U.no.36/2009

On the basis of Article 110 of the Constitution of the Republic of Macedonia and Article 71 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 3 June 2009, the Constitutional Court of the Republic of Macedonia passed the following

1. NO PROCEDURE IS INITIATED for the appraisal of the constitutionality of Article 24-a paragraph 1 of the Law on Trade (»Official Gazette of the Republic of Macedonia«, nos. 16/2004, 128/2006, 63/2007, 88/2008, and 20/2009).

2. “Makpetrol” Stock company for trade with oil and oil derivatives – Skopje submitted an initiative to the Constitutional Court of the Republic of Macedonia to instigate a procedure for the appraisal of the constitutionality of Article 24-a paragraph 1 of the Law noted in item 1 of the present resolution.

According to the statements of the submitter of the initiative, the contested Article 24-a paragraph 1 violated the fundamental values of the Constitution: the rule of law, the principle of legality, freedom of the market and entrepreneurship defined in Article 55 of the Constitution, as well as the principle of equality defined in Article 9 paragraph 2.

The reason is that the introduction of the prohibition to sell alcoholic beverages in the shops within petrol stations restricted the freedom of the market and entrepreneurship without thereby meeting the constitutional conditions allowing such restriction.

Furthermore, according to the submitter of the initiative, the introduction of the prohibition to sell alcohol in the shops within the petrol stations violated the principle of equality of the subjects on the market. Additionally, the other subjects on the market were allowed to sell alcoholic beverages pursuant to Article 23-a of the Law on Trade (to possess a licence), and it was not allowed to the proposer. The shops within the petrol stations could not obtain a licence and could not sell alcoholic beverages even if they met the legal preconditions for obtaining licences under Article 23-a of the Law on Trade. Thereby, one should also take into consideration the fact that most of the petrol stations in the Republic of Macedonia were in inhabited environments where in addition to the basic product – fuel – citizens also supplied outside the facility with other consumer goods.

According to the submitter of the initiative, based on this situation with the contested provision the legislator clearly and undoubtedly violated directly the fundamental principles defined in the Constitution, as a result of which it proposes that the Constitutional Court annul the contested Article.

3. At its session the Court found that under the contested Article 24-a paragraph 1 of the Law on Trade “the sell of alcoholic and energy beverages in the shops within the petrol stations, in the shops within the green markets and through kiosks in the trade is prohibited”.

4. Pursuant to Article 8 paragraph 1 line 6 of the Constitution of the Republic of Macedonia, freedom of the market and entrepreneurship is a fundamental value of the constitutional order of the Republic of Macedonia.

Under Article 9 paragraph 2 of the Constitution, citizens are equal before the Constitution and laws.

Article 55 paragraph 1 of the Constitution guarantees the freedom of the market and entrepreneurship, and under paragraph 2 the Republic ensures an equal legal position to all subjects in the market and takes measures against monopolistic conduct on the market.

Under paragraph 3 of the said article, the freedom of the market and entrepreneurship may be restricted by law only for the purposes of the defence of the Republic, protection of natural and living environment or public health.

Taking into consideration the said constitutional provisions it arises that the guarantees freedom of the market and entrepreneurship is one of the fundamental values of the constitutional order, whereby the freedom of the market and entrepreneurship may not be understood as a matter with the subjects only, since the state as a guarantor of this freedom has an important role as a regulator of the economic courses in economy.

The principle of equality of the subjects on the market is an equal legal position of the subjects in the performance of their activity. Namely, there should be equality between those subjects performing identical or similar activity. In this context, the state is obliged to take certain measures aimed at preventing the monopolistic position and conduct on the market, thus protecting the rules on the market, competition on the one hand, an on the hand providing equal opportunities for all subjects to perform certain activity.

The Law on Trade governs the conditions and manner of doing trade on domestic and foreign market, the measures for restriction of trade and protective measures.

Trade is carried out as wholesale trade, retail trade, electronic trade, door-to-door trade and providing services in trade (Article 6 paragraph 1).

Wholesale and retail trade is carried out in arranged business premises, storages, warehouses, and business premises (Article 6 paragraph 2).

Under Article 11 of the said law, retail trade in the sense of this law is the sell of goods to final consumers, and under Article 12 paragraph 2 of the Law, retail trade with oil derivatives takes place in petrol stations, under the conditions prescribed by law and other regulation.

Under Article 13 of the Law, there is wholesale and retail trade on the green markets of agricultural products, under the conditions prescribed by law and other regulation (paragraph 1).

In separately organised sections in the green markets there may be wholesale and retail trade of other goods under the conditions prescribed by law and other regulation (paragraph 2).

The goods of paragraph 2 of this article are determined by the Government of the Republic of Macedonia, upon a proposal of the Minister of Economy.

In Article 16 of the Law, “Special ways of doing trade”, trade in kiosks is, inter alia, considered to be a special way of doing trade, whereby the trade with goods in kiosks may be done only in places determined by a decision of the council of the municipality, that is, of the City of Skopje.

Chapter III “Conditions for doing trade” of the Law, that is Article 23-a, stipulates that the retail tradesman selling alcoholic beverages is required to possess a licence for the sale of alcoholic beverages which is valid for two years.

Under paragraph 4 of this article, the tradesman does the sale of alcoholic beverages of paragraph 1 of this article in a special selling facility for the sale of alcoholic beverages, and as an exception from paragraph 4 the retail tradesman may sell alcoholic beverages in a separated section of the selling facility which is appropriately secured.

Under Article 24 of the Law, the retail tradesman may not sell alcoholic beverages and cigarettes to persons under 18 years of age.

The contested Article 24-a paragraph 1 of the Law envisages that the sale of alcoholic and energy beverages in the shops within the petrol stations, in the shops within the green markets and through the kiosks in the trade is prohibited.

Under paragraph 2 of Article 24-a, the sale of alcoholic and energy beverages is prohibited from 19:00 h. to 06:00 h. the following day.

From the said constitutional provisions, the provisions of the Law on Trade regulating the issue of doing retail trade of oil derivatives, trade in green markets and the special way of doing trade in kiosks, as well as the content of the contested Article 24-a paragraph 1, the Court considers that the statements in the initiative are unfounded. Namely, the reason is that it is the legitimate right of the legislator to regulate the relations in certain fields of social life, and in that sense to regulate the regime of sale of alcoholic and energy beverages, as a special type of goods in a manner that will prohibit the sale of alcoholic and energy drinks to persons under 18 years of age, in certain selling facilities and at a certain period during the day, with a view to protecting public health.

Accordingly, the Court assessed that the established special regime of sale that is prohibition for sale of alcoholic and energy beverages in the said selling facilities is in accordance with the constitutional provision that for the purposes of protecting public health the Republic may by law restrict the freedom of the market and entrepreneurship, as a result of which it did not raise the question of agreement of the contested Article 24-a paragraph 1 of the Law on Trade with Article 8 paragraph 1 line 6, Article 9 paragraph 2 and Article 55 of the Constitution of the Republic of Macedonia.

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

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