DECISION N0 139 of 14 December, 1994

on the constitutionality of the Law for the approval of the Government Ordinance n0 50 of 12 August, 1994, on the setting up of a tax for passing the frontier with a view to constitute some resources destined to social protection

The Constitutional Court was petitioned on 30 November, 1994 by 28 Senators, (namely...), on the unconstitutionality of the Law for the approval of the Government Ordinance n050 of 12 August, 1994.

Also, on 2 December, 1994, the Constitutional Court was also intimated by 66 Deputies, (namely...), on the unconstitutionality of the same law.

The Constitutional Court, on the grounds of Article 3 paragraph (2) of the Law n047/1992, ascertains it is competent to settle the two claims that were forwarded with the observance of the provisions under Article 144 sub-paragraph a) of the Constitution and under Article 17 paragraph (1) of the Law n047/1992.

The claim of the group of Senators points that by the Decision no.71/1993 the Constitutional Court stated that, as the tax for passing the frontier was destined to the payment for heating assistance, it was constitutional until the fulfillment of the term for paying this assistance, after that date the tax constituting “exclusively a financial impediment which saddles the right to free movement, that is not enclosed in any of the hypothesis provided by Article 49 of the Constitution”. Therefore, it is considered that the Government Ordinance n0 50/1994, approved by the law that is the object of the claim “has, purely and simply, ignored the position of the Constitutional Court, re-establishing a permanent tax of which the exercise of a citizen’s fundamental right is conditioned”, although the above decision mentioned stated that “such a modality may not have a principle character”. Also, it is considered that the tax institution is contrary to the provisions under Article 25 of the Constitution which guarantees the right of free movement, as well as under Article 49 of the Constitution, as it is not enclosed in any of the hypothesis limitatively provided by paragraph (1) under this Article. From another point of view, of the international regulations on the human rights, it is appreciated that the institution of the tax for passing the frontier is contrary to Article 13 paragraph 2 of the Universal Declaration of the Human Rights and to Article 2 point 2 of the Protocol n04 of the Convention for the protection of the human rights and fundamental freedoms. All the same, it is considered that the institution of the respective tax is contrary to the Final Act of the Conference of Security and Cooperation in Europe, signed in Helsinki, in 1975, the Final Document of the Vienna Reunion of the representatives of the states participants at the Conference for Security and Cooperation in Europe. As to the possibility of the Government to periodically correct the tax, it is appreciated that it would render even more difficult the exercise of the free movement right, contrary to the provisions under Article 49 of the Constitution.

The claim of the group of deputies essentially points that the above mentioned law is unconstitutional, as the tax for passing the frontier is a financial impediment which “limits the right of free movement”, contradicting the provisions under Article 25 paragraph (1) of the Constitution, according to which the right of free movement within the national territory and abroad is guaranteed, as well as the Universal Declaration of the Human Rights, the international agreements and treaties on these rights, according to which the signatory states assumed the obligation to facilitate the international movement of persons. Also, it is considered that the law acts contrary to Article 53 paragraph (2) of the Constitution, too, according to which the lega1 taxation system has to ensure “the fair distribution of the tax burden”. Along the same line it is considered that, according to Article 7 of the Ordinance, the tax is destined to financing certain measures for social protection assistance existent until the present, with resources ensured from the state budget, and by no means to some new measures which would justify the contribution of the population Through new taxes, as it has been the case of the legal provision that made the object of the Decision of the Constitutional Court n07 1/1993, by which it was stated that such a tax may not have a “principle character”, but only “for the institution of a protection measures on the grounds of Article 43 paragraph (1) of the Constitution”.

On the grounds of Article 19 of the Law n0 47/1992, the claims were communicated to the presidents of the two Chambers of Parliament and to the Government, which have not communicated their points of view.

As the two claims concern the unconstitutionality of the same law, it has been proceeded to their connection, the present decision being delivered.

The Constitutional Court

taking into account the two unconstitutionality claims that were received, the law which is the object of the constitutionality control, the provisions of the Constitution and of the Law n0 47/1992, holds the following:

Essentially, the unconstitutionality reasons invoked by the two claims concern the aspects linked to the international regulations referring to the human rights and aspects linked to the incidence of Article 49 paragraph (1) and Article 53 paragraph (2) of the Constitution.

Referring to the international regulations on the human rights, the invoked reasons are based on the provisions under Article 20 of the Constitution, according to which the provisions referring to fundamental rights and freedoms have to be interpreted and applied in accordance with the Universal Declaration of the Human Rights and with the respective agreements and treaties and the internal laws, the international regulations are having priority.

The claim of the group of Senators states that the institution of the tax would be contrary to Article 13 paragraph 2 of the Universal Declaration of the Human Rights, according to which ,,any person has the right to leave any country, including his own, and to return to his country”.

