Romania

III - Changes to Constitutional Law

Nature national instruments
III.1
What is the character of the legal instruments adopted at national level to implement Euro-crisis law (constitutional amendment, organic laws, ordinary legislation, etc)?

Euro-crisis law has primarily been implemented through ordinary legislation (e.g. the Fiscal Responsibility Law). In some cases, the Government adopted the implementing legislation using the Emergency Ordinance procedure adopting legal acts with the same power as ordinary laws issued by the Parliament, subject to the subsequent approval of Parliament. In other cases, the Government subjects measures to a confidence vote procedure (see on this procedure in Romania section III.9) before the united chambers of the Parliament for the legislative proposals, thus enabling the Parliament to approve the act before coming into force, but without the possibility to amend it, only to approve or reject it. In both instances the adopted acts have the legal force of an ordinary law in the national legal system, being assimilated to the ‘law’ as normative act of the Parliament.

Please refer to section III.9 below.

Constitutional amendment     
III.2     
Have there been any constitutional amendments in response to the Euro-crisis or related to Euro-crisis law? Or have any amendments been proposed?

Two constitutional revisions were initiated during the crisis period – in 2011 and 2014. The 2014 constitutional revision proposal is currently pending in the Parliament.

On the political context of these revision proposals, see section I above.

The first, 2011 constitutional reform was initiated by the President on the proposal of the Government after the positive results of the consultative referendum of November 22, 2009 on transition to unicameral parliament and reduction of MP seats to a maximum of 300. The President, exercising the attributes stipulated in Article 90 of the Constitution, initiated the referendum.[1] As the referendum was only a consultative one, a revision of the constitution had to be initiated to enforce its results (see section III.4 below). The constitutional legislative project of 2011 did not limit the revision proposal to the number of Parliament chambers and seats, but put forward an extensive constitutional reform, intending the amendment of more than 60 articles out of the current 156.[2]

Several proposed amendments are relevant from a Euro-crisis law perspective.

First, on Article 138 – ‘National public budget’ the amendment proposed the change of paragraph 2 as follows: ‘The Government prepares the drafts for the State budget and for the State social security budget on an annual basis, which are submitted to the institutions of European Union after informing the Parliament on their content’.[3] [author’s translation from Romanian].

Second, the inclusion of a new Article 138-1 entitled ‘Financial policy’ was proposed to enshrine the balanced budget principle at the constitutional level. It reads:

‘(1) The State must avoid an excessive budget deficit. The budget deficit cannot be higher than 3% of GDP and public debt may not exceed 60% of domestic GDP.

(2) Foreign loans may only be contracted in the area of investments.

(3) In the event of a natural disaster or exceptional situations with negative impact on public finances, the maximum ceilings set out in paragraph (1) can be exceeded, with the consent of the majority of Members of Parliament, only if the excess can be compensated up to a period of three years.

(4) Notwithstanding the provisions of paragraph (2) to prevent consequences of natural disaster or other serious disasters, with the consent of the majority of members Parliament other foreign loans can be contracted.’ [author’s translation from Romanian].

The Constitutional Court exercised an ex officio constitutional review of the 2011 legal proposal, pursuant to Article 146(1) a) of the Constitution.[4]

The Court found the proposed amendment of Article 138, regarding the obligation to submit the draft budgets to the European Institutions “excessive and redundant”.[5] The Court criticised the opportunity of constitutionalising the sole obligation of ‘submitting’ the draft budgets to the EU Institutions and held that as a full member of the EU Romania exercises together with other Member States the competences delegated to the EU pursuant to the founding treaties and no further regulation at the constitutional level was necessary in this respect.[6]

When it comes to the Balanced Budget provision of the proposed Article 138-1, the Court found that the provisions are constitutional and necessary as they re-state the obligations undertaken by Romania under the Stability and Growth Pact; equally, the Court notes that the obligations are part of the Treaty on the Functioning of the European Union and Article 126 thereof, as well as Protocol 12. Most importantly, the Court found that the proposed provisions do not infringe Article 152 on the limits of revision that prohibit any revision of the provisions touching upon the independent character of the Romanian state.[7]

The Chamber of Deputies rejected the aforementioned constitutional review project in May 2013 due to lack of political support.[8] The proposal, as emanating from the former Boc Government (PDL) and the President was highly unpopular with the governing coalition (at the time USL) and did not get the necessary constitutional law quorum (two thirds of the MPs) therefore it was not submitted to a referendum according to Article 151 (1)-(3) of the Constitution.

