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| Veaceslav Craciun | |
On June 29, the People’s Assembly of Gagauzia adopted the law on the fiscal certificate that was formulated to replace the law concerning the fixed tax that was earlier annulled by a court decision. This is by far not the first case when the local legislation is classed as defective by the judicial system of Moldova. Can we speak about the infringement of the region’s powers or this is abuse of power?
New old law
The law concerning the fixed tax was adopted in Gagauz-Yeri in 2001. It referred to the activity of small entrepreneurs that benefitted from a patent and were exempted from having cash registers and from keeping booking records. In Gagauzia, there are about 800 patent holders who work mainly in retail trade and catering.
The fixed tax is a sum paid into the local budget and includes a series of taxes calculated depending on the size of the enterprise’s commercial area (at most 50 square meters). The Comrat local office of the State Chancellery requested the court to repeal the law. One of the invoked reasons was that the fixed tax included the income tax that is managed by the state. The court ruled that the People’s Assembly abused its power when it adopted the given law.
The law concerning the fixed tax was annulled at the start of June. The authorities of Gagauzia needed less than a month to work out an alternative document by keeping all the regulations envisioned for small enterprises. The State Chancellery hasn’t yet pronounced on the new law. If the institution asks these regulations to also be repealed, time will be needed for the issue to be examined by the courts of all levels. The People’s Assembly is not concerned about this and makes it clear it is ready to defend its rights and, under different names, will adopt the law as many times as need be.
Legitimacy test
The court of law long ago became a ground for testing the compliance of the legislation of Gagauzia with the national legislation. According to the authorities of the region, during the past two years alone, the courts of law annulled 11 local laws at the request of the State Chancellery. For example, on February 13, 2018, the court annulled Article 49 of the Regulations of Gagauzia and a number of articles of the law on the status of the deputy of the People’s Assembly of Gagauzia and of the regulations concerning the legislative immunity enjoyed by the deputies of the legislative body of the autonomous unit.
Not only the State Chancellery challenges particular legal acts of the region. At the end of 2017, the administrative court of Comrat ruled in favor of the Ministry of Education, Culture and Research of Moldova in the case concerning the annulment of the regional law on education. However, the Main Education Division of Gagauzia successfully disputed this decision at the Appeals Court.
Any lawsuit or any attempt to partially or fully annul local laws meets with opposition in Comrat. Moreover, the opinion that the common law court cannot pronounce on the laws in Gagauzia prevails here given that the laws adopted by the People’s Assembly are legitimate a priori and not their legitimacy, but their compliance with the Constitution should be examined. But this is within the remit of the Constitutional Court, not of the State Chancellery.
But this position taken by the authorities of the region has a vulnerable point – the law on the special status of Gagauzia does not have a constitutional status and all the powers of the autonomous unit are specified in the basic law. This means that many local laws could fail the constitutionality test and, if the Constitutional Court passes such a judgment, the People’s Assembly will be unable to continue the game with the endless adoption of one and the same law under different names.
Unspecified autonomous powers
Sincerely speaking, the functioning of Gagauzia implies not only the constitutional guaranteeing of its powers, but also the explanation of the powers enjoyed by its administrative bodies. To understand what is meant, we will give only one example. For instance, in accordance with the law on the special legal status of Gagauzia, the People’s Assembly adopts local laws in the economic sector. Based on this power, the People’s Assembly adopted the law concerning the licensing of activities on the territory of Gagauzia (Gagauz-Yeri), which defines the legal, organizational and economic conditions of issuing licenses for particular kinds of activities on the territory of the autonomous unit. The document provides that the divisions of the executive committee and the bodies of the public administration of ATU Gagauzia are empowered to provide licenses for particular types of activities.
But the Moldovan legislation does not offer the authorities of Gagauzia the right to issue licenses. The law concerning the regulation of entrepreneurial activity by licensing of the Republic of Moldova stipulates that only the Licensing Chamber, the National Bank, the National Commission for Financial Markets, the National Agency for Energy Regulation, the National Regulatory Agency for Electronic Communications and Information Technology and the Broadcasting Coordination Council can issue licenses.
From formal viewpoint, the People’s Assembly in this case abides by the right to issue licenses in the economic sphere. In fact, the lack of concrete limits for realizing this right causes disputes in Chisinau. There are many examples of such handicaps and contradictions.
In essence, the existence of the autonomous unit is proven by the laws adopted by its authorities or, more exactly, by the way in which these laws are implemented. In relation to Gagauzia, it would be judicious to say that the process of delegating powers to the local level hasn’t been finished. Without solid guarantees for the offered powers and without specifying these, there will always be reasons for legal disputes. As long as there is no certainty that the laws of Gagauzia can pass the constitutionality test, the region’s status of autonomous unit will remain only declaratory in character.
Veaceslav Craciun, Comrat
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