Publicaţie bilingvă, editată semestrial

Conclusions

The importance of the principle of legal certainty for the existence of the rule of law requires more attention to the quality of law. Therefore, even if the exponential increase in the number of laws and their complexity can be justified by factors such as historical, sociological, political, economic, an effort to discipline and obedience excess regulatory rules on legal certainty is required. It is an effort that concerns the legislator  primary or delegated, and that involves diagnosing problems, identifying appropriate remedies in the sense of organization of the legislative activity through its rigorous foundation on the principles of legislative technique and increasing accessibility and foreseeability of legal rules. Let’s recall that„[...] the style of laws should be simple ... When the style of the laws is inflated, they are regarded only as a work of ostentation…The laws must not be subtle; they are made for people of middling understanding. When exceptions, restrictions, modifications, are not necessary in a law, it is much better not to put them there. Such details hurl one into new details. No alteration should be made in a law without sufficient reason. Care should be taken that the laws be worded in such a manner as not to be contrary to the very nature of things [...]”¹²¹ .

Finally it is worth stressing the need to increase the role of the Legislative Council which, under Article 79 of the Constitution, “is a specialized consultative organ of Parliament that gives advice on draft normative acts with a view to the systematic unification and coordination of the whole body of laws.” Doctrinal studies¹²² reveal that, at present, a series of laws are rarely subject to Council endorsement (amendments proposed in committee or plenary session of Parliament, Bills or legislative proposals received by committees after adoption thereof by the Chambers of Parliament) and others are not subject to endorsement (administrative orders, instructions and other acts issued by heads of ministries, central public administration bodies and autonomous administrative authorities, which are issued under and in enforcement of laws, decisions and ordinances of the Government, draft laws for approval or rejection of ordinances). However, this represents a risk in providing the unitary character of the law¹²³, and in this respect also the Constitutional Court stressed the importance of involving the mentioned authority in the legislative activity. For example, in a case within the a priori¹²⁴ constitutional review, noting that an opinion from the Legislative Council concerns the legislative proposal on certain measures for the organization of public administration and that the bill adopted by the Senate has a different wording as compared with the one initially endorsed by the Council, the Court held that “in this case, the court must see if it weren’t the case that for the amendments made in committee be called the standpoint of the Legislative Council, taking into account the constitutional support of Article 79 paragraph ( 1) of the Basic Law and that in Article 99 paragraph (7) of Regulations of the Chamber of Deputies.”

Given the abovementioned and the jurisprudence to which we referred, we find appropriate, mutatis mutandis, as a conclusion, to invoke a recommendation of the French State Council¹²⁵, determined by the finding concerning the aggravation of the problem of legal certainty in the French law: “legislate less, legislate better”¹²⁶.

RECENT DEVELOPMENTS IN THE JURISPRUDENCE
OF THE ROMANIAN CONSTITUTIONAL COURT
ON THE CONDITIONS UNDER WHICH THE GOVERNMENT ADOPTS EMERGENCY ORDINANCES

Benke KÁROLY

Magistrate assistant

PhD candidate in Constitutional law

Trainer at the National Institute for Magistracy

1. Legislative delegation

Article 61 paragraph (1) of the Romanian Constitution stipulates, expressis verbis, the principle according to which the Parliament is the sole legislative authority of the country, indicating unequivocally that the act of passing legislation is the exclusive competence of the Parliament. However, the Romanian constitutional system provides for two important exceptions to the legislative monopoly of the Parliament¹²⁷:

(1) the substitution of the Parliament in the enactment of primary regulatory normative acts by the Government, in exceptional circumstances (Article 115 of the Constitution);

(2) the jurisdiction of the Constitutional Court which can declare unconstitutional certain regulations¹²⁸ (Article 147 of the Constitution).

The present study refers to the procedure of legislative delegation as provided by Article 115 of the Constitution.