In February 2013, another constitutional reform was initiated. This time, the reform was supported by the majority coalition (USL). A Commission on the revision of the constitution was set up to draft the constitutional legislative proposal.[9] Onwards a constitutional forum was set to ensure a transparent process of public consultation.[10]

In 2014 the legislative proposal was formally registered with the Parliament, the Senate – the first Chamber invested with the constitutional reform legal project.[11] Compared to the 2011 revision project, the 2014 proposal has a wider scope, envisaging 128 amendments touching upon the vast majority of the Constitutional provisions currently in force.[12]

The priorly proposed Article 138-1 ‘Financial policy’ proposing the constitutionalisation of the Balanced Budget principle was not kept in the 2013 constitutional proposal.

The proposed amendment of Article 138 (2), which attempts the constitutionalisation of the obligation of the Government to submit the annual budget law proposal to the EU Institutions has maintained the same formulation: “The Government prepares the drafts for the State budget and for the State social security budget on an annual basis, which are submitted to the institutions of European Union after informing the Parliament on their content.” [author’s translation from Romanian][13]

In February 2014, the Constitutional Court exercised an ex officio control of the new proposal on the revision of the Constitution. The Court re-stated its 2011 reasoning on Article 138 (2), concluding that the amendment appears “excessive and redundant”.[14]

Constitutional context  
III.3
If national constitutional law already contained relevant elements, such as a balanced budget rule or independent budgetary councils, before the crisis that are now part of Euro-crisis law, what is the background of these rules?

The 1991 Constitution of Romania, as revised in 2003 and currently in force, contains only one provision coming close to a balanced budget rule stated in art. 138 (5): “no budgetary spending can be approved without establishing the financing source’’.

In 2011, a constitutional amendment proposing the inclusion of a Balanced Budget Rule, enjoyed the favourable opinion of the Constitutional Court in 2011, however the project did not pass in Parliament. The Budget Balance Rule was implemented by national ordinary law in 2013. See section II.2 above and section IX.4 below.

Constitutional provisions on an independent budgetary council are neither present nor have they been envisaged by the two constitutional reform proposals (section III.2 above). The Fiscal Council established in mid-2010 is part of Euro-crisis law in Romania, but was not introduced into the Constitution (please refer to section VII.5 below).

Purpose constitutional amendment       
III.4
What is the purpose of the constitutional amendment and what is its position in the constitution?

According to Title VII of the Constitution of Romania, the revision of the Constitution may be initiated by the President on the proposal of Government, by two-thirds of the deputies or senators or by 500.000 citizens with voting rights. The project is submitted to the two Chambers of the Parliament (Article 150). These may adopt the proposal by two thirds of the members of each Chamber (Article 151 (1)). In case of dissent on the content of the revision proposal the United Chambers may adopt the revision proposal with a three-fourths majority (Article 151 (2)). The revision is final after the approval of the Romanian citizens by referendum, organised in the next 30 days following the decision of the Parliament (Article 151 (3)).

Article 152 enshrines the limits of constitutional revision. Pursuant to the article, the constitutional provisions on the “national, independent, unitary and indivisible character of the Romanian state, republican form of government, territorial integrity, independence of justice, the political pluralism and official language” may not form the object of revision. Equally, any revision that would hamper the fundamental rights and liberties as guaranteed by the Constitution is prohibited. The revision is also not allowed during a state of emergency and other crisis situations.

The present Constitution of Romania was adopted in 1991 and has been amended once since, in 2003, in the view of accession to the European Union (the ‘EU’) and to the North Atlantic Treaty Organization (the ‘NATO’).[15]

Since the start of the crisis, there were two different constitutional revision projects, none of them adopted until the present stage (see sections III.2 above).

The broad genesis of the two constitutional revisions is found in the political instability and rivalry between the central political institutions that culminated with several severe constitutional crises in the last decade.

As already mentioned above (section I), the constitutional architecture of Romania lays down a challenging avenue for political institutions when on different sides of the political spectrum. One should mention the suspension of the President in 2007 and 2012, the constant conflicts between the Parliament and the Government that led to multiple Government changes, the political unrest between the President and the Parliament and the present open conflict between the President and the Prime Minister (the forthcoming presidential elections of November 2014 are highly important in this sense).[16] In this context, the Constitutional Court exercised the role of an ‘arbiter’ being called to rule on the conflicts of constitutional nature and of a legal nature more than sixteen times from 2008 to 2013.[17] Recently, in May 2014, the Court has been called again to mediate the claimed constitutional conflict between the President and the Prime Minister.[18]

On the political context, please refer to section I above.

