The constitutional court bulletin

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”.