On the basis of Article 25 paragraph 6 of the Rules of Procedure of the Constitutional Court of the Republic of Macedonia (“Official Gazette of the Republic of Macedonia”, no.70/1992) upon my voting against item 1 a) of the Decision, I separate and explain in writing my
S E P A R A T E O P I N I O N
of the Decision U.no.134/2008 from 17 December 2008, in the part of item 1 a), which repeals Article 29 of the Rulebook for issuing a document cash register for cancelled transaction and for the functional and technical characteristics that fiscal devices and the integral automatic management system should possess (“Official Gazette of the Republic of Macedonia”, no.55/2001) adopted by the Minister of Finance of the Republic of Macedonia.
Acting upon the initiative by Dragan Koroveshovski, a lawyer from Skopje, with the noted decision in the part a b) the Constitutional Court of the Republic of Macedonia repealed a number of provisions from the Rulebook for changing and supplementing the Rulebook, and I also voted for them to be repealed, as the Court assessed that they are not in conformity with the provisions of Article 8 paragraph 1 lines 3 and 7 and Article 55 of the Constitution, and with the provisions of the Law on Registration of Cash Payments. However, in view of the repeal of the provision in Article 29 of the Integral Text of the Rulebook I expressed my disagreement, I voted against and I submit my separate opinion, according to which I consider that the challenged provision is in accordance with the Constitution of the Republic of Macedonia and with the Law on Registration of Cash Payments, and the same should not have been repealed, that is, the Constitutional Court should not have made such a decision on this part.
First of all, the provision in Article 29 of the Rulebook was not the subject of request with the initiative, although with its Resolution from 29 October 2008 to initiate a procedure, the Court extended, in my opinion, without any justified reason, the appraisal of the constitutionality in this case to this provision as well. I believe that the starting point in the appraisal of the constitutionality and legality of this provision must have been the character and content of the provision in the entirety of the functional system of registration of cash payments.
Under Article 19 of the Law, the Minister of Finance prescribes the functional and technical characteristics that the fiscal devices and the integral automatic management system should possess, the procedure and the documentation for their approval to be used, the elements on the fiscal receipt, the manner of checking and controlling fiscal devices and the rules for the technical maintenance and servicing of the same. Within the legal frameworks set down, Article 29 of the Rulebook defines the fiscal logo as an element of the fiscal receipt. Namely, it describes that it is an identification designation on each fiscal receipt, that it is formed with the marks of a sun and the messages “BUY MACEDONIAN PRODUCTS”, “FOR OUR WELL-BEING”, “MADE IN MACEDONIA”, and provides for the dimensions of the logo.
Taking as a starting point the descriptive character of the content of this provision, which in no case creates legal obligation for the purchaser, that is, for the user of the service, and that there is no sanction for the failure to adhere to the message, that it is only a message that may, but not necessarily impact the conduct of the consumer, that the content of the logo neither keeps record nor registers by itself, furthermore that the logo contains propaganda content which is earmarked for the free will of the purchaser of goods or user of services and has no legal consequences, that is the logo by itself does not mean establishment of a legal relation and similar attributes, it is undisputed that such content does not violate the constitutional principles of the rule of law, legal protection of property, freedom of the market and equal legal position of the subjects on the market.
Given the aforementioned character of the provision, which the majority of the judges to the Constitutional Court did not respect, in my opinion may have far-reaching detrimental consequences, distorting the propaganda message and its intention in affirming the values, as a result of which my conviction is that the provision in Article 29 of the Rulebook should not have been repealed as it is in harmony with the aforementioned provisions of the Constitution and with the Law on Registration of Cash Payments.
17 December 2008
S k o p j e
Dr Trendafil Ivanovski
PRESIDENT
of the Constitutional Court of the Republic of Macedonia
On the basis of Article 25 paragraph 6 of the Rules of Procedure of the Constitutional Court of the Republic of Macedonia (“Official Gazette of the Republic of Macedonia”, no.70/1992) upon my voting for the Decision U.no.134/2008 of 17 December 2008, I separate and explain in writing my
S E P A R A T E O P I N I O N
In line with the noted provision from the Rules of Procedure of the Constitutional Court, a judge may separate his/her opinion if he/she has voted against the decision, but also if he/she has voted for the decision, but considers that the same, as in the present case, should be based on different grounds.