Beyond the broad background context, each revision was triggered by specific circumstances.

The first constitutional review project was fed by the positive results of the 2009 referendum, initiated by the President. The President consulted the Romanian people on the reform of the Parliament. The reform of the Parliament as an institution proposed a double limitation. First a limitation of the Chambers – from a bi-cameral to a unicameral Parliament; second, the limitation of the seats to 300 (of the current number of 584). After the positive results of the referendum on both limits, a constitutional revision was then initiated by the President on the proposal of the Government. During the process, the legislative project on the revision of the constitution reached a much larger scope than that of merely implementing the referendum results, including the constitutional provisions on financial and budgetary policy, presented in section III.2 above.

The second constitutional review was initiated by the USL parliamentary majority in response to the major constitutional crisis of July 2012, described in section I above. Following the recommendations of international and EU institutions, notably the Council of Europe’s Venice Commission,[19] the European Commission[20] and the European Council,[21] the 2012 USL Government put the constitutional revision on top of the agenda. The revision was also fed by the USL Government territorial decentralisation reform project and the inclusion of the ‘region’ as a territorial-administrative unit to complete the existing ones: the county, the town and the commune.[22] The USL parliamentary majority supported the Government’s agenda. The constitutional legislative proposal is currently pending in the Parliament, more specifically in the Senate, awaiting the report of the specialised Committee on the revision of the constitution.[23]

As seen above (section III.2), in the context of both projects for the revision of the Constitution the euro-crisis amendments have a rather ancillary nature, especially in the text of the last 2014 project. The main discussions and public debates are centred upon an equilibrated political institutional architecture and the sensitive territorial-administrative organisation issue.

It must be stressed that following the USL coalition’s fall in February 2014, there is currently no clear qualified parliamentary majority to support the constitutional review. As well, in April 2014 the Constitutional Court declared the proposed project unconstitutional in more than twenty-four instances.[24]

Relationship with EU law          
III.5
Is the constitutional amendment seen as changing the relationship between national and European constitutional law?

For the time being, there is no constitutional amendment adopted after 2003. The 2013 constitutional revision process presented in section III.2 and III.4 above is currently at an incipient stage. The final revision and approval by referendum shall take substantial time, depending greatly on political support. The Constitutional revision project contains relevant elements concerning the relationship between EU law and national law.

Namely, a proposal regarding the change of Article 148 ‘Accession to the European Union’ dealing with the relationship between national and European law was listed (the so-called ‘accession clause’). The change is meant to update the constitutional provision and formalise the EU Member State status of Romania, as of January 1st 2007 (the ‘membership clause’).

The proposal puts forwards the following changes:

Constitution of 1991 revised in 2003

Constitution revision proposal 2013

Title VI ‘Euro-Atlantic Integration’

Title VI ‘The Membership of Romania to the European Union and North Atlantic Treaty Organization’

Article 148 Integration into the European Union

Article 148 Integration into the European Union

 (1) Romania’s accession to the constituent treaties of the European Union, with a view to transferring certain powers to community institutions, as well as to exercising in common with the other member states the abilities stipulated in such treaties, shall be carried out by means of a law adopted in the joint sitting of the Chamber of Deputies and the Senate, with a majority of two thirds of the number of deputies and senators.

(1) Ratification of the treaties that amend or complete the constituent treaties of the European Union and the treaties through which The North Atlantic Treaty is modified or supplemented, is made by a law passed in a joint session of the Chamber of Deputies and the Senate, by a vote of two thirds of the Deputies and Senators.

 (2) As a result of the accession, the provisions of the constituent treaties of the European Union, as well as the other mandatory community regulations shall take precedence over the opposite provisions of the national laws, in compliance with the provisions of the accession act.

(2) Romania shall ensure compliance, within the national legal order, of the European Union law obligations under the Act of Accession and the other treaties signed in the Union.

(3) The provisions of paragraphs (1) and (2) shall also apply accordingly for the accession to the acts revising the constituent treaties of the European Union.

 

(4) The Parliament, the President of Romania, the Government, and the judicial authority shall guarantee that the obligations resulting from the accession act and the provisions of paragraph (2) are implemented.

