Irina Alexe, Constantin-Mihai Banu, Transposition and/or implementation of European Union law by means of Government emergency order. Requirements set in the case-law of the Constitutional Court of Romania, Curentul juridic, Year XVIII, NO. 2 (61) 2015, 49-5
The article critically discusses the perspective of the Constitutional Court of Romania concerning the practice of using Government emergency orders (acts regulated by Article 115 of the Constitution of Romania) in order to transpose European Union directives or to implement provisions of European Union law into Romanian law.
1. PRELIMINARY REMARKS
Article 115 (“Legislative delegation”) of the Constitution of Romania (of 1991 in its version amended in 2003) provides for the constitutional framework under which the Government is authorized to issue orders – “simple” orders, meaning according to requirements established by an Act of the Parliament, and emergency orders. Paragraphs (1)-(3) of the said article deal with the requirements concerning “simple” orders, while paragraphs (4)-(8) of Article 115 regulate the conditions for issuing emergency orders. According to paragraph (4), “[t]he Government can only adopt emergency orders in exceptional cases, the regulation of which cannot be postponed, and have the obligation to give the reasons for the emergency status within their contents”. Important procedural requirements are set out at paragraph (5), while paragraph (6) provides that “[e]mergency orders cannot be adopted in the field of constitutional laws, or affect the status of fundamental institutions of the State, the rights, freedoms and duties stipulated in the Constitution, the electoral rights, and cannot establish steps [i.e. measures] for transferring assets to public property forcibly.”
Could a directive be transposed into Romanian legal order by means of Government emergency order? And in a broader context: could provisions of European Union law be implemented by Government emergency order? Are the prospects for initiating actions for failure to fulfil obligations (i.e. infringement proceedings) by the European Commission and/or before the Court of Justice of the European Union grounded enough to substantiate the reliance to this type of legislative delegation? The following article discusses certain decisions rendered by the Constitutional Court of Romania (hereinafter “the Constitutional Court” or “the Court”) in that regard.
This short note is divided as follows: section 2 discusses early decisions of the Constitutional Court of Romania issued prior to Romania’s accession to the European Union or regarding circumstances occurred soon after that time. Section 3 assesses decisions given by the Constitutional Court since the accession, in which the Court stated that the Parliament should be the primary (i.e. “default”) legislator and elaborate criteria that need to be met when issuing Government emergency orders. Section 4 comprises few conclusions on the issue whether in this field – issuing Government emergency orders for complying with the European Union duties – the Constitutional Court of Romania carries out a satisfactory constitutional review.