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DECISION No. 333 DIN 2002 (EXCEPTION OF NON-CONFIDENTIALITY OF THE PROVISIONS ART.13-32 OF 3/2000 ON THE ORGANIZATION OF THE ACTIVITY OF REAL ESTATE AGENTS)

Issuer: Constitutional Court

The pending resolution of the objection of unconstitutionality of the provisions of art. 13 and 32 of O.G. 3/2000 regarding the organization of the activity of the real estate agents, excepted by the Romanian Association of Real Estate Agencies in File 3.415 / 2001 of the District Court 1 - Bucharest Municipality.

At the nominal call, there is a lack of parties to which the citation procedure is legally fulfilled. The representative of the Public Ministry asks for the exception, because it considers that the criticized law provisions are contrary to the principle of the separation of powers in the state, because the Government can not modify or abolish by ordinance a court decision to set up an association, whatever its nature.

COURT
taking into account the documents and the papers, finds the following:

By the Conclusion dated June 27, 2001, pronounced in File 3.415 / 2001, the District Court 1 - Bucharest Municipality notified the Constitutional Court with the exception of the unconstitutionality of the provisions of art. 13 and 32 of O.G. 3/2000 regarding the organization of the activity of the real estate agents, exception of the Romanian Association of Real Estate Agencies in a case having as object the finding that the Executive Bureau of the Romanian Association of Real Estate Agencies no longer has the legal competence to convene the inaugural congress of the National Union of Real Estate Agents .
In justifying the objection of unconstitutionality it is claimed that by the provisions of O.G. 3/2000 seriously violates the fundamental right of association enshrined in art. 37 of the Constitution. It is considered that the legal institution of the reorganization of the legal person has a general regulation - Decree 31/1954 - and a special one, concerning the commercial companies - Law 31/1990, according to which "the reorganization of the legal person is decided by the same bodies that have decided the establishment thus failing to legislate to reorganize a non-profit legal person established by a court order. " As such, by the provisions of art. 13 and the following in OG 3/2000 abolishes an association established by a court order on the basis of an association act of several legal persons with common legitimate interests and "precisely because of these legitimate legal interests becomes unenforceable." The members of the Romanian Association of Real Estate Agencies who have joined the act of association are obliged to rally the National Union of Real Estate Agents and to observe the rules imposed by the leaders of the union or of the subsidiaries, according to the ordinance ".
The 1st District Court - Bucharest City considers that the exception of unconstitutionality concerns O.G. 3/2000 in its entirety, and not only the provisions of art. 13 and 32 of this. It is considered that the ordinance does not violate the provisions of art. 37 of the Constitution, "because by virtue of Law 206/1999, the Government was empowered by the Romanian Parliament, under Article 114 paragraph (1) of the Romanian Constitution, to issue ordinances in the field of real estate agencies, associations and foundations, [...] this being an area of ​​general interest for which the Government was delegated to issue a normative act for the purpose of fulfilling its state goal. "
According to the provisions of art. 24 par. (1) of Law 47/1992, republished, the conclusion of the referral was communicated to the presidents of the two Chambers of Parliament and the Government, in order to express their views on the high objection of unconstitutionality.
The Government considers, in essence, that the provisions of O.G. 3/2000 does not prohibit the right of association, but regulates the conditions under which natural or legal persons wishing to carry out brokering of real estate operations may act. It also appears that the association of real estate agents within the National Union of Real Estate Agents is not a meeting on economic grounds, but strictly professional, in which sense, (2) and (3) of art. 32 of the ordinance empowered the Romanian Association of Real Estate Agencies to organize the inaugural congress of the newly formed National Union of Real Estate Agents, "but its role is limited to the mentioned organization". Consequently, it is considered that the exception to high unconstitutionality is unintelligible.
The presidents of the two Chambers of Parliament did not communicate their points of view.

COURT
examining the conclusion of the referral, the Government's point of view, the report drafted by the Judge-Rapporteur, the prosecutor's conclusions, the legal provisions criticized, as well as the provisions of the Constitution, as well as the provisions of Law 47/1992,

The Constitutional Court finds that it has been legally notified and is competent, according to the provisions of art. 144 lit. c) of the Constitution, as well as of art. 1 par. (1), but art. 2, 3, 12 and 23 of Law 47/1992, republished, to resolve the exception of high unconstitutionality.
The subject of the objection of unconstitutionality, as formulated by its author, is the provisions of art. 13 and 32 of O.G. 3/2000 regarding the organization of the activity of real estate agents, the content of which is the following:
-
Article 13: "On the date of entry into force of this Ordinance, the National Union of Real Estate Agents, established in Bucharest, 26 Ion Campineanu Street, 8, ap. 3, sector 1, hereinafter referred to as the Union , by reorganizing the Romanian Association of Real Estate Agencies.
The Union is a self-employed, non-profit-making legal person and is made up of real estate agents under the conditions set out in this Ordinance. ";
- Art. 32: "(1) The natural and legal persons who carry out their activity in the field of real estate intermediation on the date of entry into force of this Ordinance shall be able to continue their activity without the examination provided for in Article 5. In this respect, they shall shall file an application for registration within the Union within 3 months from the date of entry into force of this Ordinance, to which they shall attach, in original, an extract from the trade register, certifying the performance of this activity.