 

(5) The Government shall send to the two Chambers of the Parliament the draft mandatory acts before they are submitted to the European Union institutions for approval.

 

Source: Proposal L233/07.04.2014 and Article 148 Constitution [author’s translation from Romanian]

As to the substance of the amendment, the proposed amendment of Article 148 paragraph 2 was seen by the Constitutional Court as changing fundamentally the relationship between national constitutional law, on the one hand and EU law, on the other. As such, by decision 80/2014, the Constitutional Court declared the proposed amendment unconstitutional as being contrary to the provisions of Article 152(2) of the Constitution – ‘The limits of revision’: “no revision shall be made if it results in the suppression of the citizens’ fundamental rights and freedoms, or of the safeguards thereof”.[25]

In fact, the current Article 148 paragraph 2 states that the EU treaties and other binding EU law provisions: “shall take precedence over the opposite provisions of the national laws”. The proposed revision does not retain the formulation “national law” stating at the general level that: “Romania shall ensure compliance, within the national legal order, of the European Union law obligations”. As such, the proposed text encloses in the notion ‘national legal order’ also the Constitution and the provisions thereof. The change was considered problematic by the Constitutional Court. In this sense it held that:

“461. Therefore, to accept the new wording proposed at Article 148 (2) would amount to the creation of necessary premises allowing the limitation of the jurisdiction of the Constitutional Court, in the sense that the only acts that are adopted in areas not subject to the transfer of competences to the European Union would still be subject to constitutional review, whereas the normative acts […] adopted in the areas of shared competences, would be subject exclusively to the legal order of the European Union, being excluded from constitutional control. Nevertheless, irrespective of the area of legal acts, they must respect the supremacy of the Constitution of Romania, according to Article 1 para. (5).

462. Therefore, the Court finds that such a change would constitute a restriction of the citizens right to constitutional justice, to defend certain constitutional values, rules and principles, namely the suppression of a guarantee of these constitutional values, rules and principles, which also include the sphere of rights and fundamental freedoms.” [author’s translation from Romanian, Decision 80/2014, published in Official Journal 246 of 07.04.2014]

Other proposed provisions of the Article 148 ‘membership clause’ remain substantively largely the same, however the framing is more succinct and general, compared to the prior explicit and detailed formulation. As well, the reference to specific institutions is avoided (see comparative table above).

More specifically:

The amendment of the first paragraph is imminent. Currently it has no legal value for the future of Romanian constitutional law, because it refers to the process of accession, which already took place in 2007. Equally, the proposed provisions retain the qualified majority rule (two thirds of the MP’s) for the ratification of treaties that amend or complement the constituent treaties of the European Union.

The provisions of the current paragraph 3 are included in the proposed paragraph 1.

The provision of paragraph 4, mandating the Government to send to Parliament the draft of binding acts before their submission to the EU institutions is repealed. However, the Parliament is still consulted based on the subsidiarity principle enshrined in the Protocol 2 as included by Lisbon treaty.

For the time being, the constitutional revision project is still pending in the Parliament, subject to further substantive revisions and debates. As soon as a final formulation of the revision proposal is reached, and possibly after another constitutional review, the law on the revision of the constitution shall be eventually submitted to a national referendum.

Organic law   
III.6
Have there been changes to organic laws or other types of legislation that are of a different nature or level than ordinary legislation, in relation to Euro-crisis law or the budgetary process?

The Romanian legal system provides for three categories of laws: constitutional, organic and ordinary. The constitutional laws concern the revision of the Constitution, are adopted by qualified majority of two-thirds of the members of each Chamber of the Parliament and are subject to subsequent approval by referendum. The organic laws are adopted by absolute majority – the vote of fifty per cent plus one of the members of each Chamber. The ordinary laws are adopted by simple majority – of fifty per cent plus one of the present members of each Chamber (Constitution of Romania Articles 73 and 76).

The euro-crisis law implemented by Romania did not fall into the areas of organic law as regulated by Article 73 (3) a)-s) of the Constitution. The law related to the Euro-crisis has primarily been implemented through ordinary legislation.

In some cases, the Government adopted the legislation by emergency ordinance procedure (see section III.9 below), adopting legal acts with same power as ordinary laws issued by the Parliament, subject to the subsequent approval of Parliament (Article 115(4)-(5) Constitution).

