibility to the Parliament in relation to the draft laws on national public budget, as well as the Laws No. 71, No. 72, No. 73 and No. 74 of 12 April 2015, adopted via the procedure of assuming the responsibility.
21. The Court notes that the contested acts were not previously subject to constitutional review.
22. Hence, the Court holds that the complaints cannot be dismissed as inadmissible and there are no other grounds to discontinue the proceedings under article 60 of the Constitutional Jurisdiction Code.
23. In this respect, the Court states that the prerogative it has been vested with through art. 135 para. (1) let. a) of the Constitution implies the establishment of the correlation between the legislative norms and the text of the Constitution, taking into account the principle of supremacy of the Constitution.
24. The Court notes that to support the unconstitutionality critics, the complaints’ authors invoked the alleged violation of art. 1 para. (3), 2, 6, 7, 60, 64, 66 let. h), 74, 1061 and 131 para. (2) of the Supreme Law.
25. In this respect, referring to the invocation of art. 1 para. (3), 2, 7, 60, 64 and 74 of the Constitution, the Court holds that the complaints’ authors did not motivate the incidence of constitutional norms on the contested acts.
26. Due to these findings and in order to elucidate the compliance of the contested normative acts with the constitutional norms, the Court will operate, especially, with the provisions of art. 66 let. h) and 131 combined with art. 1061 and 6 of the Constitution, as well as with its previous case- law.
B. THE MERITS
ALLEGED VIOLATION OF ARTICLES 66 LET. h) AND 131 PARA. (2) COMBINED WITH ARTICLES 1061 AND 6 OF THE CONSTITUTION
27. The authors of the complaints claimed that the contested provisions contradict article 66 letter h) of the Constitution, according to which:
“The Parliament shall be vested with the following basic powers: […]
h) approves the State budget and exercises control over it;
[…].”
28. As well, the complaints’ authors invoke the violation of art. 131 para.
(2) of the Supreme Law, according to which:
“[…]
(2) The Government shall work out an annual draft of the state budget, and the state social insurance budget, which shall be submitted separately to the Parliament for approval. In the event of establishment of an extra budgetary fund, it shall also be submitted to the Parliament for approval.
[…]”
29. The contested norms will be reviewed as well in the light of article 1061 of the Constitution, which provides:
“(1) The Government may assume responsibility before the Parliament upon a programme, a statement of general policy or a draft law.
(2) The Government is dismissed if a motion of censure, brought before within 3 days following the date of presentation of the programme, of statement of general policy or of the draft law, has been passed in terms of Article 106.
(3) If the Government has not been dismissed pursuant to para. (2), the lodged draft law is considered to be adopted, and the programme or the statement of general policy becomes mandatory for the Government.”
30. In authors’ opinion, the provisions subject to constitutional review also violate article 6 of the Constitution, according to which:
“The legislative, the executive and the judicial powers are separate and cooperate in the exercise of the assigned prerogatives pursuant to the provisions of the Constitution.”
1. Arguments of complaints’ authors
31. According to the complaints’ authors, by adopting the state budget using the procedure of assumption of responsibility, the Government violated flagrantly the constitutional principle of separation of powers in the state and the provisions of art. 66 of the Constitution, which stipulate expressly the power of the Parliament to approve the state budget.
32. Article 1061 of the Constitution, which provides the Government with the power to assume the responsibility for the draft legislative acts submitted to the Parliament, is general, while art. 66 let. h) and art. 131 of the Supreme Law are special and imperative norms which provide the Parliament the exclusive competence to approve the state budget.
33. As well, the complaints’ authors support that this simplified modality to legislate should be used only when it is not possible to pass the draft law through an ordinary procedure or urgent procedure, or when the political structure of the Parliament does not allow passing the draft law in the ordinary or urgent procedure, conditions which do not subsist in the given case.
