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Dismissal of the Director General of the Board of National Energy Regulatory Agency– unconstitutional
On 20 September 2013 the Constitutional Court delivered its judgment on the constitutionality of the Parliament’s Decisions on the dismissal and appointment of the Director General of the Board of National Energy Regulatory Agency (Complaint No. 34a/2013).
Circumstances of the case
At the origin of the case lies the complaint submitted to the Constitutional Court on 19 July 2013, under Articles 135 para. (1), lett. a) of the Constitution, 25 lett. (g) of the Law on the Constitutional Court and Article 38, para. (1), lett. (g) of the Constitutional Jurisdiction Code, by the MP’s, Messrs Mihai Ghimpu, Valeriu Munteanu, Gheorghe Brega and Mrs. Corina Fusu on the constitutional review of Parliament’s Decision No. 180 of 12 July 2013 concerning the dismissal from office of the Director General of the Board of National Energy Regulatory Agency.
Furthermore, at the public meeting of the Court, the authors requested, also, the constitutional review of the Parliament Decision No. 181 of 12 July 2013 on the appointment of the Director General of the Board of National Energy Regulatory Agency.
The authors of the complaint alleged that, by adopting respective Decisions, have been violated the provisions of the Article 66 lett. (j) 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 PANŢÎRU,
Mr Victor POPA,
Mr Petru RĂILEAN, judges
Conclusions of the Court
Hearing the reasoning of the parties and examining the case file, the Court reiterated that Article 135 para. (1), lett. (a) of the Constitution empowers the court of constitutional jurisdiction to review the constitutionality of all acts adopted by the Parliament, without making distinction between normative and individual acts.
The Court also recalls that by the Judgment No. 29 of 21 December 2010 expressly stated that "acts of individual character, issued by the Parliament, the President of the Republic of Moldova and the Government, referring to officials exponents of public interest, elected or appointed for term of office, namely [...] the Director General, the director, the deputy general manager, the deputy manager of the National Energy Regulatory Agency [...] - may be the object of constitutional review under the form and procedure of adoption."
The Court found that on the basis of the rule of law state, enshrined in art. 1 para. (3) of the Constitution, is the principle of legality. No law or other legal act contrary to the Constitution has legal force (Article 7 of the Constitution).
In this context, the Court noticed that legality, as a basic principle of the rule of law state, requires compliance with the rule or the legal act establishing higher standards of procedural conditions regarding the enactment of legal norms. Legal behavior aims at both the legislative work of the Parliament and the establishment of internal rules of organization and operation that have a direct connection with the enactment process.
According to its previous jurisprudence (cases Muruianu Urechean Gurin, etc.), the Court examines the constitutionality of the challenged individual acts, regarding the dismissal from office of a member and vice-president of the Court of Accounts, in terms of the competent authority to adopt the act in question and the adoption procedure.
The Court held that Article 66 lett. (j) gives to Parliament the ability to elect and to appoint state officials in cases provided by law.
The Court held that the position of the Director General of the Board of National Energy Regulatory Agency is a public office that represents a public concern, being a state official.
The Court noted that on 12 July 2013, at the initiative of the President of the Parliament, under Article 22 of the Law on the status of civil servants with public dignity and Article 42 of the Law on Energy, Parliament adopted the Decision No. 180, whereby Mr. Victor Parlicov was released from office as Director General of the Board of National Energy Regulatory Agency.
Article 22 para. (3) of the Law on the status of civil servants with public dignity lays down that, in case of the appointed dignitary, his mandate will end before the term by revocation or, where appropriate, by dismissal, under the administrative act of the authority which appointed him/her. But according to para. (4) of the same Article, the provisions of the para. (3) do not apply to officials wherefore a special law regulating their activity provides another procedure of early termination of the mandate.
Therefore, the Court held that the provisions of the Article 22 of the Law on the status of civil servants with public dignity are not relevant for the dismissal of the Director General of the Board of National Energy Regulatory Agency, since the activity, organization and functioning of the National Energy Regulatory Agency are established by a special law which requires another procedure for the termination of the mandate before the deadline.
The Court noted that under Article 42 para. (6) of the Law on Energy, the office of the Director of the Board is terminated by resignation or dismissal. Director may be dismissed by Parliament in case of: loss of citizenship of the Republic of Moldova; the inability to exercise duties due to health reasons; election to another office; conviction for offenses committed intentionally and/or sentenced to imprisonment by final judgment of the court; issuing an irrevocable act that established the issuance/enactment by him/her of an administrative act or signing a legal act with violation of the legal provisions on conflict of interest; being in incompatibility, which was established by the final act of finding.
This rigidity results from ensuring the independence of the person towards those who voted for his/hers election or appointment.
Moreover, the Court noted that relevant international instruments contain a number of stipulations in assuring the independence of the regulator of energy sector.
In this context, the Court held that Republic of Moldova joined the Energy Community as a full member in 2010, the Energy Community Treaty entered into force for Moldova on 1 May 2010. From that moment it became mandatory to respect international legal norms adopted under the Treaty. These include EU Directives that establish the governance structure for electric energy and natural gas domains.
Therefore, both the Directive 2003/54/EC concerning common rules for the internal electricity market and the Directive 2003/55/EC concerning common rules for the internal market for the natural gas sector, mentioned the need for an independent regulatory authority in the field.
In Directive 2009/72/EC and Directive 2009/73/EC is pointed out that the regulators of energy and natural gas shall be fully independent of any public or private interests.
Under Community legislation the independence of the respective regulator authority has become a compulsory legal requirement in the EU.
In this context, the Court held that the act of release from office of the Director General of the Board of the National Energy Regulatory Agency has resulted in termination of the tenure of the Director of the Board. In order to guarantee the independence of the person exercising a public dignity, constitutional and legal rules require that the exercise of the term of office is respected. Ordinarily, dismissal requires a more complicated procedure than the appointment or at least an equal one. Dismissal procedure is specifically prescribed by law for the directors of the Board of the National Energy Regulatory Agency.
The Court held that the dismissal of the Director General of the National Energy Regulatory Agency may be ruled only by the appointing authority, namely the Parliament, and the cases and conditions of the dismissal are provided comprehensively by the Law on Energy. Therefore, the power given to the Parliament by law is not a discretionary one.
The Court found that the dismissal of the Director General of the Board of the National Energy Regulatory Agency was held without following constitutional norms, being taken at the proposal of the President of Parliament, but not according to the legal requirements.
Judgment of the Court
Starting from the reasoning invoked above, the Constitutional Court upheld the complaint of a group of MPs and declared unconstitutional the Parliament Decision No. 180 of 12 July 2013 on the dismissal of the Director General of the Board of National Energy Regulatory Agency and the Parliament Decision No. 181 of 12 July 2013 on the appointment of the Director General of the Board of National Energy Regulatory Agency.
The Judgment of the Constitutional Court is final, cannot be appealed, shall enter into force on the date of passing, and shall be published in the Official Journal of the Republic of Moldova.