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Procedure for concluding an international treaty regarding a state financial loan
On 7 may 2020, the Constitutional Court delivered Judgement no. 12 on the constitutional review of the Agreement between the Government of the Republic of Moldova and the Government of the Russian Federation regarding the granting of a state financial loan to the Government of the Republic of Moldova, Government Decisions no. 169 of 13 March 2020 and no. 252 of 21 April 2020 and Law no. 57 of 23 April 2020 (Judgement no. 12 of 07.05.2020).
The Court found that the procedure for concluding the impugned Agreement was affected by the following vices: (i) the Government had not appointed or empowered any official delegation to negotiate the draft Accord; (ii) the negotiation was initiated in the absence of the opinion of the Parliament's Foreign Policy and European Integration Committee and of the opinion of the Ministry of Justice on the compatibility of the draft Agreement with the provisions of the Constitution of the Republic of Moldova and of the national law; (iii) the signing of the Agreement was approved in the absence of the opinion of the Parliament's Committee on Foreign Policy and European Integration; and (iv) the Parliament ratified the Agreement in the absence of a decision by the Constitutional Court on its constitutionality.
In order to maintain the balance of power in the State and to respect the rule of law principle, the Court considered that the Parliament should have exercised effective control over the negotiation and signing of the contested Agreement, provided for in Article 66 i) of the Constitution. As this condition was not observed, the Court noted that the impugned Agreement was concluded in breach of the provisions of Articles 1 para. (3) and 66 i) of the Constitution.
At the same time, the Court emphasized that as the power to legislate of the Parliament and the power to govern of the Government is exercised in the interest of the people – these being delegated by election and swearing into office – the margin of discretion of these authorities is not absolute. Thus, the Court noted that some provisions of the Agreement are unclear and unforeseeable, they generate legal uncertainty and are contrary to the national interests of the Republic of Moldova in the field of economic activity, guaranteed by Articles 1 para. (3), 9, 126 para. (2) b) and c) and 129 of the Constitution.
The Court declared unconstitutional the acts that were subject to this constitutional review.