2. Arguments of authorities
34. In his written position, the President of the Republic of Moldova mentioned that the norm of article 1061 of the Constitution provides a derogation from the general legislative process. In this respect, it has a special nature and allows the Government to assumed under the conditions set in art. 119 of the Parliament’s Regulation, the responsibility for any ordinary or organic law, including for the state budget law. Based on these grounds and taking into account the fact that under the procedure for Government’s assuming responsibility, the texts of the respective decisions, as well as the full text of the draft laws were published in the Official Gazette, and the assumption of responsibility took place in the plenary session of the Parliament, the contested acts do not contravene the Constitution.
35. According to the Government’s opinion, the decision to assume responsibility is based on the constitutional provisions and does not infringe the Parliament’s enactment powers, but excludes the delay in adoption of the laws which are subject to constitutional review and respectively the creation of any financial blocking in the budgetary sector.
36. At the same time, in its position, the Government supports that there no condition imposed by the Constitution which would limit the exclusive determination by the Government of the opportunity an content of its initiative, in particular, article 1061 of the Constitution does not set criteria and does not list the areas in relation to which the Government may assume itself the responsibility.
37. Moreover, in Government’s opinion, the criteria set by the Constitutional Court in its case-law for determining the opportunity of using the institution of assumption of responsibility were kept.
38. According to the Parliament’s opinion, when adopting the contested acts through the procedure of assumption of Government’s responsibility to the Parliament, the norms of the legislation in force and those of the Constitution were fully respected, the MPs tacitly consenting to the need and importance of adopting the respective package of laws as in extremis measure, as compared to the eventual risks at that moment if they would have been submitted for debates in the Parliament according to the regulatory procedures.
3. Findings of the Court
3.1. General principles
39. The Court holds that according to article 6 of the Constitution, in the Republic of Moldova, the legislative, the executive and the judicial powers are separate and cooperate in the exercise of the assigned prerogatives pursuant to the provisions of the Constitution.
40. In this respect, the Court mentions that the authorities which represent these three powers are vested with certain prerogatives, according to the provisions of the Constitution, and none of them has the possibility to usurp the duties of the other power or to transfer to the other power the exercise of such duties.
41. Based on its Judgement No. 3 of 9 February 2012, the Court notes:
“32. The content and the meaning of the separation of powers theory implies a balance of powers and their relative independence, a system of breaks, balances and counterbalances, which would influence mutually the authorities, not allowing them to exceed the limits set by the Constitution in exercising the powers.”
42. The Court mentions that according to art. 60 para. (1) of the Constitution, the Parliament is the supreme representative body of the people of the Republic of Moldova and the sole legislative authority of the State.
43. In this respect, in its Judgement No. 20 of 4 June 2014, the Court mentioned:
“61. Being the only legislative authority, the function of law enactment is the main function of the Parliament, which implies its capacity to develop and adopt laws.”
44. At the same time, based on articles 1061 and 1062 of the Constitution, the legislator has vested the Government with law-enactment powers. Hence, if article 1061 of the Constitution regulates the institution of assumption by the Government of the responsibility before the Parliament in relation to a program, statement of general policy or draft law, then article 1062 established the procedure for legislative delegation.
45. The Court holds that both, article 1061 and article 1062 were included in the Supreme Law as a result of the Constitution review via the Law No. 1115-XIV of 5 July 2000.
46. Thus, the Fundamental Law established 3 modalities of law- enactment: a natural and ordinary one, which according to article 60 of the Constitution, belongs to the Parliament and two exceptional ones, which may be used by the Government, which allow it to enter the area of primary regulation of social relations – either via the assumption of responsibility in before the Parliament (art. 1061), or by issuing ordinances (art. 1062).
47. The Court mentions that based on article 1061 para. (1) of the Constitution, the Government may assume responsibility before the Parliament upon a programme, a statement of general policy of a draft law.
As well, the constitutional norm sets forth that the Government is dismissed if a motion of censure, brought before within 3 days following the date of presentation of the programme, of statement of general policy or of the draft law, has been passed in terms of article 106 (by the vote of the majority of MPs). If the Government has not been dismissed pursuant to para. (2), the lodged draft law is considered to be adopted, and the programme or the statement of general policy becomes mandatory for the Government.
