Decision U.no.179/2008

U.no.179/2008

On the basis of Articles 110 and 112 of the Constitution of the Republic of Macedonia and Article 70 of the Book of Procedures of the Constitutional Court of the Republic of Macedonia (»Official Gazette of the Republic of Macedonia«, no.70/1992), at its session held on 8 April 2009, the Constitutional Court of the Republic of Macedonia took the following

DECISION

1. Article 24-a paragraph 3 and Article 57-a of the Law on Trade (“Official Gazette of the Republic of Macedonia”, nos.16/2004, 128/2006, 63/2007 and 88/2008) ARE REPEALED.

2. This decision shall generate legal effects from the date of its publication in the “Official Gazette of the Republic of Macedonia”.

3. Upon the initiatives submitted by Filip Stamenov from Skopje, the Constitutional Court of the Republic of Macedonia with its Resolution U.no.179/2008 of 11 February 2009 instigated proceedings for appraising the constitutionality of the said provisions in the Law noted in item 1 of the present Decision, as there was a well-founded question raised regarding their agreement with the Constitution.

4. At its session the Court found that under Article 24-a paragraph 3 of the Law on Trade, purchase of alcoholic beverages is prohibited between 19:00 and 06:00 h. the following day.

Under Article 57-a paragraph 1 of the same Law, a fine in the amount of 200 euros in denar countervalue shall be pronounced against the natural person purchasing alcoholic beverages between 19:00 and 06:00 h. the following day (Article 24-a paragraph 3). Pursuant to paragraph 2 of the same article, the State Market Inspector may pronounce a mandatory fine in the amount of 50 euros in denar countervalue for the violation of paragraph 1 of this article. Under paragraph 3 of this article, a fine in the amount of 200 euros in denar countervalue shall be pronounced against a parent or guardian of a child, that is, ward, if his/her child, that is protégé, under 18 years of age purchases alcoholic beverages (Article 24 paragraph 3). Under paragraph 4 of the same article, the competent court conducts the minor offence proceedings and pronounces the minor offence sanction for the violations of this article.

5. Under Article 8 paragraph 1 lines 1 and 3 of the Constitution, the fundamental values of the constitutional order of the Republic of Macedonia are the basic freedoms and rights of the individual and citizen, recognized in international law and set down in the Constitution, and the rule of law.

Pursuant to Article 11 paragraph 1 of the Constitution, the physical and moral integrity of the individual is inviolable.

Under Article 25 of the Constitution, each citizen is guaranteed the respect and protection of the privacy of his/her personal and family life and of his/her dignity and repute.

Pursuant to Article 51 of the Constitution, in the Republic of Macedonia laws shall be in accordance with the Constitution, and all other regulations in accordance with the Constitution and laws.

The Law on Trade governs the conditions and manner of doing trade on domestic and foreign markets, measures for restriction of trade and protective measures (Article 1).

Pursuant to Article 2 paragraph 1 of the same Law, trade, in the sense of this Law, is purchase and sale of goods, as well as doing trade services.

The provisions of the Law on Changing and Supplementing the Law on Trade (“Official Gazette of the Republic of Macedonia”, no.88/2008) regulate the sale of alcoholic beverages, in a manner that the Law is supplemented with a new Article 24-a which prohibits the sale of alcoholic beverages in shops within petrol stations, shops within green markets and through kiosks in trade; prohibits the sale of alcoholic beverages between 19:00 and 06:00 h. the following day, and prohibits the purchase of alcoholic beverages between 19:00 and 06:00 h. the following day. Furthermore, the new supplemented Article 57-a of the Law prescribes that the natural person purchasing alcoholic beverages between 19:00 and 06:00 h. the following day shall be pronounced a fine for a minor offence, that a mandatory penalty may be pronounced for this minor offence, and that a corresponding fine for a minor offence shall be pronounced against a parent or guardian of a child, that is a ward if his/her child, that is, protégé, under 18 years of age purchases alcoholic beverages. The competent court conducts the minor offence proceedings and pronounces the minor offence sanction for the violations of this Article.

