IPLS SERVICES: CONSTITUTIONAL COURT OBSERVER

Decision No 64

Tirana, 7 December 1999
Applicant: Chamber of Commerce and Industry/Vlora Division represented by its chairman Mr. Bardhyl Nasto and Mr. Ilirjan Deshalla with Powers of Attorney.
Interested Parties: Council of Ministers, in absentia.
Subject:

Declaration as incompatible with Constitution of Decision of Council of Ministers No 129, dated 18 March 1999 "On Procedures and Terms of Issuance of Permissions and Authorizations for Trading of Oil, Gas and Their By-products", as well as suspension of its implementation.

The applicant has demanded abrogation of this decision for the following reasons:

  1. This decision said to be approved on proposal by the Minister of Public Economy and Privatization has been published in the Official Journal without Minister’s signature to publish runs against Articles 100/4 and 117/I of the Constitution.
  2. This decision also runs against Article 118/2 of the Constitution, is not based on principles of Law No 8450, dated 24 February 1999 and goes beyond the scope of these principles.
  3. Setting terms for financial capital and capacity of deposits for oil and gas reserves, unaffordable by commercial entities, this act, runs against Article of the Constitution by limiting freedom of dealing in this economical activity, limitations which can be set only by law.
  4. Implementation of this decision will only bring monopoly of this activity in the hands of two or three powerful commercial entities and bankruptcy of other entities, thus threatening principles of free market and Law on Competition.
Constitutional Court

After having heard explanations of applicant’s representatives and discussed the case substantially,

Observed

Reasons presented by the Chamber of Commerce and Industry/Vlora Division for incompatibility with Constitution of Decision of Council of Ministers No 129, dated 18 March 1999 "On Procedures and Terms of Issuance of Permissions and Authorizations for Trading of Oil, Gas and Their By-products, is not founded. Therefore, application for abrogation of this decision on unconstitutional grounds must not be admitted.

Publication of decision in the Official Journal without signature of the Minister, who proposed the act, does not mean this act runs against with Article 100/4 of the Constitution. Application of this requirement is asked only for the effect of validity of acts issued by the Council of Ministers and applies not to the publication of the act, but their approval.

In this phase, as turned out to be true during the trial, this organ for this particular case has applied this constitutional rule. The aforesaid decision is signed not only by the Prime Minister, but also by minister proposing the act, Mr. Ylli Bufi. This can be proved by with his signature on the copy of this act, sent to all institutions, months before applicant addressed to this Court.

On the other hand, content of this decision has been published in the Official Journal. This is sufficient enough to give this subordinated act legal effect, as provided in Article 117 of the Constitution.

Other claims of the applicant are ill founded as well.

Further to a substantial analysis of Law No 8450, dated 24 February 1999 "On Processing, Transportation and Trading of Oil, Gas, and their By-products", Council of Ministers is expressly entitled to regulate this area of economic activity with subordinated acts through special provisions, namely Articles 9, 18, 19/3, 20/4, 21, and 23. It is for this reason and not arbitrarily as claimed by the applicant, the Council of Ministers issued the decision, subject to control by this Court.

On the other side, it is true that terms of trading for oil, gas, and their by-products in this decision narrow to some extent freedom to deal in this activity, but they are simply criteria, because they are derived or dictated by the limitations set by law.

The Assembly of the Republic of Albania, based on Article 11 of the Constitution set these limitations purely for important public reasons, while Council of Ministers, within framework of these limitations has defined criteria for the development of such economic activity, originated by added risk with great importance for national economy, environment and protection of the country.

Under such circumstances, the Court comes to the conclusion that Decision of the Council of Ministers does not contain limitations to the freedom to engage in economic activity, as result it is not unconstitutional, as claimed by the applicant.

Further to this argument, the Court finds not founded the applicant’s claim that consequences that may be brought with implementation of this decision will lead to monopolization of this activity in the hands of two or three most powerful entities, avoiding thus competition and causing increase of the prices.

Such consequences are not likely to happen. Even they do happen, the Council of Ministers may eliminate them in any time by changing in any time, according to its powers and within limits allowed by law, the criteria it has defined in this decision.

Therefore

The Constitutional Court of the Republic of Albania, in pursuance of Article 131/a, c and 134/f of the Constitution of the Republic of Albania, and Article 41 of Law No 8373, dated 15 July 1998 "On Organization and Operation of Constitutional Court of the Republic of Albania", unanimously,

Held

Refusal of the applicant as not founded.

This Decision is final, cannot be appealed and comes into force with its publication in the Official Journal.


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