The Association Agreement between the Republic of Moldova and the European Union – constitutional

On 9 October 2014 the Constitutional Court delivered its Judgment on the constitutionality of the Association Agreement between the Republic of Moldova, on the one hand, and the European Union and the European Atomic Energy Community and its Member States, on the other hand, and of the Law No.112 of 2 July 2014 on its ratification (Complaint No. 44a/2014). 

Circumstances of the case

At the origin of the case lies the complaint submitted to the Constitutional Court on 14 July 2014 by the Parliamentary Faction of the Party of Communists of the Republic of Moldova.

The authors of the complaint alleged, in particular, that the challenged provisions infringe the sovereignty, independence, neutrality, economic and financial interests of the Republic of Moldova, being contrary to Articles 1, 7, 8, 9 para. (3), 11 and 126 of the Constitution.

The Constitutional Court ruled on the complaint in the following composition:

Mr Alexandru TĂNASE, President,

Mr Aurel BĂIEŞU,

Mr Igor DOLEA,

Mr Tudor PANȚÎRU,

Mr Victor POPA,

Mr Petru RAILEAN, judges

Conclusions of the Court 

The Court held that through the Declaration of Independence, the founding document of the Republic of Moldova as a state, the Republic of Moldova has asserted its desire to establish political, economic, cultural, as well as other types of relations in the fields of mutual interest with European countries, with all the countries of the world, being prepared to proceed on establishing diplomatic relations with them, according to the norms of international law and to the practice existing worldwide on this matter.

The Declaration of Independence comprises elements that have been considered essential in defining the constitutional identity of the new state and its people: aspirations for freedom, independence and national unity, linguistic identity, democratization, rule of law, market economy, history, norms of ethics and of international law, European orientation, insurance of social, economic, cultural rights and political freedoms for all citizens of the Republic of Moldova, including persons belonging to national, ethnic, linguistic and religious groups.

The Declaration of Independence marked the detachment from the totalitarian Soviet area of values and the reorientation of the new independent state towards the European area of democratic values.

The Court noted that the orientation towards the European area of democratic values is a defining element of the constitutional identity of the Republic of Moldova.

Therefore, the process of European integration of the Republic of Moldova not only complies with the constitutional identity of the country, any other adverse orientation is unconstitutional a priori.

The Court noted that, immediately upon the declaration of independence, the European aspirations found their reflection in the consecutive actions of Moldavian authorities. Therefore, on 28 November 1994 was signed the Partnership and Cooperation Agreement (PCA), which entered into force on 1 July 1998. In the Activity Program of the Government of the Republic of Moldova for the period 1999 – 2002 entitled “The rule of law, economic revitalization and European integration”, approved by Government Decision No. 270 of 8 April 1999, the integration into the European Union has been established as the main strategic objective of the foreign policy of the Republic of Moldova. On 22 February 2005 was signed the Republic of Moldova - EU Action Plan. The irreversibility of the European vector of the Government of the Republic of Moldova has found the strongest reflection in the Activity Program for the period 2005-2009: “Modernization of the country – welfare of people”, in which European integration is assigned as the first of the fundamental priorities of the Executive for this period. On 24 March 2005 the Parliament of the Republic of Moldova adopted the Declaration on political partnership to achieve the objectives of European integration of the country, which expressly stated that further development of Moldova can be achieved only by “consistent and irreversible furtherance of the strategic course towards European integration”. On 12 January 2010, the Republic of Moldova and the European Union have engaged in the process of negotiations of the Association Agreement called to replace the PCA, process which has materialized by signing the Agreement on 27 June 2014.

In respect of the issue alleging violation of national sovereignty, the Court held that the delegation of certain powers to international institutions does not engage any resignation of sovereignty, it is rather an exercise of sovereignty, including the delegation of powers.

The Court found that, by any affiliation to an international treaty, the state submits certain powers, within the limits set by international regulation. This delegation of powers does not imply, by default, a violation of national sovereignty. A contrary reasoning would mean that the sovereignty of the Republic of Moldova is violated due to its membership in the United Nations, Council of Europe or the European Court of Human Rights, systems that imply the state's obligation to comply with the decisions of these international institutions.

