The Court Examined the Constitutionality of Certain Provisions on Transportation Expenses of Goods Included in Customs Value

On Tuesday, 22 May 2018, the Constitutional Court of Moldova delivered a judgment on the constitutionality of the phrase "charged for the same means of transportation" of para. 8 (3) of the Regulation on declaring the customs value of goods brought into the territory of the Republic of Moldova, approved by the Government Decision no. 600 of 14 May 2002. (Application no. 38g/2018) 

Circumstances of the case
The exception of unconstitutionality underlying this case was raised by the attorney Petru Balan in the case no. 3-94/17 pending before the Court of Law of Chișinău, central office. According to him, calculation of transportation expenses by the declarant, based on the amount of transportation expenses applicable to the same means of transportation, in case the transportation of goods is made with one’s own means of transportation, in case the goods are transported directly by him, affects both the principle of free competition and the right to property. 

Assessment of the Court
The Court analysed this exception of unconstitutionality in light of the law quality standards.

It noted that par. 8 (3) of the Regulation on declaring the customs value of the goods brought into the territory of the Republic of Moldova provides that in case the goods are transported with purchaser’s own means of transportation to the place of introduction into the customs territory, such expenses are calculated by the declarant based on the amount of transportation expenses charged for the same means of transportation and are to be included in customs value.

The Court also noted that the issue in this case is whether the phrase ”charged for the same means of transportation” has a clear definition and is sufficiently predictable, so that the declarant may reasonably conclude what is the calculation basis of transportation expenses included in customs value. 

Therefore, the Court applied a law quality test with regard to para. 8 (3) of the Regulation on declaring customs value of the goods brought into the territory of the Republic of Moldova. 

The Court emphasised that a possible non-compliance with the challenged conditions provided by the Regulation are of a criminal nature, given their preventive and repressive character. In order to substantiate this assertion, the Court referred to the case of Prigală v. Republica Moldova of 13 February 2018, §§ 27-28, where the European Court of Human Rights observed that the fine and penalties for the delays in this case were not aiming at pecuniary reparations for the material damage, but at holding liable in order for the challenged actions to be avoided. Accordingly, non-compliance by the claimant with fiscal provisions amounted to an “offence” within the meaning of Article 7 of the European Convention on Human Rights. 

The issue raised by this exception of unconstitutionality pinpoints the imposition to the declarant, by the regulatory decision, additional customs obligations, as well as penalties for declaring lower transport expenses as compared to other similar transactions, carried out by other economic operators. 

Considering the criminal nature in the autonomous European meaning of sanctions envisaged by the cases included in the category provided by the challenged provisions and their effects for individuals, the Court underscored that there is an a fortiori need for the condition of foreseeability of the law to be complied with. 

The Court noted that the phrase “the same means of transportation” may imply either a comparison with the average price charged by professional transporters on the transport market, or a comparison with the cost actually incurred for such a transport, with the same means of transportation.

It also observed that the declarants who are also owners of seagoing vessels may incur lower expenses when transporting the goods they own, as compared to the price charged by professional transporters, considering that in case of the former the cost of transportation is smaller. It may be also lower than the cost incurred by other enterprises that own means of transportation of the same type. 

The Court held that the challenged provisions allow for differing interpretations. For this reason, individuals in question could not be able to reasonably decide what is the calculation amount of goods transportation expenses and, subsequently, the cases they may be held liable. 

Accordingly, the Court found that the challenged legal text is phrased in an imprecise and unpredictable manner and confers upon the authorities applying them a wide margin of discretion. Subsequently, it does not comply with the law quality standards.

Conclusions of the Court
Stemming from the above mentioned, the Court has partially admitted the exception of unconstitutionality raised by the attorney Petru Balan in the case no. 3-94/17, pending before the Court of Law of Chișinău, central office. 

It declared unconstitutional the phrase: ”charged for  the same means of transportation” of par. 8 (3) of the Regulation on declaring the customs value of goods brought into the territory of the Republic of Moldova, approved by the Government Decision no. 600 of 14 May 2002. 

This judgment is final, cannot be appealed, comes into force at the date of its adoption and is published in the Official Journal of Moldova. 

The full reasoning may be consulted in the Judgment of the Constitutional Court of Moldova.

This is an English language courtesy translation of the original press-release in Romanian language.