U.no.39/2006

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 6 June 2007, the Constitutional Court of the Republic of Macedonia made the following

DECISION

1. Article 5-a paragraph 1 in the part: »in the facilities that are located less than 50 m off the pre-school and school educational institutions« of the Law on the Protection against Smoking (»Official Gazette of the Republic of Macedonia«, nos.36/1995, 70/2003, 29/2004, and 37/2005) IS REPEALED.

2. This Decision generates legal effects from the date of its publication in the »Official Gazette of the Republic of Macedonia«.

3. The Constitutional Court of the Republic of Macedonia with its Resolution U.no.39/2006 of 18 April 2007, upon the initiative submitted by T.P. “Zani”, T.P. “Andromedi”, T.P. “Eva Trade” and “Fine” LTD, all from Veles, instigated proceedings for the appraisal of the constitutionality of the Article of the Law noted in item 1 of the present Decision, since a well-founded question was raised as to its concordance with Article 55 of the Constitution.

4. At its session the Court found that under Article 5-a paragraph 1 of the Law on the Protection against Smoking, the selling of cigarettes in the facilities that are less than 50 metres off the pre-school and school educational institutions and in the facilities that are located in sports-recreational areas, is prohibited.

Paragraph 2 of Article 5-a of the same Law envisages that the selling of tobacco products by piece (by cigarette), selling through machines, places for self-service, as well as selling by order, is prohibited. 5. Article 42 of the Constitution of the Republic of Macedonia, which is included in Chapter II titled “Basic freedoms and rights of the individual and citizen”, part 2 subtitled “Economic, social and cultural rights”, defines that the Republic particularly protects motherhood, children and minors.
Pursuant to Article 43 of the Constitution, everyone has the right to a healthy environment to live in.

Everyone is obliged to promote and protect the environment. The Republic provides conditions for the exercise of the right of citizens to a healthy environment.

Pursuant to Article 55 of the Constitution, the freedom of the market and entrepreneurship is guaranteed. The Republic ensures an equal legal position to all parties on the market. The Republic takes measures against the monopolistic position and monopolistic conduct on the market. The freedom of the market and entrepreneurship may be restricted by law only for reasons of the defence of the Republic, protection of nature, the environment, or public health.

Article 1 of the Law on the Protection against Smoking envisages that this Law governs the protection against detrimental effects from smoking tobacco and other tobacco products on citizens, protection of a healthy environment, prohibition of smoking in certain public rooms and prohibition to advertise cigarettes.

Under Article 5 of the Law, the selling of cigarettes and tobacco to persons younger than 18 years of age is prohibited.

The contested Article 5-a paragraph 1 of the Law regulates the prohibition to sell cigarettes in the facilities that are less than 50 metres off pre-school and school educational institutions and in the facilities that are located in sports-recreational areas.

It is a fact that the prohibition to sell cigarettes in the facilities stipulated in the contested legal provision is a restriction, that is, obstruction of the right to freedom of the market and entrepreneurship. It is also a fact that the purpose of that restriction is to protect the health of minors as a public interest and it is a legitimate purpose.

In the field of balancing between individual and public interest, one should answer the question whether the pronouncement of such measure is necessary to such an extent, for the purposes of protecting people’s health, that is, minors’ health, which would justify the restriction of the market, that is, the right to freedom of the market and entrepreneurship. According to the Court, the pronouncement of such measure as envisaged now in the disputed legal norm, is neither necessary nor really serves to achieve the legitimate goal of protecting children, for reason that from the whole Law on the Protection against Smoking it derives that the legislator has already achieved its constitutional obligation to protect the health of the young population (children) with the already pronounced general measure in Article 5 of the Law prohibiting the selling of cigarettes and tobacco to persons younger than 18 years of age in the retail trade. Thereby, the effect and the aim of the Law has been achieved with the general prohibition pronounced in Article 5 of the Law, as a result of which the additional restriction of the selling of cigarettes as contained in the disputed legal provision is excessive and unnecessary and appears exclusively as an economic restriction and obstruction of the right to freedom of the market and entrepreneurship. Hence, the restriction in the contested provision may not pass the test of proportionality with the legitimate goal, whereby no fair balance between the individual and public interests has been achieved.

According to the Court, the challenged provision is not clear for a reason that from it one cannot establish the manner in which the distance of less than 50 metres is calculated. Is the calculation of the distance made from the facility or from the fence of the facility, that is, which construction notion encompasses a pre-school or school educational institution? Then, it is absurd to adopt as legal presupposition that pre-school age children are population that purchases cigarettes while being in the kindergarten. Thereby, the Court does not involve in the analysis of the question regarding the efficacy of the 50-metre distance, which would only reinforce the knowledge that such measure does not achieve anything but a unilateral restriction of the economic activity.

In favour of the need to balance the interests is also the fact that in the part of the transitional provisions of the Law, the legislator took account of and left time for the adaptation of the new regime so that the application of the new regime was delayed for June 2005, thereby balancing the common interests – the protection of the people and public health and the right to freedom of market and entrepreneurship.

According to the Court, on the basis of what has been noted there is no justification of the measure contained in the contested legal provision in conditions when the legislator has at its disposal other efficient measures, such as a general prohibition to sell cigarettes and tobacco to people younger than 18 years of age, envisaged in the Law, as a result of which the contested part of the provision is not in harmony with one of the basic rights from the field of economic relations guaranteed in Article 55 of the Constitution.

6. On the basis of what has been stated, the Court decided as in item 1 of the present Decision.

7. The Court passed the present decision with the majority of the votes in the following composition: the President of the Court Mr Mahmut Jusufi, and the judges: Dr Trendafil Ivanovski, Mrs Liljana Ingilizova-Ristova, Mrs Mirjana Lazarova Trajkovska, Mrs Vera Markova, Mr Branko Naumoski, Dr Bajram Polozani, Mr Igor Spirovski, and Dr Zoran Sulejmanov.