The Court held that the Association Agreement does not entail accession of the Republic of Moldova to the European Union, it only represents basis for further cooperation between the Republic of Moldova and the European Union. Moreover, a country's accession to the European Union does not constitute violation of that country’s sovereignty, let alone association that does not represent a form of integration.

In this context the Court held that the bodies founded in accordance with the provisions of the Agreement are not supranational bodies, these entities are created in order to ensure proper implementation of the Agreement. As a matter of fact, establishment of such bodies is not new, similar entities have been created under the Partnership and Cooperation Agreement and their existence and operation has never been disputed as affecting the sovereignty of the Republic of Moldova and the decision-making power of national authorities.

The Association Agreement is an international treaty bearing commitments and benefits freely accepted by the Parliament of the Republic of Moldova as the supreme representative body of the citizens of the Republic of Moldova.

The Association Agreement promotes political association and economic integration between the Republic of Moldova and the European Union, based on common values such as respect and promotion of principles of sovereignty and territorial integrity, inviolability of the borders and of the independence of the Republic of Moldova, democracy, respect for human rights and freedoms. Therefore the purpose and objectives of the Agreement are fully in accordance with Article 1 para. (3) of the Constitution, which stipulates that the Republic of Moldova is a democratic State in which the dignity of people, their rights and freedoms, the free development of human personality, justice and political pluralism represent supreme values that shall be guaranteed.

The Court rejected also the critics of the authors of the complaint arguing that the Agreement proclaims the primacy of European law and its direct applicability, since the Agreement has not assigned any law making powers to European Union institutions and this is the exclusive competence of national authorities of the Republic of Moldova.

In respect of the alleged violation of the constitutional principle of territorial integrity of the Republic of Moldova by neglecting the peculiarities of Transnistrian issue, the Court found that this allegation of the authors of the complaint is false, since art. 8 para.(2) of the Agreement provides clear norms expressing the commitment with a view to find a lasting solution to the Transnistrian problem.

The Court also considered unfounded the criticism of the authors of the complaint on  the negative influence upon the economic interests of the Republic of Moldova following the discriminatory quotas provided for the export and import relations with the European Union.

The Court found that the Association Agreement provides asymmetric bilateral liberalization of trade so that the market of the Republic of Moldova shall not be completely open to the imports of the most sensitive agricultural products coming from the EU. Our country will import from the EU those particular products in a duty free regime only within particular quantitative quotas. This mechanism will mitigate the risk of abundant growth of imports of certain agricultural products, and this fact will help to protect domestic manufacturers.

The Court also noted that the application of quotas on the exports from the Republic of Moldova to the EU cannot in any way limit the access of domestic manufacturers on the EU market. On the contrary, these quotas are higher as compared to the export capacities of the Republic of Moldova on that market, as proven by statistical reports.

Referring to the breach of the principle of neutrality by practical cooperation for conflict prevention and crisis management, in particular with a view to a possible participation of the Republic of Moldova in civilian and military operations of crisis management conducted by the EU, as well within relevant exercises and trainings in each case and following a possible invitation by the EU, the Court held that these provisions do not mean joining any military structure. Moreover, the Republic of Moldova is already a part of global, regional and sub-regional efforts in order to promote international stability and security by cooperating within the UN, OSCE, NATO and other international organizations, as well as its participation in missions under the Common Security and Defense Policy of the EU (CSDP).

In light of the above, the Court held that the provisions of the Association Agreement, and implicitly of the Ratification Law do not violate the sovereignty, independence, neutrality, economic and financial interests of the Republic of Moldova, on the contrary, these provisions are consistent with the goals of the Republic of Moldova to be oriented towards the European area of democratic values, enshrined in the Declaration of Independence and in the Constitution of the Republic of Moldova.

Judgment of the Court

Based on the above mentioned arguments, the Constitutional Court found that within the meaning of the Declaration of Independence of the Republic of Moldova and of Article 1 of the Constitution, orientation towards the European area of democratic values is an element of constitutional identity of the Republic of Moldova. The Court has thus recognized the Association Agreement, and implicitly, the Ratification Law constitutional.

The Judgment of the Court is final, cannot be subjected to any appeal, shall enter into force on the date of adoption and shall be published in the Official Gazette of the Republic of Moldova.