In other cases, the Government ‘assumed responsibility’ by subjecting measures to a confidence vote procedure before the United Chamber of Deputies and the Senate for legislative proposal (Article 114 Constitution). Thus, the Parliament was left with two options: either tacitly accept the act before its entry into force, without the possibility to amend it or dismiss the Government by adopting a motion of no confidence (see section III.9 below).

The bills adopted according to the above mentioned special legislative procedures are assimilated to the laws as legal acts of the Parliament and have the same legal force, even if of different types:

  • Laws adopted by the Parliament (Article 76 Constitution);
  • Government Emergency Ordinances adopted by the Government through legislative delegation, subsequently approved by Parliament (Article 115 (4) Constitution);
  • Laws adopted by the Parliament on Government proposals after the Government ‘assumed responsibility’ (that is, subjects measures to a confidence vote procedure), without the possibility for the Parliament to amend the proposals (Article 114 Constitution).

Constitutional amendment and ordinary law       
III.7
If ordinary legislation was adopted in conjunction with a constitutional amendment, what is the relationship between the two?

For the time being, there is no constitutional amendment adopted after 2003, by consequence there is no amendment in relation to Euro-crisis law or the budgetary process. All the ordinary legislation adopted in relation to Euro-crisis law or the budgetary process is referred to and discussed in the answers given to the following questions at section X below.

The 2013 amendment of the Fiscal Responsibility ordinary law introduced the Balance Budget Rule (see section IX.4 below), however the relating constitutional amendment proposed in 2011 was not kept in the 2014 constitutional revision proposal.

Perception source of legal change 
III.8
In the public and political discussions on the adoption of ordinary legislation, what was the perception on the appropriate legal framework? Was the ordinary legislation seen as implementing national constitutional law, or Euro-crisis law?

The political debates regarding the legal instruments for the adoption of euro-crisis law were widely framed around two special procedures – emergency ordinances and so-called ‘engagement of responsibility’ – used by the Government to pass legislation on the austerity measures. The euro-crisis legislation adopted according to the two mentioned procedures was equivalent to ordinary law as the bills did not fall within the area of organic law (Article 73 Constitution).[26]

Please see also section III.9 below.

The ordinary legislation was seen as implementing Euro-crisis law. The state institutions, including the President, the Government, the Parliament and the Constitutional Court stated expressly and all accepted the economic redress multilateral programme and the adjustment legislation as emanating from the International Financial Institutions, notably the IMF. The link with the EU was not so clearly emphasised. All Governments invested after the multilateral loan was contracted by Romania in 2009 stated their political commitment to the obligations undertaken under the financial assistance agreements with the IMF, World Bank and European Commission. The Constitutional Court further qualified the economic instabilities as a serious threat to national security. As such, the agreement with the International Financial Institutions and the European Commission was considered necessary to address this threat.[27]

When passed by ordinary legislative procedure the fundamentation note (document supporting the legal proposal stating the legal, political, economical considerations for adopting a legal act) of the legal proposals expressly stated the Euro-crisis measures as the reason for legislative intervention – as was for instance the case of the 2013 reform of the Public Finances law and Fiscal Responsibility law (see section II above).

The parliamentary debates during the 2009-2012 period usually expressed the discontent of the opposition regarding the austerity measures adopted without consultation of the Parliament.[28] One could mention, for instance, the constitutional conflict between the Parliament and the Government on the education law, passed by the so-called ‘responsibility engagement procedure’ (see section III.9) even if the law was under parliamentary debate.[29] The opposition’s criticism also addressed the choices of the Government, as for instance the cut of salaries and pensions. One of the many reasons for dismissal in April 2012 of the Government led by Prime Minister Ungureanu was the Government’s engagement to adopt the Fiscal Compact without due consultation of the Parliament (on the Fiscal Compact see section IX below).[30] It must be stressed that the critiques were mainly political as none of the emergency ordinances were overturned by the Parliament in an ex post legislative control. This confirms the conclusion that the Romanian politicians usually see the Euro-crisis law as mandatory, without stressing the constitutional balance between national prerogatives and EU authorities.[31] This state of facts has multiple causes, one of them being the dependency of Romania on the EU financial support. Also, in a country subdued by constant political ‘battles’ between the President and the former opposition (see section I above), every one of the main political figures saw an opportunity to gain advantage by winning the popularity and support of the western leaders. After the parliamentary elections of December 2012, the USL coalition got an overwhelming parliamentary majority. As the Government and the parliamentary majority were on the same side of the political spectrum, Euro-crisis legislation was increasingly passed directly through Parliament from 2012 onwards, however the emergency ordinances culture is still frequently practiced as it is so deeply rooted in the Romanian decision making modus operandi.