The legislative delegation is defined by the legal doctrine as a “transfer of certain legislative powers to the authorities of the executive power by an act of will of the Parliament or by constitutional means, in exceptional circumstances”¹²⁹. Such a transfer is not contrary to the principle delegata potestas non delegatur, as it is made on the basis of the will of the constituent power which has expressly delegated certain legislative prerogatives to the executive by the constitutional text itself   Article 115¹³⁰. Therefore, it is held that certain legislative prerogatives are delegated, but not the legislative power/ function¹³¹ per se.

Article 115 of the Constitution establishes two types of acts by which the executive exercises the legislative delegation: simple ordinances, which may be issued only on the basis of a special law in which the Parliament approves and limits the fields in which the Government may regulate (procedure commonly used during the Parliament break) and emergency ordinances, where the legislative delegation is granted directly by the Constitution. The jurisprudence of the Constitutional Court¹³² established that the legal status of the two categories of ordinances is different, therefore, the emergency ordinance is not another type of ordinance adopted under a special law stating the conditions for the delegated powers, but a constitutional instrument that allows the Government, under the strict control of the Parliament, to face an extraordinary situation which justifies the need to pass an emergency regulation. The extraordinary nature of the circumstances calls for immediate solutions and legal intervention in order to avoid a serious prejudice to the public interest.
2. The legal nature of the emergency ordinance

The jurisprudence of the Constitutional Court and the legal doctrine are consistent with regard to the legal nature of emergency ordinances. Considering the nature of the issuing authority, the emergency ordinances should be administrative acts, but, given the matter they regulate, they are in fact legislative acts¹³³. According to Article 115, paragraphs (5) and (7) of the Constitution, these acts must be submitted to Parliament’s scrutiny, which shall pass a law approving or rejecting it. Until such a law is passed by the Parliaments, the ordinance produces effects and shall be treated as law, the Government acting as positive legislator¹³⁴. The Constitutional Court has held that emergency ordinances have the force of law¹³⁵ and therefore may contain rules of primary regulation. Following the approval by law of the emergency ordinance, in accordance with Article 115 paragraph (7) of the Constitution, they “cease to be independent acts and become, as a result of approval by the legislative authority, normative acts with force of law, even if for reasons of legislative technique, in addition to the number and date of the approval law, they bear the identification elements attributed upon their adoption by the Government.”¹³⁶.

Therefore, considering the above, we can conclude that the emergency ordinance, under the material aspect, contains primary rules, having the force of a law; however only after approval by law as act of the Parliament, the legal rules contained therein are raised at the rank of law.
3. Express constitutional limitations on the adoption of emergency ordinances

By Decision no. 15 of January 25, 2000¹³⁷, the Court held that “the fact that the Government, in exceptional cases, may adopt emergency ordinances, with limitations, even in the reserved area of the organic law, can not amount to a discretionary right of the Government and, especially, this constitutional entitlement can not justify the abuse in issuing emergency ordinances. The power of the executive to govern through emergency ordinances shall be justified on a case by case basis by the existence of exceptional circumstances which require the adoption of emergency regulations¹³⁸”. Also, by Decision no. 544 of June 28, 2006¹³⁹, the Court found that “regulation via ordinances and emergency ordinances constitutes, as expressly provided in Article 115 of the Constitution, a task performed by the Government under the legislative delegation, and stepping over the limits of this delegation, established by the very text of the Constitution, is an unacceptable interference in the legislative jurisdiction of Parliament, i.e. a violation of the principle of separation of powers.”

There are certain limits strictly defined by the Constitution as concerns the power of the Government to adopt emergency ordinances.

Thus, emergency ordinances:

a) shall be adopted in extraordinary circumstances, which call for regulatory measures without delay, the Government having the obligation to reason the emergency by stating the facts which constitute the extraordinary circumstances[Article 115 paragraph (4) of the Constitution];

b) cannot be adopted in fields pertaining to constitutional laws; furthermore, they cannot affect the status of the State fundamental institutions or any of the rights, freedoms and duties set forth in the Constitution, the electoral rights, or provide measures for the forcible transfer of assets into public property [Article 115 paragraph (6) of the Constitution].