This unconstitutionality reason may not be held, as only the prohibition of free movement would be contrary to the respective provision. But, as it is stated in the very claim of the group of Senators, and, moreover, also of the group of Deputies, the institution of the tax represents a financial impediment for the exercise of the right of free movement, and not an interdiction.

Also, the claim of the group of Senators states that the institution of the tax would be contrary to “the letter and spirit” of the documents of Helsinki, Madrid and Vienna referring to the European security and cooperation, without specifying to what extent or referring to what provision under these documents the annoyance is evinced.

Yet, it is to be noticed that these international documents do not have the significance of any treaties or agreements concerning the human rights and only the Universal Declaration of Human Rights has been incorporated, by Article 20 paragraph (1) of the Constitution, in the domestic law, as any legal provision has to be interpreted and applied in accordance with its provisions. Therefore, neither this criticism may not constitute an unconstitutionality reason.

By the claim of the group of Deputies it is stated that any measure - including the financial ones - of rendering difficult the “international human contacts” would be contrary to the provisions under the international regulations, and therefore, unconstitutional. But according to point 3 of the Protocol n0 4 of the Convention on protecting the human rights and the fundamental rights, the right of free movement may be restricted by law for the limited reasons mentioned by this provision. That is why, a restrictive measure, in the situation it is framed in those provisions, may not be considered as being contrary to the international regulations referring to the human rights, so that the invoked reason, which has no destination from this point of view, may not be held as justifying the unconstitutionality of the tax.

Finally, by the claim of the group of Senators it is considered that the institution of the tax as contrary to the exact provisions under point 3 of the Protocol n0 4 of the mentioned convention, above ratified by our country, according to which the right of free movement in other country may be restricted by law, if this measure is necessary, in a democratic society, for national security, public safety, maintenance of public order, prevention of penal facts, protection of health or morals, or for protecting the rights and liberties of others.

In the claim the reasons for which the institution of the tax is contrary to these provisions are not mentioned. But it is to mention that to the provisions under point 3 of the Protocol n0 4 of the convention above mentioned the provisions under Article 49 paragraph (1) of the Constitution correspond, which under certain aspects, have a more restrictive character. Taking into account the provisions under Article 20 paragraph (1) of the Constitution, according to which its provisions referring to the fundamental rights and liberties shall be interpreted and applied in accordance with the provisions of international agreements and treaties concerning the human rights, it results that the regulations under point 3 of the Protocol n0 4 constitute a criterion for the interpretation and the applying of the constitutional provisions under Article 49, so that the provisions under this Article are essential for determining the constitutionality of a legal provision, the content of which Article have to be interpreted in accordance with the international norm.

Consequently, it results that the reasons invoked as referring to the incidence of the international regulation for determining the constitutionality of the Law for the approval of the Government Ordinance n0 50/1994 may not be held as justifying the unconstitutional character of this law.

Referring to the incidence of Article 49 of the Constitution, as it has been stated by the Decision of the Constitutional Court no.47/1993 referring to the constitutionality of the tax for the passing of the frontier with a view to feed the funds necessary for the tenements heating assistance during 1 November, 1993 - 30 April, 1994 and by the Decision of the Constitutional Court n0 75/1994 referring to the constitutionality of the Government power to establish a tax for passing the frontier in order to constitute some resources destined to the social protection, the tax for passing the frontier constitutes, a financial impediment, which restricts the exercise of the right of free movement provided under Article 25 paragraph (1) of the Constitution.

That is why the constitutional legitimacy may exclusively result from the provisions under Article 49 of the Constitution.

Taking into account that the Government ability law it was provided that the tax destination is the constitution of some resources necessary to the social protection and that, according to Article 7 of the Ordinance, as it was modified by the approval law, the sums cashed out of the tax for passing the frontier are destined to the payment of social assistance and of rights similar other, it results that among the reasons which may justify the restriction of certain rights, according to Article 49 paragraph (1) of the Constitution, the only one which may be taken into account is the legal one for the protection of the citizens rights and liberties.

On this grounds, the Constitutional Court stated, by the Decision n0 71 /1993, that the establishing of the tax in order to feed the funds destined to the payment of the assistance for tenements heating during November, 1, 1993 - April, 30, 1994 is constitutional, taking into account the “exceptional situation resulting from the lack budget funds necessary for the institution of a measure for protection, on the grounds of Article 43 paragraph (1) of the Constitution”.

It has also been stated by this decision that “such a modality may not have a principle character”, as it “would constitute exclusively, a financial impediment which limits the right of free movement, that is not enclosed in any of the hypothesis provided under Article 49 of the Constitution”.

From the provisions under Article I of the Ordinance it results that the tax for passing the frontier has been instituted “with a view to constitute some supplementary resources in order to grant certain rights for social protection”. Thus, according the new regulations, the tax has the value of a principle, no longer having an exceptional character linked to the applying of a certain measure for social protection.