As for the general public perception, in Romania there was no relevant wider public debate regarding the adoption of Euro-crisis law or the appropriate legal instruments to be employed. Generally, before the first austerity package measures were agreed with the IMF and the MOU with the EU, both in 2009, public opinion was largely unaware of the euro-crisis threat. During the parliamentary electoral campaign of 2008 citizens were reassured that Romania was not in crisis. The harsh economic adjustment measures of 2009 and 2010 came as an avalanche for public opinion followed by a dramatic fall of popularity in the polls of the President and the PDL Government.

In Romania usually the national leaders were seen as the ones to blame. As such, there was no strong public opinion questioning the decisions taken at the EU level. The EU and the International Financial Institutions were seen as the solution for the mistakes of the Government.

Even if slightly in decline during the deepest economic downturn Romanian public opinion remained supportive when it comes to EU. The spring 2014 Eurobarometer shows that Romania is the Member State with the highest raise in trust towards the EU compared to the 2013 period (+10%).[32] Similarly, the public perception on the image of the EU has improved by 12% – again, the highest score compared to other EU Member States.[33] On the other hand, the perception of the national employment and economic avenues is constantly pessimistic.[34] The contrast in public perception when comparing the EU and national situation was examined in a recent study, which explains that: “[t]he paradox is only apparent and it can be explained by one distinctive feature of the Romanian public opinion. Since EU accession, Romanians have pictured the EU as a saviour and as a safe haven. This frame still lingers in the collective memory, fuelled by a chronic discontent with the national political class and a tendency towards self-victimization”. [35]

Miscellaneous
III.9
What other information is relevant with regard to Romania and to changes to national (constitutional) law?

Government Emergency Ordinances – an ordinary extraordinary procedure

As mentioned in section III.8 above, the vast majority of crisis-driven legislation was passed through Government Emergency Ordinances.

The instrument as enshrined in Article 115 (4)-(8) of the Romanian Constitution is designed as an extraordinary procedure, meant to address the situations that allow no postponement of legislative action. A bill passed in the form of a Government Emergency Ordinance enters into force after notification of the Parliament and publication in the Official Journal. Subsequently, the Parliament adopts a law of approval or rejection of the ordinance within thirty days form the notification by the Government. If the first notified chamber of the parliament fails to examine the legal initiative on the approval of the Emergency Ordinance within a thirty days period, the law is considered adopted and passes automatically to the other chamber for approval. When an Emergency Ordinance concerns matters of organic law, it must be approved with the majority provided for the latter, as prescribed by Article 76 (3) of the Constitution. Government Emergency Ordinances have a limited scope and these are not to be adopted in the areas that touch upon the fundamentals of the constitutional system. Nevertheless, this has not always been respected.[36]

In spite of its extraordinary character, this tool has been used on an ordinary basis – both before and during the crisis period – well exceeding 100 emergency ordinances annually.[37] The Venice Commission has expressed concern regarding the excessive use of the procedure, recommending instead the use of delegated legislation pursuant to Article 115 (1) to (3) Constitution, which would allow a prior involvement of the Parliament, as well as a revision of the Parliament’s rules of procedure.[38] The use of Government Emergency Ordinances to ratify and implement multilateral financial assistance packages (please refer to sections X.3, X.4, X.5 below) raises important democratic legitimacy issues. However, it must be stressed that none of the financial assistance instruments ratified by way of Emergency Ordinance were subsequently blocked or brought into question by the Parliament on the occasion of ex post legislative control.

The ‘engagement of government responsibility’ procedure. Article 114 Romanian Constitution.

In addition to Government Emergency Ordinances, as the preferred option for passing crisis-led legislation, the so-called ‘engagement of government responsibility’ is another procedure, which has known an unprecedented active use. The procedure enshrined in Article 114 of Romanian Constitution states that the Government may engage its responsibility in front of the Parliament regarding a programme, declaration or a bill. In this case, the bill is considered adopted in 3 days if the Parliament does not pass a motion of censure (vote of no-confidence) against the Government.

