Relevant provisions
The constitutional review of laws before promulgation, also called the a priori constitutional review is regulated by the provisions under Article 146 a) first sentence of the Constitution and by Articles 15-18 of Law no. 47/1992. It is an abstract and direct review, exercised only upon request from certain qualified authors.
Authors of the referral
The Constitutional Court shall adjudicate on the constitutionality of laws before their promulgation, only upon referral from:
– the President of Romania;
– one of the presidents of the two Chambers;
– the Government;
– the High Court of Cassation and Justice [pursuant to Article 25 c) of Law no.304/2004 on courts organisation, the High Court of Cassation and Justice is reunited in Joint Sections in order to refer the Constitutional Court in view of checking the constitutionality of laws before promulgation];
– the Advocate of the People (holder of the right to refer the Constitutional Court on matters of constitutional review of laws before promulgation, following the revision of the Constitution in 2003);
– at least 50 Deputies;
– at least 25 Senators.
The Court established in its case-law that referrals signed by fewer Deputies, respectively Senators, shall not be deemed legal. To this effect, see Decision no.73/1995 and Decision no. 35/1996).
Subject matter of the referral
The subject matter of the a priori constitutional review can be ordinary laws and organic laws, before promulgation.
Laws already in force, bills, legislative proposals and amendments cannot constitute the subject matter of the constitutional review regulated by the provisions under Article 146 a) first sentence of the Constitution.
Referral to the Constitutional Court
The referral made by MPs shall be sent to the Constitutional Court on the same day when it was received, by the Secretary General of the respective Chamber.
Procedure
In order to exercise the right to submit a case to the Constitutional Court, the law shall be remitted to the Government, to the High Court of Cassation and Justice, as well as to the Advocate of the People, and it shall be handed in to the Secretary General of the Chamber of Deputies and of the Senate, five days before it is presented for promulgation. If the law has been passed under an expeditious procedure, the time limit shall be two days.
The date on which the bill has been handed in to the Secretaries General of the two Chambers shall be brought to the notice of the plenary of each Chamber within twenty-four hours from its registration. The handing in and the notification shall be made only on the days in which the Chambers of Parliament sit in plenum.
The President of the Constitutional Court, having received the act of reference, shall designate the Judge-Rapporteur and the assistant-magistrate, by his dated signature, and shall set the date of the hearing.
In case an institution of proceedings has been made by one of the Presidents of the two Chambers of Parliament, by the Members of Parliament, by the Government, by the High Court of Cassation and Justice, or by the Advocate of the People, the Court shall communicate the act on the case thus received to the President of Romania, on the day of its registration.
If the institution of proceedings was made by the President of Romania, by the Members of Parliament, by the High Court of Cassation and Justice, or by the Advocate of the People, the Constitutional Court shall communicate such to the Presidents of the two Chambers of Parliament and the Government within twenty-four hours from the registration, also specifying the date when the debates are to take place.
If the institution of proceedings was made by one of the Presidents of the two Chambers of Parliament, the Constitutional Court shall communicate such to the President of the other Chamber and to the Government, as well as to the Advocate of the People, and if the institution of proceedings was made by the Government, the Court shall communicate it to the Presidents of the two Chambers of Parliament, as well as to the Advocate of the People, also specifying the date when the debates are to take place.
The Presidents of the two Chambers of Parliament, the Government and the Advocate of the People may present their point of view in writing, by the date of the debates. Government’s point of view shall bear the signature of the Prime Minister.
The debates shall take place in the plenum of the Constitutional Court, on the basis of the act on the case submitted to the Court and of the viewpoints received and shall concern both the provisions mentioned in the act of reference, and those which, necessarily and obviously, cannot be dissociated therefrom.
Type of act issued
Within this power, the Court renders, pursuant to the provisions of Article 11 (1) A. a) of Law no.47/1992, a decision. The decision shall be taken by the majority vote of the Court’s judges.
Communication of the decision
The decision by which the unconstitutionality of the law has been established shall be communicated to the Presidents of the two Chambers of Parliament and to the Prime-Minister.
The decision rendered by the Court shall be communicated to the President of Romania to avoid promulgation of a law that was declared unconstitutional, and whether the impugned legal provisions were found constitutional, so that the President may promulgate the law within 10 days as from the date when the decision of the Court was communicated to him.
Effects of the decision
If the law is declared unconstitutional, pursuant to Article 147 (2) of the Constitution, Parliament must re-examine those provisions in order to bring them into line with the decision of the Constitutional Court.
All decisions rendered based on this area of jurisdiction, grouped per years, may be accessed here