As it has been stated by the Decision of the Constitutional Court no.75/1994, as the tax for passing the frontier affects a fundamental right - the right of free movement - “it may not be instituted but only if it is imposed in order to protect certain rights of the citizens”. Taking into account the purpose of the Government ability to pass Ordinances, such rights may not be but the ones which belong to the social protection. This fact supposes that the legislator should establish for the benefit of which specific rights tile tax has been instituted. The determination of these rights, yet, may not be generic, as it is provided under Article 1 of the Ordinance - “social protection rights” - or under Article 7 as it has been modified by the legislator

- the payment of the social assistance and other similar rights” -but, concretely, because according to paragraph (2) under Article 49 of the Constitution “the restriction has to be proportional to the situation it has determined” and this proportionality may be established but for the consideration of a certain right for the achievement of which, as paragraph (1) of the same Article provides, the restriction “is imposed”. In other words, the restriction of a constitutional right - in the present cases, of the right of free movement provided under Article 5 of the Constitution - in order to defend certain rights of the citizens, is possible, according to Article 49 of the Constitution, only for the consideration of a certain right, as a measure that has to be imposed, for, without this restriction, the respective right would be gravely affected and, according to the proportionality principle, only to the limits necessary in order that this right should not be compromised, at least to some extent. Fundamentally, in this situation, a right is affected by law in order to safeguard another right, the importance of which is considered as primordial by the legislator. But, in the absence of stating the right for the benefit of which the restriction occurs out of the mere reference to the rights of social protection (Article I of the Ordinance) or to the rights of social assistance (Article 7 of the Ordinance) it does not result either that this restriction “is imposed”- as provided for by paragraph (1) under Article 49 of the Constitution - or that it is proportional to the situation it has determined - as provided by paragraph (2) under the same Article, On the contrary, Out of Article I of the Ordinance it results that the tax has a principle character, final, and is destined to constitute supplementary resources in order to feed certain funds of the budget for state social insurances. By means of these funds, therefore mediated, the tax is destined to pay certain rights, generally defined, without the possibility to deduce to what extent they would compromised without this restriction.

It is true that, according to Article 53 paragraph (1) of the Constitution, the citizens have the obligation to contribute, by taxation and taxes, for the public expenses, and the payment of the social insurances rights constitutes a public expense. Yet, according to paragraph (2) of the same Article, the legal taxation system has to ensure the fair distribution of fiscal burdens, which supposes to take into account some incomes, values or labor conscription, and not only the mere exercise of a constitutional right, as the right of free movement is. Principally, a tax has a justification in a labor conscription of a public authority. Otherwise, if it exclusively affects the realization of a fundamental right, it represents a financial impediments, of a nature to restrict unconstitutionally the exercise of that right.

Out of the displayed facts it results that the Law on the

approval of the Government Ordinance 50/1994 is unconstitutional because:

- it institutes a restriction of the right of free movement provided by the Article 25 of the Constitution, with permanent and principle character;

- it represents a financial impediment for the exercise of the right of free movement which is not justified, according to Article 49 of the Constitution, as a measure which is imposed for the protection of another right, without this restriction, would be gravely compromised;

- it constitutes a measure adopted with the eludation of the proportionality principle provided by paragraph (2) under Article 49 of the Constitution, as it may not be held that the social protection insurance, at least to some extent, would no longer be realizable without the institution of this tax, as long as they are supported by the budget of state social insurances approved by law;

- it constitutes a measure contrary to the principle of the fair distribution of the fiscal burden provided under Article 53 paragraph (2) of the Constitution, as it represent a tax instituted on the simple exercise of a constitutional right, without being justified in any way the labor conscription of a public authority.

Taking into account the exposed reasons, also noticing the provisions under Article 20, Article 25 paragraph (1), Article 49, Article 53 paragraph (2), Article 144 sub-paragraph a) and Article 145 paragraph (1) of the Constitution, as well as under Article 20 of the Law 47/1992,

THE CONSTITUTIONAL COURT

In the name of the law

DECIDES:

It declares that the Law on the approval of the Government Ordinance 50 of 12 August, 1994 regarding the institution of a tax for passing the frontier in order to constitute some resources destined for social protection is unconstitutional.

The decision shall he notified to the President of Romania. as well as to the president of the Chamber of Deputies and to the president of the Senate, in order to institute tile proceeding provided under Article 145 paragraph (1) of the Constitution; and shall be published in the ,,Monitorul Oficial'' of Romania, Part 1.

The debate took place on December, 14, 1994 and was attended by Vasile Gionea, chairman, Mihai Constantinescu, Miklos Fazakas, Ion Filipescu, Anionie Iorgovan Ioan Muraru and Victor Dan Zlatescu, judges.