48. The Court notes that the procedure of assumption of responsibility by the Government before the Parliament upon a programme, a statement of general policy of a draft law is not regulated in detail by article 1061 of the Constitution. At the same time, neither article 119 of the Parliament’s Regulation details the procedure, specifying that the assumption of responsibility is possible only for organic or ordinary laws and that it happens through adoption of a Government Decision.
49. The Court holds that in the light of article 1061, the history of appearance of the constitutional institution of assumption of responsibility by the Government before the Parliament, the forms of its application in the constitutions of other states were analyzed by the Constitutional Court in its Judgement No. 28 of 22 December 2011.
50. The Court holds that the assumption of responsibility by the Government upon a draft law represents an indirect legislative modality to adopt a law.
51. The Court, in its Judgement No. 28 of 22 December 2011, referring to the procedure of assumption of responsibility by the Government, mentioned:
“55. [T]he procedure of assumption of responsibility by the Government before the Parliament is a peculiarity of the legislative procedure, according to which the draft law does not follow anymore the legislative procedure provided in the Parliament’s Regulation, it is subject to a strictly political debate, which results in maintaining or dismissing the Government through withdrawal of the confidence offered by the Parliament.
[...]
58. [T]he procedure itself of assumption of responsibility by the Government before the Parliament, being a legal reality, does not prejudice “the legislative monopoly of the Parliament” as long as this modality of law-enactment is used under the conditions provided in the Fundamental Law. The procedure of assumption of responsibility by the Government does not exclude and cannot be used to exclude parliamentary oversight through initiation of a motion of censure. The fact that excludes this constitutional procedure is the debate of the draft law, but this is not an unconstitutional consequence, as it results from art. 1061 of the Constitution.”
52. The Court mentions that although the constituent legislator empowered the Government with duties of law-enactment, the provisions of article 1061 of the Constitution cannot be interpreted in the meaning that would allow the Government to substitute the Parliament anytime and under any conditions.
53. Hence, the Court underlines that, although at first sight the possibility of assumption of responsibility is not subject to any conditions, the opportunity and content of the initiative remain theoretically under the exclusive determination of the Government, this thing cannot be absolute.
54. In this respect, in its Judgment No. 28 of 22 December 2011, the Court set the criteria to be taken into consideration when applying this constitutional mechanism, and namely:
“60. [T]he procedure of assumption of responsibility by the Government upon a draft law, as a simplified modality of law-enactment, should be in extremis measure determined by the emergency in adopting the measures contained in the law upon which the Government assumed the responsibility, by the need for the given regulation to be adopted in maximum celerity, by the importance of the regulated area and by the immediate application of the given law.”
55. Additionally, the Court holds that the assumption of responsibility by the Government, being a procedure which operates in extremis, whenever it relates to a draft law, the last one should contain, through the regulatory object, provisions which clearly refer to only one area.
56. The Court mentions that the Parliament is and remains to be the only legislative authority, even in case of assumption of responsibility by the Government. The provisions of article 1061 of the Constitution regulate expressly an exception from the rule established through the constitutional provision of article 60, which does not have the nature of moving the Parliament away from fulfilling its role, as the procedure of assumption of responsibility by the Government is carried out in front of the Parliament and it is fulfilled under supervision and control of the supreme legislative forum, which, according to the constitutional provisions, has the right to dismiss the Government by initiating and debating a motion of censure.
57. The accepting of the idea according to which the Government may assume the responsibility upon a draft law in a discretionary way, anytime and in any conditions would equal with the transformation of this authority into a legislative public authority competing with the Parliament.
58. Hence, the Court mentions that eluding the principles and criteria listed under the assumption of responsibility by the Government may be determine the violation of the constitutional norms.
59. The Court holds that additionally to the Judgement No. 28 of 22 December 2011, it submitted the Parliament an address, requesting clear regulation of the procedures for assumption of responsibility by the Government, but it was not yet executed.
60. Thus, in the absence of a detailed legal regulation, the Court with discernment, in every individual case, will verify the observance of the principles listed in its case-law in assumption of responsibility by the Government upon a draft law.
