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December 5, 2020

CCR admits President Iohannis’s referral, elected officials cannot be individual trader

Romania’s Constitutional Court (CCR) admitted on Tuesday President Klaus Iohannis’s referral on Law 161/2003, noting that the amendments through which parliamentarians, ministers, dignitaries, county councils’ prefects and sub-prefects can have the quality of individual trader are unconstitutional, CCR President Valer Dorneanu announced.

On 18 January President Klaus Iohannis tabled with the CCR an unconstitutionality referral on the law for the amendment of Law no. 161/2003.

The Law transmitted for promulgation on 30 December aims to regulate the amendment of Law no. 161/2003 in the sense of eliminating the incompatibility of such positions as deputy, senator, Gov’t member, sub-prefect, mayor, deputy mayor, general mayor, and deputy general mayor of Bucharest municipality, county council president and vice-president with the quality of trader private citizen.

“By the way in which it was adopted, and also through its legal content, the Law for the amendment of Law no. 161/2003 regarding some measures for ensuring transparency in exercising public dignitaries and public positions and in the business milieu, the prevention and sanctioning of corruption is unconstitutional as it breaches the provisions of article 1, paragraph (3), of art. 11, par. (1), art.65, par. (2), letter j), of art 75, par.(1) and par (5), relative to art. 105 par. (2) and of art. 148 par.(4) of the Constitution,” the head of state specified in the referral addressed to CCR.

President Iohannis invokes extrinsic unconstitutional reasons. Thus, he affirmed that the provisions of article 82, par (1), letter e) of Law no. 161/2003 are repealed through the sole article no.1 of the law inferred by the constitutional control, which institutes the incompatibility between the deputy and senator quality and that of individual trader.

The head of state underscored that this provision should be adopted in the joint meeting of Parliament’s two Chambers, given that a matter pertaining to the statute of deputies and senators is being regulated. He indicated the fact that the law was rejected by the Senate and then it was adopted by the Chamber of Deputies, specifying that the Fundamental Law was thus broken.

As regards the incompatibility between the position of mayor, deputy mayor, general mayor, and deputy general mayor of Bucharest municipality, county council president and vice-president with certain private positions, Iohannis showed that the constitutional jurisprudence has established that it is not an eligibility criterion and its removal depends on the will of the one elected, who can opt between the two incompatible qualities.

Thus, he maintains that a public position which carries the transparency obligation as to the use and management of public funds cannot be fulfilled if at the same time a person is involved in the business milieu as the cumulation of the two positions could harm the community’s general interests and the principles underlying the rule of law.

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