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January 17, 2022

CCR reasoning for ruling on DNA-Gov’t conflict: Legislator delegate alone competent to decide on GEO timeliness

Deciding on the timeliness of adopting an emergency ordinance is a prerogative of the delegated legislator alone, which can be vetoed only by parliamentary control, argues the Constitutional Court of Romania (CCR) in the reasoning to its ruling whereby it found that the investigation of the National Anticorruption Directorate (DNA) into the manner the Government’s Emergency Ordinance (GEO) No. 13 has been adopted caused a disruption into the Government’s activity.

“The Court upholds that assessing the timeliness of adopting an emergency ordinance, as regards the decision to legislate, is an exclusive prerogative of the delegate legislator, which may be vetoed only under the conditions expressly provided for by the Constitution, specifically through parliamentary control (…). Therefore, Parliament alone can decide on the fate of the Government’s regulatory act, by adopting a law to approve or reject it. (…) Given the constitutional provisions referenced to, the Court finds that no public authority other than the lawmaking one can control the Government’s regulatory act as regards the timeliness of the legislative act,” reads the reasoning of the Constitutional Court of Romania published on the institution’s website on Friday.

In addition, the Constitutional Court found that all the evidence DNA presented as constitutive elements of offence are just personal considerations or criticisms formulated by the authors of the denunciation as regards the legality and appropriateness of the act adopted by the Government, and that the case should have been closed under these circumstances.

“All the facts highlighted in the complaint were actually related to aspects intrinsic to the legislation adoption procedure, namely aspects related to timeliness and legality which do not fall within the authority of criminal investigation bodies, regardless of the legal classification established by the prosecutor. Since, by itself alone, the adoption of regulatory acts cannot be a constitutive element of offence, the Court finds that the facts incriminated in the complaint that was the starting point for Case No. 46 / P / 2017 (…) do not fall under criminal law, regardless of their legal classification,” the cited document reads.

According to CCR, the prosecutor’s decision to start probing this case has violated the principle of the separation of powers.

CCR also argues that by looking at the circumstances under which GEO 13/2017 was adopted, DNA assumed a competence that could lead to an institutional deadlock.

Under these circumstances, CCR found there is a conflict of constitutional nature between DNA and the Government, the Court is called upon to settle in its capacity as guarantor of the supremacy of the Constitution by showing the conduct public authorities must comply with.

“As regards the Prosecution Office of the High Court of Cassation and Justice and the DNA, the Constitution-compliant conduct arises from those stated above, namely exercising the competencies established by law according to the constitutional provisions regarding the separation of powers in the State and implicitly abstaining from all action which could result in superseding the responsibilities of another public authority. Therefore, the Prosecution Office is not competent to conduct criminal investigation activities into the legality and appropriateness of a regulatory act adopted by the legislator,” CCR argued in its reasoning.

The Constitutional Court’s ruling of February 27 taken by majority vote is final and generally binding.

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