3.2. Application of principles in the present case
a) Competition of constitutional norms in matters related to adoption of the national public budget
61. The Court holds that on 9 April 2015, the Government assumed the responsibility before the Parliament upon draft laws related to the state budget, social insurance budget, compulsory health insurance funds and budgetary-fiscal policy.
62. The Court mentions that article 66 of the Supreme Law sets forth the main powers of the Parliament, one of which is approving the state budget and exercising control over it.
63. At the same time, according to article 131 para. (2) of the Constitution, the Government works out an annual draft of the state budget and the state social insurance budget, which are submitted separately to the Parliament.
64. Analyzing the provisions of the cited articles, corroborates with the provisions of article 1061 of the Constitution, a competition of the constitutional norms is attested, the first ones empower the Parliament with the prerogative to approve the state budget, but the last one provides the Government the possibility to assume responsibility for any draft law.
65. To elucidate this competition of the constitutional norms, it is necessary to interpret them, using the methods of legal interpretation applicable to the given case.
66. In this respect, interpreting grammatically article 66 of the Constitution, it may be noted that the constituent legislator used the phrase “basic powers” and not “exclusive powers” of the Parliament. Thus, the Court reveals that the text of the Constitution, through article 66, determines the powers of the legislative body, representing a general norm of pointing out the operation areas of the legislative power. This fact does not exclude the applicability of article 1061 of the Constitution, which is a special norm empowering the Government, as an exception, with law-enactment duties.
67. Moreover, interpreting systematically the entire article 66, it is pointed out that letter a) provides the Parliament the prerogative to adopt laws, decisions, and motions. Per a contrario, in the event in which the provisions of article 66 are interpreted as exclusive powers of the Parliament, the institution of assumption of responsibility by the Government would be inoperable under the aspect of assumption of responsibility upon all the draft laws.
68. As well, according to the rationale of the complaints’ authors, article 74 of the Constitution (adoption of laws and decisions), which imposes the adoption of organic laws by the vote of the majority of elected MPs, following at least two readings, would make inoperable the application of the institution enshrined by the constituent legislator in article 1061, which would exclude the ordinary procedure for adoption of laws.
69. As for article 131 of the Constitution, the Court mentions that is covers special norms, but they are not related to the procedure established through article 1061. The constituent legislator, taking into account the importance of the national public budget, has regulated the modality of its adoption through a separate article, hence establishing some constitutional imperatives, which are not found when the Parliament adopts other organic laws.
70. Article 131 will be applied as a special norm when the national public budget is adopted in the ordinary procedure by the Parliament.
71. In the context of the above-mentioned, the Court holds that the provisions of art. 66 let. h) and art. 131 para. (2) of the Constitution, examined in relation with the provisions of article 1061, do not exclude the use by the Government of the procedure of assumption of responsibility upon the adoption of laws which refer to the national public budget.
b) Adoption of the national public budget through the procedure of assumption of responsibility
72. The Court reiterates that the procedure of assumption of responsibility by the Government upon a draft law should be in extremis measure, determined by: the importance of the regulated area; urgency and celerity of law adoption through procedure of assumption of responsibility; immediate application; circumscribing the adopted laws to one single area of regulation.
73. Respectively, the Court will examine the constitutionality of adopted acts through the procedure of assumption of responsibility by Government taking into account the above-mentioned criteria.
- Importance of the regulated area
74. The Court mentions that the basis for the entire budgetary system is generically called as “state budget”, which covers all the revenues and expenses necessary for the implementation of the economic, social and other strategies of the Government.
75. The Court holds that the state budget represents the most important instrument of state’s intervention in economy through its fiscal and budgetary policies. The state budget contributes to fulfilling the balance between the collective needs and the financing means for them.
76. At the same time, the Court underlines that the consolidated national public budget represents the central link of the financial and crediting system of a country, as well as the main financial balance of operative and compulsory nature, for a determined period of time. In general, the budgetary and fiscal solutions have considerable social-economic implications. They create conditions for economic growth and implicitly of the population’s standard of living.
