Finding of unconstitutionality on the Medicine Agency fees charged for the acquisition procedure

On 6 September 2013 the Constitutional Court ruled on the constitutionality of section 18 of the Regulation on the purchase of medicines and other health products for health system needs, approved by Government Decision No. 568 of 10 September 2009 (Complaint No. 24g/2013).

Circumstances of the case

At the origin of the case was the exception of unconstitutionality of the Supreme Court of Justice, lodged at the Constitutional Court on 4 June 2013, on constitutional review of some legal provisions that establish the fee which the Medicine and Medical Devices Agency receives from the winner bidder, for the development of the procedure for acquisition and coordination of the purchase contract.

The author of the complaint alleged, particularly, that the provisions of section 18 of the Regulation on the purchase of medicines and other health products for the needs of the health system are contrary to the manner of establishing the fees by the representative bodies and contrary to the Articles 6, 60, 96, 102 and 132 of the Constitution.

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

Mr Alexandru TĂNASE, President,

Mr Aurel BĂIEȘU,

Mr Igor DOLEA,

Mr Victor POPA,

Mr Petru RĂILEAN, judges

Conclusions of the Court

Hearing the reasoning of the parties and examining the case file, the Court held that according to Article 102 para. (2) of the Constitution, the Government shall adopt decisions to carry out the laws.

According with the constitutional provision invoked, the Court noted that the regulatory documents obeying the law must be in accordance with the latter, in the sense of not containing contrary provisions or having as object of regulation the primary relationships which are of the law jurisdiction and will be issued within the competence of the State’s body concerned.

The legal document drawn up on the basis of an upper level act can not exceed the limits of competence imposed by that act and can not contravene the purpose, principles and provisions of it.

Therefore, the Court held that the tax collected in the amount of 0.2% of the contract value from the winner bidder by the Medicine Agency for the acquisition and coordination procedure of the purchase contract, under section 18 of the Regulation on the purchase of medicines and other medical products for the healthcare system needs, is not covered by the Public Procurement Act and the Government has exceeded its powers under the constitutional rules. According to the preamble of the Decision No. 568 of 10 September 2009, it was approved by the Government purposely to carry into effect the law mentioned above. The only fee imposed by the Public Procurement Act which the contracting authority is entitled to take charge refers only to tender documents and includes just the costs for printing and delivering them to the economic operator.

The Court found that section 18 of the Regulation contains legal primary rules that can be established only by law adopted by the Parliament.

The Court previously ruled on analogue situations, stressing that the Constitution does not empower the Government with the right to establish the primary rules in areas which require legislative regulation, Government decisions must be subsequent to laws previously passed by Parliament.

Furthermore, the Court ruled in its case (Judgment No. 14 of 18 March 1999 on the interpretation of provisions of article 94 par. (2) and Article 102 para. (3) of the Constitution) that Government acts develop and carry out the provisions of law. Technical side of the adoption of Executive’s decisions is established by legal rules. They are issued (adopted) based and in view of the enforcement of the law for the birth, modification or termination of legal relations.

Judgment of the Court

Based on the above arguments, the Constitutional Court upheld the objection of unconstitutionality made ​​by the Supreme Court of Justice and declared unconstitutional the provisions of section 18 of the Regulation on the purchase of medicines and other health products for the needs of the health system, approved by the Government Decision No. 568 on 10 September 2009.

The Judgment of the Constitutional Court is final, cannot be subject of any appeal, shall enter into force on the date of passing, and shall be published in the Official Journal of the Republic of Moldova.