The constitutional court bulletin

CONSTITUTIONAL COURT JURISPRUDENCE REVIEW
IN RELATION TO THE FIRST SEMESTER OF 2009

Tudorel TOADER

Judge at the Constitutional Court

Laura TUTUNARU

Assistant Magistrate

Legal dispute of a constitutional nature
Following the reference formulated by the President of Romania, Mr. Traian Băsescu, the Constitutional Court ascertained the existence of a legal dispute of a constitutional nature between the judicial authority, on one hand, and the Parliament of Romania and the Government of Romania, on the other.

The legal dispute of a constitutional nature between the said authorities was determined by two decisions concerning the appeals in the interest of the law grounded on the non unitary practice of courts with regard to the granting of certain salary rights to judges, public prosecutors, other magistrates, tax judges, tax prosecutors, tax controllers or to the ancillary specialized staff within the courts and prosecution offices.

As from the analysis of the decisions rendered by the supreme court in solving the appeals in the interest of the law which are mandatory for courts, the Constitutional Court finds that the High Court of Cassation and Justice adopted the thesis with principle value and general applicability according to which the courts may adjudicate as on the constitutionality of repealed provisions by virtue of the principle of completeness of jurisdiction in the cases pending before them. Thus, the review of constitutionality and the settlement of the objection of unconstitutionality concerning repealed rules, by interpretation per a contrario of Article 147 paragraph (1) with reference to Article 126 paragraph (1) of the Constitution, are of the competence of the courts of law, and not of the Constitutional Court, which, pursuant Article 29 paragraph (1) of Law no. 47/1992 may adjudicate only on the unconstitutionality “of a law or ordinance, or of a provision from a law or ordinance into force”, provision that excludes de iure any conflict of jurisdiction in this matter.

Invoking vices of legislative technique or flaws of unconstitutionality, the High Court of Cassation and Justice has reinstated rules which applicability had ceased being repealed by normative acts of the legislative authority.

Such procedure is equivalent, as the court of constitutional contentious stated in its jurisprudence¹⁵⁹, to giving to the provisions of a normative act a meaning by which the courts are granted with the power to abolish legal rules set by law and to create other rules or to substitute them with rules comprised in other normative acts. Such is obviously unconstitutional since it infringes the principle of separation of powers enshrined by Article 1 paragraph (4) of the Constitution, as well as the provisions under Article 61 paragraph (1) according to which the Parliament is the sole legislative authority of the country.

The Constitutional Court stated that in exercising its power provided under Article 126 paragraph (3) of the Constitution the High Court of Cassation and Justice must secure the unitary interpretation and application of the law by all courts, in compliance with the basic principle of separation and balance of powers enshrined by Article 1 paragraph (4) of the Constitution of Romania. Thus, the High Court of Cassation and Justice does not have the constitutional jurisdiction to set up, modify or repeal legal rules with force of law or to carry out the constitutional review thereof.

The Constitutional Court found that, according to the Basic Law, the sole authority authorized to exercise the constitutional review of laws and ordinances is the constitutional court. Therefore, neither the High Court of Cassation and Justice nor the courts of law or other public authorities of the State have the power to review the constitutionality of laws or ordinances, regardless if the same are in force or not.
Decision no. 838 of May 27^th 2009, published in the Official Gazette

of Romania, Part I, no. 463 of July 3^rd 2009