- Emergency and celerity of adopting laws through the procedure of assumption of responsibility
77. The Court reveals that the Law on Public Finances and Budgetary- Fiscal Responsibility No. 181 of 25 July 2014 determines the general legal frame in the area of public finance, in particular: sets forth the budgetary- fiscal principles and rules; determines the components of the national public budget and regulates the inter-budgetary relations; regulates the budget calendar and the general procedures regarding the budgetary process; delimits the competences and responsibilities in the area of public finances.
78. In this respect, art. 47 of the mentioned law sets forth the budget calendar, which represents the activity plan related to the budgetary process, establishing the deadlines for activities’ fulfilment and the responsible authorities. Hence, according to this article, the Government should approve and submit to the Parliament the draft budget laws for the next year – by 15 October, and the Parliament should adopt them – by 1 December.
79. At the same time, para. (3) of article 131 of the Constitution sets forth that if the state budget and the state social insurance have not been legally approved with at least 3 days prior to the expiration of the current budgetary exercise, there the state and the state social insurance budgets of the previous year will be applied further on, until the adoption of the new budgets.
80. The Court holds that the state budget, the social insurance budget and health insurance budget were not adopted by April 2015. In this respect, in line with the constitutional norm (article 131) and the provisions of the Law No. 181 of 25 July 2014 the provisional budget was applied.
81. According to article 57 para. (2) of the Law No. 181 of 25 July 2014, the provisional budget is established and executed in line with the provisions of the previous year budget laws/decisions, taking into consideration the modification made during the year and considering the following peculiarities:
a) excluding or reducing the volume of finished programs of expenses or those to be finished in the current budgetary year;
b) establishing the budget balance at a level which will not exceed its value approved in the budget for the previous year. At the same time, in the period of applying the provisional budget, it is not allowed to perform expenses for new actions or measures as compared to the previous year.
82. Taking into account the budgetary restrictions, in the absence of a newly approved budget, the Court holds that due to pertinent arguments of the Government for assumption of responsibility for the package of laws related to the national public budget, and namely: non-coverage by the provisional budget of the assumed salary increases and of the social assistance for the citizens who benefit from pensions and other allowances, the impossibility of carrying out the negotiations with the development partners, difficulties created as a result of the delays in adjusting fiscal legislation, tergiversating the state’s commitments related to the implementation of a number of reforms.
83. Hence, based on the above-mentioned, the Court notes that the adverse and tardive adoption of the national public budget may determine economic blockings, unemployment and poverty.
84. At the same time, the Court underlines the role of the Government in adopting the national public budget. Thus, according to art. 131 para. (4) of the Constitution, any legislative proposal or amendment implying increase or decrease of budgetary revenues or loans, as well as increase or decrease of budgetary expenses may be adopted only after they are accepted by the Government.
85. The Court recalls that the mentioned constitutional provisions enshrine the mandatory existence of the prior approval of the Government in relation to the legislative amendments or proposals, which imply the increase or decrease of expenses, revenues or loans as an imperative condition, from which the legislative cannot derogate during the process of approving the national public budget, and the non-observance of this condition represents a violation of the procedure set by the Constitution in relation to law-enactment in budgetary area. This constitutional principle is incident for the budgetary procedure.
86. In its Judgement No. 29 of 22 May 2001 on interpretation of the provisions of art. 131 para. (4) of the Constitution of the Republic of Moldova, the Court underlined:
“The imperative condition regarding the apriori control of the executive authority over the budgetary process is determined by the right and obligation of the Government to ensure the fulfilment of the internal and foreign policies of the state, expressed in its activity program, accepted by the Parliament (art. 96, art. 98 para.
(3) of the Constitution).”
87. As well, in its Judgement No. 6 of 13 February 2014, the Court mentioned:
“50. [L]imiting the modality of exercising the legislative initiative and restrictive conditioning of the legislative procedure in the budgetary area is based on the rationale of executive powers of the Government, which in the light of article 96 of the Constitution, ensures the carrying out of the state internal and external policy and shall exercise the general management of the public administration.”