With respect to the initiated legal question in the initiative that only the sale of alcoholic beverages contrary to the prescribed regime, may be a violation for which a corresponding fine is pronounced, and that the purchase of alcoholic beverages under the same conditions could not be a violation, that is the violation could not be made by both the salesman and the purchaser at the same time, the Court took into consideration the following:

It is the legitimate right of the legislator to regulate the relations in certain spheres of social life, and in that sense to regulate also the regime of sale of alcoholic beverages, in a manner that will prohibit the sale of alcoholic beverages in certain sale facilities and at certain period in the day, which, according to the Government of the Republic of Macedonia, as the proposer of the Law on Trade, is a measure that the state takes in order to control and protect against the excessive use of alcohol in the evening hours, especially by young persons. Also, it is the legitimate right of the state, in the function of operationalisation of this measure, to determine sanctions for the salesmen – legal and natural persons – who will violate the prescribed regime of sale of alcoholic beverages and will enable realisation of the prohibited turnover.

However, in the opinion of the Court, the prescription of sanctions for natural persons – purchasers of alcoholic beverages in the said period exceeds the sense and justification of a measure that is necessary for the purposes of preventing socially detrimental actions, as a basis and limit for the determination of the violation and the minor offence sanction. Namely, the tradesman, that is, salesman is obliged to adhere to the prescribed regime of sale of alcoholic beverages, in which sense the legislator prescribed an obligation for the retailer who sells alcoholic beverages to possess a license for the sale of alcoholic beverages, prescribed the conditions that the tradesman should meet in order to obtain such license, and the procedure for obtaining the same. That means that the legislator has provided normative preconditions for the tradesmen selling alcoholic beverages to adhere to the prescribed regime for sale, otherwise their license will be taken away and thereby their activity prohibited.

The implementation of the prescribed regime for the sale of alcoholic beverages automatically means impossibility for the sale of these goods to natural persons-purchasers between 19:00 and 06:00 h. the following day, under the threat of sanction for the salesman if he/she violates this regime. In a situation when this type of goods is not available, it is quite irrelevant whether the natural person is familiar with the legal regulation prohibiting the sale of alcohol in the said period. This for a reason that it concerns retail trade in selling facilities where the goods for sale are publicly exhibited and immediately available to the consumer, in which sense it logically arises that everything that is publicly exhibited and available in the selling facility means that is allowed for the purchaser to buy it, from where it derives that if certain goods are sold to him/her and he/she pays the price for them, what is legitimate is his/her expectation that the turnover is allowed and that his/her action of purchase of the goods does not have the character of an unlawful conduct as a participant in the established market relations. Hence, arises a well-founded ground that only the salesman may be held responsible if he/she offers for sale and sells goods the turnover of which is prohibited and the prescription of a sanction for his/her conduct is the only justified and necessary measure with which the wished aim may be accomplished – control of the sale of alcohol as a legitimate aim.

Accordingly, the punishment of natural persons – purchasers of this kind of goods may not be accepted as a legally justified rational measure with which what is accomplished is a balance in the intention of the state to control the sale of alcohol, as a result of which according to the Court this measure is not in accordance with the rule of law, as a fundamental value of the constitutional order of the Republic of Macedoniam and means unfounded interference in and violation of the dignity and repute of the citizen and his/her moral integrity.

Taking as a basis what has been noted above, the Court assessed that Article 24-a paragraph 3 and Article 57-a of the Law on Trade are not in accordance with Article 8 paragraph 1 line 3 and Article 11 paragraph 1 and Article 25 of the Constitution.

6. On the basis of the aforementioned, the Court decided as in item 1 of the present Decision.

7. The Court took the present decision with a majority of the votes, in the following composition: Dr Trendafil Ivanovski, President of the Court, and the judges: Dr Natasha Gaber-Damjanovska, Mr Ismail Darlishta, Mrs Liljana Ingilizova-Ristova, Mrs Vera Markova, Mr Branko Naumoski, Mr Igor Spirovski, Dr Gzime Starova, and Dr Zoran Sulejmanov.

Leave a Reply