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September 25, 2021

Ombudsman challenges Administrative Code ordinance in Constitutional Court

The Ombudsman announced on Wednesday having notified the Constitutional Court of the exception of unconstitutionality of the Government’s Emergency Ordinance (OUG)  No. 57/2019 on the Administrative Code.

In the plea of unconstitutionality filed with the Constitutional Court, the Ombudsman argues that OUG No. 57/2019 does not meet the Constitution’s requirements regarding the delegation of legislative powers, as developed through the Constitutional Court’s case law.

“Having examined the regulatory act, the Ombudsman found, inter alia, that the ordinance regulates certain aspects which are unrelated to and are in no way interdependent with the reasons invoked by the government as arguments for the urgency and extraordinary character of the situation that justifies the adoption of such an ordinance. The Ombudsman considers that this is an inadequate way to settle the situation of Romania’s central and local public administration, as the legislative mechanism of the emergency ordinance has a special regime, which should be used only in extraordinary, urgent situations the regulation of which cannot be delayed. Or, the situation that led to the adoption of this emergency ordinance is already well known and has been subject to several previous legislative initiatives, of which the latest was initiated in Parliament in 2018 (PL-x No. 369/2018 Bill regarding the Administrative Code of Romania), and which was stopped in its tracks by the final rejection of the bill in the Chamber of Deputies,” the Ombudsman argues.

He also notes that the ordinance runs counter to the constitutional provisions of article 69 regarding the representative mandate, of article 109 regarding the accountability of government members, and of article 111 paragraph (1) regarding the parliamentary control of the government’s activity.

According to the cited source, OUG No. 57/2019 also runs counter to article 115 (6) of the Constitution, as it affects the regime of the state’s fundamental institutions, in this specific case, the government.

“Having looked at the new legislative solution, the Ombudsman found that the incompatibility requirement has been removed from the general requirements for the office of government member, which produces negative consequences by weakening the status of the members of the government and of the institution as a whole. Removing the requirement that nobody in a situation of incompatibility should hold such office may lead to situations where a person who has been disqualified from holding a public office or dignity, as per the enforcement of Law No. 176/2010, is appointed as a member of the government only to be removed later on, when the ban is being acknowledged. Similarly, providing a 15-day term after the appointment in office for moving out of the situation of incompatibility negatively affects the credibility of a fundamental state institution, as it allows the initiation of the constitutional procedures provided for in articles 103-104 (involving the President of Romania, the Prime Minister and Parliament), for scrutinizing someone found in a situation of incompatibility,” the Ombudsman concludes

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