88. In this context, through its Judgement No. 2 of 28 January 2014, the Court mentioned that “[...] the rule of art.131 para. (4) of the Constitution is the single constitutional norm that imposes a direct decisional dependency of the Parliament before the Government.Such a regulation […] was developed by the constituent legislator so as to correlate the efforts of authorities adopting the national budget, as plan of annual public finance, with the efforts of the authorities executing this budget. As well, the aim of the constitutional norm is to prevent the situations of unpredictable legislative intervention that may disrupt the budgetary processes planned by the executive based on the legislative programs.”
- Immediate enforcement of the given laws
89. The Court holds that the laws adopted through the procedure of assumption of responsibility by the Government were enforced immediately after their publication in the Official Gazette of the Republic of Moldova.
- Circumscribing the adopted laws to one single regulatory area
90. The Court holds that the contested normative acts, as mentioned above, refer to the assumption of responsibility by the Government before the Parliament for adoption of laws in the area of the national public budget.
91. In this respect, even though, at the first sight, the Law No. 71 of 12 April 2015 for amending and completing some legislative acts, as a result of its incidence over a number of legislative acts, would refer to a number of regulatory areas, an analysis of all of them acknowledges that through the given law, the Government has intervened with certain modification and competitions in the area of the budgetary-fiscal policy, which determines the state budget.
Conclusions
92. Performing a cumulative analysis of compliance with the criteria set by the Court in its case-law, the use by the Government of the assumption of responsibility regarding the draft laws related to the national public budget is circumscribed to article 1061 of the Constitution.
93. At the same time, the Court mentions that although art. 1061 of the Constitution empowers the executive body with law-enactment duties, the same constitutional norm provides the legislative body with the plenitude of the competence to invalidate the draft laws for which the Government assumed responsibility, and namely by submitting the motion of censure for dismissal of the Government.
94. Through the possibility of expressing the vote of no confidence to the Government, the Parliament places a huge pressure on the executive, whenever it decides upon the opportunity of adopting laws through the institution of assuming responsibility before the legislative.
95. The Court notes that the parliamentary factions, represented by the authors of the complaints, although account for one fourth of the number of MPs, did not use the constitutional instrument of lodging a motion of censure for dismissing the Government, invoking the appropriate arguments.
96. In the absence of a lodged motion of censure and its voting, the draft laws contested by the complaints’ authors are considered to be adopted.
97. In conclusion, the Court holds that in the respective situation, the use by the Government of the assumption of responsibility upon the draft laws regarding the national public budget is in line with article 6, 66, 1061 and 131 of the Constitution.
Resulting from these reasons, and based on art. 140 of the Constitution, art. 26 of the Law on Constitutional Court, art. 6, 61, 62 let. a) and 68 of the Constitutional Jurisdiction Code, the Constitutional Court
DECIDES:
1. To dismiss as ungrounded the complaints lodged by a group of Members of Parliament regarding the assumption of responsibility by the Government upon some draft laws.
2. To recognize as constitutional:
- Government Decision No. 155 of 8 April 2015 on assuming of responsibility for draft law on amending and completing some legal acts;
- Government Decision No. 156 of 8 April 2015 on assuming responsibility for the draft 2015 state budget law;
- Government Decision No. 157 of 8 April 2015 on assuming responsibility for draft law on state social insurance budget for 2015;
- Government Decision No. 158 of 8 April 2015 on assuming responsibility for draft law on compulsory health insurance funds for 2015.
3. To recognize as constitutional in the part related to the procedure of adoption through assumption of responsibility by the Government:
- Law No. 71 of 12 April 2015 on amending and completing some legal acts;
- State budget law for 2015, No. 72 of 12 April 2015;
- Law on State Social Insurance Budget for 2015, No. 73 of 12 April 2015;
- Law on Compulsory Health Insurance Funds for 2015, No. 74 of 12 April 2015.
4. The Judgment of the Constitutional Court is final, cannot be appealed, shall enter into force on the date of passing, and shall be published in the Official Gazette of the Republic of Moldova
President Alexandru TĂNASE
Chisinau, 13 May 2015
JCC No. 11
Casefile No. 16a/2015