DECISION No. 2 OF FEBRUARY 6, 1996 ON CC No. 26/1995
Motion by a group of Members of Parliament who approached the Constitutional Court on October 26, 1995 asking for interpretation of Art. 18 paras 1, 2, 3 and 4 of the C. in the sense that "concessions and licenses under the law passed on the basis of Art. 18 para 5 of the C. (the Concessions Act, DV, No. 92/1995) shall be granted only over units of property and for activities that are listed in detail in Art. 18 paras 1,2,3 and 4 of the C."
The following texts of the Concession Act (CA) shall have to be declared anticonstitutional under such an interpretatio? Art. 4 para 1 subpara 6 "and civil airports"; Art. 4 para 1 subpara 8 entirely; Art. 4 para 1 subpara 12 entirely; Art. 5 para 3 entirely; and Art. 5 item 7 entirely. The provision of Art. 23 para 2 subpara 3 of the CA according to which the concession contract shall be terminated when the concessionaire a natural person dies or when the concessionaire a legal entity ceases to exist was also challenged. The claim is that such termination of the concession contract violates acquired property rights and the inheritance right.
Another group of Members of Parliament approached the Constitutional Court. That group qualified in the sense of Art. 150 of the C. (CC No. 28/1995).
The MPs asked for interpretation of Art. 17 paras 2 and 4 and Art. 18 para 6 of the C., viz. "whether the Government is entitled to define by a law the property units, the regime of public property, including property outside the exclusive state property that the Constitution provides for in order to meet public needs." By a resolution of the Constitutional Court on November 26, 1995 the Constitutional Court agreed to pass an intepretative decision on the question concerning Art. 17 paras 2 and 4 and Art. 18 para 6 of the C. and incorporated CC No. 28/95 to CC No. 26/95 to be considered and resolved together.
The Constitutional Court ruled that the detailed listing of units of property that are exclusively state owned in Art. 18 para 1 of the C. does not strip the Government of the possibility to establish concession regime on other public property units. There is no text in the Constitution banning it. The provision of Art. 18 para 5 requires that granting concessions over units that are exclusive state property shall conform solely to a statutory act which has the force of a law. That Constitution provision allows concession granting by a general law like the Concession Act and other laws for specific units, for instance the forests, water, etc. Since the Government has the sovereignty to set the regime of units that are state and municipal public property, including those outside the scope of Art. 18 of the C. by a law, there is no reason why this ownership should not be subject to concession regime.
Following the interpretation the Constitutional Court ruled down the challenge of the constitutionality of the following provisions of the Concession Act: Art. 4 para 1 subpara 6 "and civil airports"; Art. 4 para 1 subpara 8; Art. 4 para 1 subpara 12; Art. 5 para 3.
The provision of Art. 23 para 2 subpara 3 of the CA was found not to be in contravention to the Constitution. Termination of the use right granted by a concession contract derives from the special requirements of the law concerning the concessionaire and the terms and conditions of the concession contract.
The text of Art. 5 para 7 of the CA was found anticonstitutional. The provision that a law shall organise state monopoly presupposes constitutionally established activity as the foundation and content of that law. The subject of the monopoly law was not mentioned though it must be on the detailed list of businesses in the Constitution text (Art. 18 para 4). There shall be no other business that is not in the Constitution subject to state monopoly. The blanket reference to a law violates the Constitution with respect to the inadmissibility in principle of monopoly in business and licensing.