4. The jurisprudence of the Constitutional Court on the limitations prescribed by Article 115 paragraphs (4) and (6) of the Constitution

a) The limitation prescribed by Article 115 paragraph (4) of the Constitution

By Decision no. 255 of May 11, 2005¹⁴⁰, the Court established that the Government may adopt emergency ordinances under the following conditions, cumulatively met:

• 
  existence of an extraordinary circumstances;
  
• 
  regulation can not be delayed;
  
• 
  the reasons providing the emergency and constituting extraordinary circumstance be set forth in the content of the ordinance.
  

The derivate constituent legislator, by using the phrase “extraordinary circumstances” tried to “restrict the area in which the Government may replace the Parliament in consideration of certain reasons that it is sovereign to determine”. The extraordinary situations express a high deviation from the normal or common, which is also strengthened by adding the phrase “which call for regulation without delay", enshrining thus in terminis the imperative for the emergency of such regulation. By the same decision, the Court held that invoking an element of opportunity does not meet the requirements of Article 115 paragraph (4) of the Constitution, as it is, by definition, of subjective nature, and it does not have, necessarily and unequivocally, an objective character, and it can give expression also to other subjective factors, of opportunity.

The cases with “financial implications related to the enforceability of judgments" do not constitute an extraordinary situation. “These issues pertain to the opportunity of passing a regulation [...] “¹⁴¹.

The Court also held by Decision no. 255 of May 11, 2005, that the emergency, arising out of the existence of extraordinary circumstances, may not be accredited or motivated by the utility of the regulation.

Likewise, by Decision no. 258 of March 14, 2006¹⁴², the Court held that “inexistence or failure to explain the emergency of the extraordinary circumstances, [...] clearly constitutes a constitutional barrier in the Government’s path to adopt an emergency ordinance for the purposes stated. To decide otherwise is to undermine the provisions of Article 115 of the Constitution on legislative delegation and leave the Government free to adopt under emergency regime regulations having the force of law, anytime and   taking into account the fact that the emergency ordinance may regulate also in matters covered by organic laws   in any field”. Furthermore, the Court, by Decision no. 421 of May 9, 2007¹⁴³, held that “the emergency to regulate does not amount to the existence of an exceptional circumstance, as the operational regulation can be achieved also by means of the ordinary legislative procedure”.

The emergency of the measure can neither be justified by the need to harmonize the Romanian legislation with the EU legislation, the Constitutional Court stating in its practice that “modification or unification of legislation in a field or another does not justify, by itself, the issuance of an emergency ordinance.”¹⁴⁴

b) Limitation prescribed by Article 115 paragraph (6) of the Constitution

By Decision no. 1189 of November 6, 2008¹⁴⁵, the Court held that “the interdiction on the adoption of emergency ordinances is total and unconditional when it mentions that «they can not be adopted in the field of constitutional law» and that «they may not refer to measures of forcible transfer of assets to public ownership. » In other areas provided by the text, emergency ordinances can not be adopted if they “affect", i.e. if they have negative consequences, but instead, may be adopted if, by the rules which they contain, have positive consequences in the areas in which they regulate". Thus, the notion of “affecting" the rights, freedoms and duties under the Constitution, contained in the text of Article 115 paragraph (6) of the Constitution refers to measures that “suppress”, “breach, “prejudice”, “damage“, “injure”, “have negative effects". Such an interpretation concerns also the constitutional provisions on the prohibition to affect the fundamental institutions of the State¹⁴⁶ by way of adopting an emergency ordinance.