Since 2008, the procedure was used more then 13 times for passing core crisis-driven measures, including the amendment of the pensions law, the social dialogue law, the labour code, the national framework act on wages, the maternity leave act, the military pensions act, the public education law et al. Basically, the procedure was used when the emergency ordinance was not feasible or desirable.

In contrast with Government Emergency Ordinances, the acts adopted by engagement of Government responsibility are not followed by ex post parliamentary control. They are automatically adopted if no motion of censure is formulated and successfully passed by the Parliament, acting by absolute majority (fifty per cent plus one of the members of the two chambers) within 3 days after the engagement of responsibility. The procedure gives insurance that the adopted measured shall not be overturned by the Parliament in an ex post control as the case may arrive for Government Emergency Ordinances.

The frequent use of the procedure during 2010-2011 was criticised by the opposition as a way to by-pass the legislator.[39]

In response to the extensive use of the Government responsibility procedure, both projects for the revision of the Constitution (section III.2 and III.4 above) proposed a limitation of the use of the procedure to one engagement of responsibility per legislative session. The Constitutional Court has further advised the limitation to ‘one engagement of responsibility per legislative session corresponding to a single domain’.[40]

[1] Article 90 (1) Constitution: The President of Romania may, after consultation of Parliament, ask the people of Romania to express their opinion on matters of national interest, by referendum. [author’s translation from Romanian]

[2] For the full constitutional revision proposal and findings of the Constitutional Court, see Decision 799/2011 of the Constitutional Court of Romania, Official Journal 440/23.06.2011, available in Romanian at: http://www.ccr.ro/files/products/D0799_11.pdf

[3] Constitution of Romania, Article 138 (2): ‘The Government prepares the drafts for the State budget and for the State social security budget on annual basis, and such are singly submitted to Parliament for approval’. For the English translation of the Constitution of Romania see: http://www.ccr.ro/constitutia-romaniei-2003

[4] Constitutional Court of Romania, Decision 799/2011, Official Journal 440/23.06.2011, available in Romanian at: http://www.ccr.ro/files/products/D0799_11.pdf

[5] Ibidem.

[6] Ibidem.

[7] Constitution of Romania, Article 152 (1): ‘The provisions of the present Constitution concerning the national, independent, unitary and indivisible character of the Romanian State, the Republican form of government, or territorial integrity, independence of judiciary, political pluralism, or official language may not be subject to revision.’ Full text available at: http://www.cdep.ro/pls/dic/site.page?id=371

[8] Legislative proposal on constitutional revision, File Pl-x 492/2011, available in Romanian at: http://www.cdep.ro/pls/proiecte/upl_pck.proiect?idp=12163

[9] Decision of the Parliament No 17/2013, Official Journal 95/15.03.2013.

[10] The official page of the forum is available in Romanian at: http://forumconstitutional2013.ro/ce-este-forumul-constitutional/

[11] Legislative proposal on the revision of Constitution of Romania, File No. PL nr. L233/2014, available at: http://www.cdep.ro/pls/proiecte/upl_pck.proiect?cam=1&idp=17422; See also the Opinion of Venice Commission on the draft law, 16 September 2013, available at: http://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2014)010-e

[12] For the complete constitutional revision project and the reasoning of the Court see: Constitutional Court of Romania, Decision 80/2014, Official Journal 246/07.04.2014.

[13] Constitutional Court of Romania, Decision 80/2014, Official Journal 246/07.04.2014

[14] Ibidem.

[15] Constitution of Romania, English, available at: http://www.cdep.ro/pls/dic/site.page?id=372&idl=1

[16] For a summary of the constitutional crises (Romanian) see the 2013 Report of the Constitutional Forum, pp.33-34, for Constitutional Court intervention to solve the constitutional conflicts of legal nature see: Table p.139, available at: http://forumconstitutional2013.ro/wp-content/uploads/2013/03/Raport-final-FC-1-iunie.pdf

[17] Ibidem, Table p.139.

