The constitutional court bulletin

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.