By Decision no. 104 of 20 January 2009 it was established that the change of the jurisdiction concerning litigations dealing with the grant of salary rights to the personnel in the justice system, breaches the provisions of Article 115 paragraph (6) of the Constitution as it affects the system of a fundamental institution of the State, the High Court of Cassation and Justice, whose constitutional status is regulated by the provisions of Article 126 paragraph (4) of the Constitution. Thus, “placing in the jurisdiction of the Supreme Court the settlement of appeals against the decisions of courts of appeal in the first instance have the effect of extension of its sphere of competence and over dimensioning its activity, considering that, in accordance with Law no. 304/2004 on the judicial organization, republished, with amendments and completions, the High Court of Cassation and Justice does not have a section dealing with the settlement of labour conflicts and litigations”.

5. Emergency Ordinance can not counteract a law adopted by the Parliament

The problem that arose in the recent jurisprudence of the Constitutional Court has been to establish to what extent the Government, by issuing an emergency ordinance, may devoid of legal effect a law passed by the Parliament

Initially, in the jurisprudence of the Constitutional Court, such a question had not been raised. The Court, on several occasions, had established the constitutionality of certain emergency ordinances proroguing the entry into force of certain legal provisions¹⁴⁷, suspending the application of certain legal provisions or repealing, amending or supplementing laws adopted by Parliament¹⁴⁸. In this regard, as an example, we mention Decision no. 253 of June 17, 1997¹⁴⁹, by which the Court held that “adverse economic phenomena constituting a public danger, by their magnitude and consequences, can justify, in principle, the adoption of measures by emergency ordinances, provided that such measures aim to stop such phenomena". In that case, by the objection raised, it had not been disputed the need and justification for the measures adopted by ordinance, but only the repeal of a previous law, having basically the same purpose of preventing and removing financial blockage. In these circumstances, the repeal of the earlier legislation is justified by the avoidance of possibly contradictory parallel regulations.

By Decision no. 27 of February 10, 1998¹⁵⁰, it was held that “the ordinance, being the expression of legislative delegation, necessarily involves the possibility to amend or repeal laws in force, according to the limits of the legislative authority, which, in case of emergency ordinances, is referred to in paragraph (4) of Article 114 of the Constitution” (current Article 115). In this regard is also the Decision of the Constitutional Court no. 102 of 31 October 1995, published in the Official Gazette of Romania, Part I, no. 287 of December 11, 1995, in which the Court held that “by ordinances, the government may pass primary regulations, amend or repeal existing legislation“.

Likewise, by Decision no. 46 of February 12, 2002¹⁵¹, the Court ruled that “if the economic, financial or social circumstances require such measures, the legislator may temporarily suspend the application of certain legal provisions, by means of a legislative act of the same level”. In that case, the application of Article 79 of Law no. 164/2001 on military State pension had been suspended by Government Emergency Ordinance no. 85/2001.

However, with Decision no. 1221 of 12 November 2008¹⁵² the Constitutional Court brought in the balance a new element to limit the scope of the Government in adopting emergency ordinances. In the decision referred to, the Court held that “the adoption by the Government of Emergency Ordinance no. 136/2008 was not motivated by the need to regulate in an area where the primary legislature did not intervene, but it is rather a measure to counteract a measure of legislative policy concerning teaching staff wages approved by the Parliament. So, given the terms in which the primary legislator has already established the conditions and criteria for granting such salary increases, by Law no. 221/2008 for approval of Government Ordinance no. 15/2008 on wage increases that are granted in 2008 for teachers, published in the Official Gazette of Romania, Part I, no. 730 of 28 October 2008, the act of the Government, through its further legislative intervention, is in conflict with the provisions of Article 61 paragraph (1) of the Constitution, under which the «Parliament is the supreme representative body of the Romanian people and the sole legislative authority of the country»”.

Likewise, by Decisions no. 842 of June 2, 2009¹⁵³, no. 984 of June 30, 2009¹⁵⁴ and no. 989 of June 30, 2009¹⁵⁵, the Court established that “the adoption of emergency ordinances for the sole purpose to counter a measure of legislative policy concerning teaching staff wages approved by the Parliament violates Article 1 paragraph (4), Article 61 paragraph (1), Article 115 paragraph (4)”.

