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01.11
2016

Transmitting free of charge water supply installations from private individuals to local authorities – unconstitutional

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On 1 November 2016, the Constitutional Court of Moldova delivered its judgment on the exception of unconstitutionality of Article 19.4 of the Law No.303 of 13 December 2013 on the public service of water supply and sewerage.

Circumstances of the case

The case originated in the exception of unconstitutionality of Article 19.4 of the Law No.303 of 13 December 2013 on the public service of water supply and sewerage, raised by the Judge Vitalie Movilă of the Cahul Court of Appeal, within the case No.05-2a-1487-25112015, pending before the Cahul Court of Appeal.

Pursuant to Article 19.4 of the Law on the public service of water supply and sewerage, upon finalising the construction work, the installations and the public networks of water supply and sewerage, located on public land, built by individuals and/or by legal entities, as well as those built prior to the entry into force of this law, regardless of the funding source, are transmitted free of charge to the local public administration authority or directly to the operator, in accordance with the decision of the local council.

The author of the exception of unconstitutionality claimed, essentially, that Article 19.4 of the Law No.303 of 13 December 2013 on the public service of water supply and sewerage, is contrary to Articles 46.1, 46.2, 46.3 and 54 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 Veaceslav ZAPOROJAN, judges

Conclusions of the Court

Hearing the reasoning of the parties and examining the casefiles, the Court held that Article 9 of the Constitution enshrines the existence of private property in terms of material and intellectual goods, and pursuant to Article 46 of the Constitution, property rights are guaranteed and no one may be expropriated, except for a matter of public utility, as established by the law, with a fair and previously determined compensation.

In its caselaw the Court held that „goods,” as provided by Article 46 of the Constitution and Article 1 of Protocol No.1 of the ECHR, may be recognized as any element of the real assets of the person that has economic value.

At the same time, the Court noted under Article 127.4 of the Constitution any wealth of the underground, including water, shall constitute the exclusive objects of public property.

In this context, the Court underscored that water is assigned to the category of State natural heritage, being of major importance for society. The protection, use and sustainable development of water resources are actions of general interest.

Pursuant to Article 19.4 of the Law on the public service of water supply and sewerage, upon finalising the construction work, the installations and the public networks of water supply and sewerage, located on public land, built by individuals and/or by legal entities, as well as those built prior to the entry into force of this law, regardless of the funding source, are transmitted free of charge to the local public administration authority or directly to the operator, in accordance with the decision of the local council.

At the same time, examining the exception of unconstitutionality, the Court noted that a similar provision is also contained in Article 5.41 of the Law No.272-XIV of 10 February 1999 on drinking water. In these circumstances, although when raising the exception the author of the complaint did not challenge the constitutionality of Article 5.41 of the Law on drinking water, the Court found that it is in connection with the challenged provisions.

The Court held that according to the mentioned legal provisions, the installations and the public networks of water supply and sewerage are transmitted free of charge to the local public administration authority or directly to the operator, including the case when they were built with individuals’ and/or legal entities’ own investments.

The Court noted that while the person has obtained the necessary legal authorisation to carry out construction work and invested its own resources, these are subsequently transmitted free of charge.

The Court held that given the fact that water is assigned to the category of State heritage and the challenged provisions relate to installations and public networks of water supply and sewerage, located on public land, the legislator is entitled to regulate their use. At the same time, the Court stressed that any regulation cannot affect, in substance, the person’s rights to dispose of his goods.

The Court found that the provision of Article 19.4 represents in fact an expropriation without prior and fair compensation of the owner or holder of other real rights over the water supply networks.

The Court held that expropriation is one of the most severe measures that can be taken against the right of private property, since it is not a mere limitation of the right, but it leads to its loss. In this regard, according to the Law of expropriation on groundof public interest, the expropriation shall be preceded by a compensation to the holder of the goods.

Also, with regards to the compensation paid to the holder of the property right for deprivation of his right, the ECtHR held that in the absence of a compensation remedy, Article 1 of Protocol No.1 would ensure an illusory and ineffective protection of the property right, in full contradiction with the Convention.

In view of the above, the Court held that the provisions contained in Article 19.4 of the Law on public service of water supply and sewerage and Article 5.41 of the Law on drinking water, in regards to free of charge transmission of installations and public networks of water supply and sewerage to the local public administration authority or directly to the operator, are in breach of Article 46 of the Constitution.

Also, the Court will issue an Address to the Parliament in view of regulating the requirements under which the person shall be compensated and the legal status of the goods transferred to the local public authority.

Judgment of the Court

Stemming from the above reasoning, the Constitutional Court:

- partially admitted the exception of unconstitutionality;

- declared unconstitutional the phrase „free of charge” of Article 19.4 of the Law No.303 of 13 December 2013 on the public service of water supply and sewerage and Article 5.41 of the Law No.272-XIV of 10 February 1999 on drinking water.

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 Moldova.

 

 

This press-release is also available in its original version, in Romanian language.

 
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