I believe that in this case the Court should have repealed the challenged provisions from the rulebooks, not only because of their disagreement with the Constitution and the laws noted in the Decision, but also due to their disagreement with provisions from the Stabilisation and Association Agreement between the Republic of Macedonia and the European Communities and their member states, ratified by Law (“Official Gazette of RM”, no.28/2001 from 13 April 2001), as an integral part of the internal legal order of the Republic of Macedonia. Such a request was also made with the initiative to instigate the proceedings.
While the judges to the Constitutional Court find it undisputed that, pursuant to Article 118 of the Constitution of the Republic of Macedonia, international agreements ratified in accordance with the Constitution are an integral part of the internal legal order and may not be changed by law, the majority of the judges consider that the Constitutional Court is not competent to decide on the harmony of the sublegal regulations with the ratified international agreements, as such competence is not envisaged in Article 110 of the Constitution. This stance has been present for a longer period of time in the case law of the Court and was repeated in this case as well in the resolution for the initiation of proceedings. Contrarily, I believe that international agreements ratified by law are an integral part of the internal legal order with the status of a source of the law with full effect, which implies that they, on the one hand, should be subject to assessment from the aspect of their harmony with the Constitution and, on the other hand, to be a criterion for the assessment of the legality of the sublegal regulations. This understanding of the competence of the Constitutional Court, which I have explained on a number of occasions, is based on the status of the ratified international agreements in the hierarchy of the legal acts in the constitutional order and the constitutional requirement for its harmonisation through respecting the principles of constitutionality and legality. The protection of these principles is the essential function of the Constitutional Court in line with Article 108 of the Constitution. Hence, in my opinion, if the ratified international agreement becomes part of the internal legal order in the form of a law and at least with such a rank (although with a stronger legal effect than the other laws) and prescribes rules of conduct of the legal subjects in certain areas, then the sublegal regulations governing the relations in the same fields must be in harmony with that ratified international agreement, as each sublegal regulation must be in accordance with law. Accordingly, the competence of the Constitutional Court for the appraisal of that accordance in principle and in context may be found in Article 110 of the Constitution, although it is not expressly specified.
Accordingly, the decision of the Court misses an explanation about the disagreement of the repealed provisions from the rulebooks also with the Stabilisation and Association Agreement, when it comes to relations between the Republic of Macedonia and the European Community.
Article 1 of the Stabilisation and Association Agreement notes, inter alia, that the aim of this association is promotion of balanced economic relations and gradual development of a free trade zone between the Community and the Republic of Macedonia. Under Article 18 paragraph 4 of the Agreement, the quantitative restrictions of importation and the measures having the same impact on import in the Republic of Macedonia for products originating from the Community shall be repealed on the date of entry into force of this Agreement. The Agreement entered into force on 1 April 2004.
The analysis of the repealed provisions from the rulebooks demonstrates that they are not in concordance also with Article 18 paragraph 4 of the Stabilisation and Association Agreement, as, owing to their qualification made by the Court in its decision, they prescribe measures having an equivalent effect, that is, having the same impact as the quantitative restrictions of import from the EC. Namely, it is clear that if those measures discourage the turnover of foreign products, and encourage the turnover of domestic ones, as the Court has assessed, then they lead to a decrease of their importation, that is, appear as measures having an effect of quantitative restriction of importation. The treatment of the measures for encouragement of the population to purchase domestic products as measures having the equivalent effect of quantitative restriction of turnover, and as such in contradiction with Article 28 of the Treaty for the European Community (consolidated version) also lies in the judgments of the European Court for Justice in Luxembourg. A case that is particularly suitable for comparison is the case “Buy Irish” (249/81) in which the European Court of Justice, upon a lawsuit by the Commission against the Republic of Ireland, found the campaign of Ireland to be contrary to the prohibition to introduce quantitative restrictions into the turnover in the Community or measures having the equivalent effect under Article 28 of the Treaty, even when it took place through private legal entities.
On the basis of what has been noted, although even without that the challenged provisions were repealed, I consider that another opportunity was missed for the Constitutional Court to treat the Stabilisation and Association Agreement as an effective source of the domestic law and a criterion for its own decisions regarding the legality of sublegal regulations, and thereby the opportunity to reinforce its role of one of the key factors in the “Europeanization” of the legal order of the Republic of Macedonia.
Igor Spirovski
Judge to the Constitutional Court
of the Republic of Macedonia