The fourth decision mentioned above clearly points out the fact that the Government, when adopting emergency ordinances, in addition to the conditions laid down in Article 115 paragraphs (4) and (6) of the Constitution, must take into account the constitutional provisions of Article 61 paragraph ( 1). The Government, by adopting an emergency ordinance, cannot openly oppose a law already passed by the Parliament. Such a limitation of the delegated legislator is inherent in the nature of legislative delegation. Thus, the legislative powers delegated to the Government may not constitute obstacles to the implementation of a primary regulatory act adopted by the legislative power itself in the exercise of its original powers. The Government should work towards the implementation of laws enacted by the Parliament, and when it considers that there are not sufficient financial resources or any other resources for applying the law passed, it shall make use of other constitutional means by which it can change the law in question. Thus, the Government will undertake its responsibility under Article 114 of the Constitution or will submit to the Parliament for adoption a draft law in emergency procedure. It clearly results that, for any reason, the Government can not alter or counteract proprio motu the materialized will of the Parliament. Furthermore, it is held that the principle of separation of powers requires balance and cooperation between them and not irreparably antagonistic positions, and when such a state of crisis is configured, each power can use the instruments it has under the Constitution, it its letter and spirit.

To accept a contrary point of view, namely that the Government, by adopting emergency ordinances is constitutionally legitimate to counter the legislative measures taken by the Parliament, would amount to the transformation of the exceptional power of the Government to substitute the Parliament into a general power.
6. The Emergency Ordinance can not confirm an unconstitutional legislative solution

Likewise, the Court, by Decision no. 983 of June 30, 2009¹⁵⁶, finding unconstitutional a simple ordinance for the reason that by its adoption the Government exceeded the limits of the power granted to it, held that “the amendment or completion of the criticized legal provision by the ordinary or delegate legislator cannot cover the unconstitutionality found by the Constitutional Court, subsequent regulatory acts of amendment or completion being affected by the same fault of unconstitutionality as far as it confirms the legislative solution declared unconstitutional for intrinsic or extrinsic grounds."

In such a case, the procedure for amending or completing an unconstitutional primary normative act by an emergency ordinance to the extent that the latter confirms the previous legislative solution is unconstitutional¹⁵⁷.

Thus, in light of the constitutional provisions and the jurisprudence of the Constitutional Court, the adoption of emergency ordinances requires compliance with at least four critical limitations, two of which are expressly stipulated by the Constitution, and two of which are implicit:

  existence of exceptional cases which call for regulatory measures without delay, the Government being obliged to set forth the reasons for that emergency in the very content of the regulatory act [Article 115 paragraph (4) of the Constitution];

  interdiction to adopt ordinances in fields pertaining to constitutional laws, or affecting the status of fundamental State institutions or any of the rights, freedoms and duties set forth in the Constitution, the electoral rights, or envisage any measures for the forcible transfer of assets into public property [Article 115 paragraph (6) of the Constitution];

  interdiction to alter or counteract the will expressed by the Parliament in a law, obligation arising from the provisions of Article 1 paragraph (4) and Article 61 paragraph (1) of the Constitution;

  interdiction to confirm / reiterate certain intrinsic or extrinsic unconstitutional legislative solutions through amendment or completion of a legal act, the unconstitutionality affecting also the subsequent act of confirmation.

Finally, we want to stress the fact that both the Government and the Parliament must pay special attention to the conditions in which ordinances are adopted as “the grounds of unconstitutionality of an ordinance or emergency ordinance issued by the Government can not be covered through the approval by the Parliament of that ordinance. Consequently, the law approving an unconstitutional emergency ordinance is itself unconstitutional. “¹⁵⁸.




II. Jurisprudence