(2) The inaugural congress of the Union shall be organized by the Romanian Association of Real Estate Agents within 60 days from the expiration of the 3-month term stipulated in par. (1).
(3) The executive office of the Romanian Association of Real Estate Agents shall convoke and lead the congress within maximum 60 days from the date of entry into force of this Ordinance.
(4) At the date of the congress, the Romanian Association of Real Estate Agents shall decide on its patrimony.
(5) Within one year from the date of entry into force of this Ordinance, the real estate agents, companies, shall comply with the conditions imposed in art. 4 par. (1) under the sanction of loss of membership of the Union and their removal from the Register of Real Estate Agents. "
In the opinion of the author of the objection of unconstitutionality, these provisions of the law contradict art. 37 of the Constitution, which provides: "(1) Citizens may freely associate themselves in political parties, trade unions and other forms of association.
(2) Parties or organizations which, through their aims or activities, militate against political pluralism, the principles of the rule of law or the sovereignty, integrity or independence of Romania are unconstitutional.
(3) The judges of the Constitutional Court, the lawyers of the people, the magistrates, the active members of the army, the police officers and other categories of civil servants established by organic law can not be part of political parties.
(4) Secret associations are prohibited. "
Examining the exception to high unconstitutionality, the Court holds the following:
The author of the exception considers that the provisions of art. 13 from O.G. 3/2000, which have the founding of the National Union of Real Estate Agents, through the reorganization of the Romanian Association of Real Estate Agencies, and those of art. 32 of the same ordinance, regarding the organization of the inaugural congress of the Union by the Romanian Association of Real Estate Agents, which will decide on its patrimony, are contrary to the right to association stipulated by art. 37 of the Constitution. He argues that, in the case, by art. 13 and the following of the order dissolves an association established by a court sentence based on an association act of several legal persons with common legitimate interests, although according to Decree 31/1954 regarding natural persons and legal persons and Law 31 / 1990 on commercial companies, "the reorganization of the legal person shall be decided by the same bodies that have decided and its establishment".
In analyzing these claims, the Court finds that they are unclear as regards the invocation of the violation, by the law criticized, of the right to association, enshrined in art. 37 of the Constitution. This constitutional text enshrines the right to association, as the fundamental right of citizens, to be freely associated in political parties, trade unions and other forms of association. Being a fundamental right of citizens, he can not benefit the economic agents or, as in the case, the real estate agents or the real estate agencies. The association of economic agents in associations or unions at regional or national level is possible on contractual basis. As it is, the supposition, according to which the abolition, based on art. 13 and 32 of O.G. 3/2000, an association constituted by a court decision is contrary to art. 37 of the Constitution can not be withheld.
However, the Court finds that the provisions of Art. 13 from O.G. 3/2000 on the basis of which the National Union of Real Estate Agents is established by reorganizing the Romanian Association of Real Estate Agencies, as well as those of art. 14-32 of the same ordinance, which regulates the organization and functioning of the National Union of Real Estate Agents, are unconstitutional in relation to the principle of the separation of powers in the state, as well as to the provisions of art. 125 par. (1), art. 134 par. (1) and paragraph (2) lit. a) and art. 114 par. (2) of the Constitution.
Consequently, according to art. 25 par. (2) of Law 47/1992 on the organization and functioning of the Constitutional Court, republished, which stipulates that "If the exception is admitted, the Court will also rule on the constitutionality of other provisions of the contested act, of which, necessarily and obviously , the provisions mentioned in the notification can not be dissociated ", because the provisions of art. 13 can not be dissociated from those of art. 14-32, contained in Chapter II The organization and operation of the National Union of Real Estate Agents in the Ordinance, the Court is to extend the constitutionality control over these provisions of the law.
The aforementioned provisions are unconstitutional because the Government can not by an ordinance modify or abolish a court decision to set up an association, regardless of its nature, without thereby breaking the principle of the separation of powers in the state.
It is true that this principle is not enshrined in the Constitution, but in its jurisprudence the Court has held (for example, by its Decision No 96 of 24 September 1996, published in the Official Journal of the European Communities of 17 October 1996) that the principle of separation of the powers in the state can be deduced from all the constitutional regulations, especially those with the purpose of specifying the functions of the public authorities and the relations between them. The Court also finds that the provisions of art. 125 par. (1) of the Constitution, according to which "Justice is done through the Supreme Court of Justice and through the other courts established by law", as well as the constitutional provisions of art. 134 par. (1) and paragraph (2) lit. a), concerning the market economy and the freedom of trade. Under art. 13-32 of the Ordinance, Real Estate Agents, Individuals or Commercial Companies, constituted in the Romanian Association of Real Estate Agencies under a court order, are obliged to form a unique monopoly union by reorganizing the Association and to carry out work under these provisions, although such unions may be constituted exclusively on contractual terms and not by acts of authority.
The provisions of art. 13-32 from O.G. 3/2000 are unconstitutional and in relation to art. 114 par. (2) of the Constitution, which states that "the empowerment law will obligatorily determine the scope and date until which ordinances can be issued". By art. 1 lit. S.1 of Law 206/1999 on empowering the Government to issue ordinances, the Government was empowered to issue ordinances on the organization and operation of real estate agencies. However, by the provisions of Chapter. I and II from O.G. 3/2000 on the organization of the activity of the real estate agents, exceeding the limits of the abilities, the norms for the organization and functioning of the real estate agents, as well as the organization and functioning of the National Union of Real Estate Agents, by reorganization of the Romanian Association of Real Estate Agencies, established by a court decision .
For these reasons, under art. 144 lit. c) and art. 145 par. (2) of the Constitution, art. 13 par. (1) lit. A.c), art. 23 par. (3) and art. 25 par. (1) of Law 47/1992, republished,

THE COURT In the name of the law DECIDES:

Admits the exception of unconstitutionality raised by the Romanian Association of Real Estate Agencies in File 3.415 / 2001 of the District Court 1 - Bucharest Municipality and finds that the provisions of Art. 13-32 from O.G. 3/2000 regarding the organization of the activity of the real estate agents are unconstitutional.
The decision is communicated to the two Chambers of Parliament and the Government.

This reproduction is consistent with the original.

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