[18] Constitutional Court, Decision 284/21.05.2014, available in Romanian at: http://www.ccr.ro/files/products/Decizie_284_20141.pdf

[19] Venice Commission, Opinion 685/2012, available at: http://www.venice.coe.int/webforms/documents/CDL-AD(2012)026-e.aspx#, consulted on 05.09.2014

[20] Report from the Commission to the European Parliament and the Council on the progress of Romania under the Co-operation and Verification mechanism as of 2007, available at: http://ec.europa.eu/cvm/docs/com_2013_47_en.pdf

[21] Speech of President Van Rompuy, European Council, Press release, Bucharest, April 25, 2013, available at: http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/ec/136946.pdf

[22] 2013 Report of the Constitutional Forum, fn 77, available at: http://forumconstitutional2013.ro/wp-content/uploads/2013/03/Raport-final-FC-1-iunie.pdf

[23] Legislative proposal on the revision of Constitution of Romania, File No. PL nr. L233/2014, available at: http://www.cdep.ro/pls/proiecte/upl_pck.proiect?cam=1&idp=17422

[24] Constitutional Court, Decision 80/2014 available in Romanian at: http://www.ccr.ro/files/products/Decizie_80_2014_opinii2.pdf

[25] Decision 80/2014, published in Official Journal 246 of 07.04.2014, available in Romanian at: http://www.ccr.ro/files/products/Decizie_80_2014_opinii2.pdf

[26] Constitution of Romania, Article 76(3):” Organic laws shall regulate: a) the electoral system; the organization and functioning of the Permanent Electoral Authority; b) the organization, functioning, and financing of political parties; c) the statute of Deputies and Senators, the establishment of their emoluments and other rights; d) the organization and holding of referendum; e) the organization of the Government and of the Supreme Council of National Defence; f) the state of partial or total mobilization of the armed forces and the state of war; g) the state of siege and emergency; h) criminal offences, penalties, and the execution thereof; i) the granting of amnesty or collective pardon; j) the statute of public servants; k) the contentious business falling within the competence of administrative courts; l) the organization and functioning of the Superior Council of Magistracy, the courts of law, the Public Ministry, and the Court of Audit; m) the general legal status of property and inheritance; n) the general organization of education; o) the organization of local public administration, territory, as well as the general rules on local autonomy; p) the general rules covering labour relations, trade unions, employers’ associations, and social protection; r) the status of national minorities in Romania; s) the general statutory rules of religious cults; t) the other fields for which the Constitution stipulates the enactment of organic laws.

[27] Constitutional Court, Decision 872/2010, analysed at section X below

[28] Parliamentary debates, April 19, 2011, MP Calin Potor declaration (Romanian) “The assumption of responsibility? No, the neutralization of democracy and parliamentarianism”, [author’s translation] available at: http://www.cdep.ro

[29] Constitutional Court, Decision 1525/2010, Official Journal 818 of 07.12.2010.

[30] Parliament of Romania, United Chambers, session of 27 April 2012, Presentation of motion of censure, (Romanian), available at: http://www.cdep.ro/motiuni/2012/1468.pdf

[31] http://www.ziare.com/politica/politica-externa/romania-si-sindromul-copilului-abandonat-1224533

[32] Standard Eurobarometer 81 of Spring 2014, p.94.

[33] Ibidem., p. 98.

[34] Ibidem., p.33-43.

[35] Alina Bârgăoanu, Flavia Durach – The Crisis of the European Union and its Reflection in the Romanian Public Sphere. Recent Findings, Romanian Journal of European Affairs Vol. 13, No. 1, March 2013, available at http://www.ier.ro/documente/rjea_vol13_no1/RJEA_2013_vol13_no1_art.1_.pdf

[36] See: Emergency Ordinance 38/2012 on the amendment of the law on the functioning of the Constitutional Court. Venice Commission, Opinion 685/2012, available at: http://www.venice.coe.int/webforms/documents/CDL-AD(2012)026-e.aspx#, consulted on 05.09.2014, paras. 9-29.

[37] According to the data of Legislative Bulletin of the Senate, available in Romanian at: http://www.senat.ro/index.aspx?Sel=E41323AD-273F-4449-BD0C-78D144CFEDB5

[38] Venice Commission, Opinion 685/2012, available at: http://www.venice.coe.int/webforms/documents/CDL-AD(2012)026-e.aspx#, consulted on 05.09.2014, para. 79.

[39] Parliamentary debates, April 19, 2011, MP Calin Potor declaration (Romanian) “The assumption of responsibility? No, the neutralization of democracy and parliamentarianism”, [author’s translation] available at: http://www.cdep.ro

[40] Decision 799/2011; Decision 80/2014, published in Official Journal 246 of 07.04.2014, available in Romanian at: http://www.ccr.ro/files/products/Decizie_80_2014_opinii2.pdf, paras 334-337,.