The constitutional court bulletin

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