I. At its sitting of 11 July 2024, as part of the a priori constitutional review, the Constitutional Court ruled as follows:
– Unanimously,
1. It upheld the objection of unconstitutionality filed by the President of Romania and found that the legislative solution contained in the Sole Article of the Law approving Government Emergency Ordinance No 95/2014 with reference to Article I (10) of Government Emergency Ordinance No 95/2014 [with reference to Article 5 (5) of Law No 341/2004, as subsequently amended and supplemented], which excludes the possibility of preparing and sending proposals to the President of Romania for the conferral of the Order “Victory of the December 1989 Revolution”, as well as with reference to the provisions of Article I (17) of Government Emergency Ordinance No 95/2014 [with reference to Article 92 (8) of Law No 341/2004], were unconstitutional.
2. It dismissed, as unfounded, the objection of unconstitutionality and found that the legislative solution contained in the Sole Article of the Law approving Government Emergency Ordinance No 95/2014 with reference to the provisions of Article I (7), (8), (10), (17) of Government Emergency Ordinance No 95/2014 [with reference to Articles 4, 41, 5 (1) to (4), (6) and (7), and Article 92 (4) and (5) of Law No 341/2004, as subsequently amended and supplemented] was constitutional in relation to the pleas filed.
In essence, the Court states that the legal mechanism for conferring the “Victory of the Revolution of December 1989” Order by the President of Romania is currently inoperative because the regulation of the legal subject entitled to prepare and send to the President of Romania the proposals for conferring the above-mentioned order has been removed from the legislation currently in force. This removal does not meet the requirements related to the quality of laws and infringes upon the constitutional prerogative of the President of Romania of conferring decorations, in violation of Article 1 (5), Article 80 and Article 94 (a) of the Constitution.
The Court also found that the legislative solution regarding the sequence of procedural steps to be followed so as to grant the status and, subsequently, eventually, the title of Fighter with a Decisive Role, as well as in the case of withdrawal of this status and, respectively, of the title, violated the constitutional requirements of the quality of laws. Moreover, the rule creates confusion as regards the legal effects of the administrative acts issued in the administrative proceedings regulated by Article 92 of the law and is likely to hinder the exercise of the constitutional prerogative of the President of Romania of conferring titles of honour.
With regard to the granting of the capacity of Fighter with a Decisive Role, the Court held that the certificate of Fighter with a Decisive Role issued by the State Secretariat, following the admission of the applicant’s request, was an administrative act of an individual nature certifying a capacity necessary for being granted material benefits of a legal nature, this being “the only valid document necessary to benefit from the provisions of this law”. At the same time, the certificate issued confers upon its beneficiary the vocation of being awarded the honorary title of Fighter with a Decisive Role, by decree, by the President of Romania, upon proposal by the State Secretariat. According to Article 94 (a) and Article 100 of the Constitution, the President of Romania has the option of deciding to confer this title by decree, as a sign of the State’s gratitude towards those who fought for the victory of the Romanian Revolution of December 1989, provided that the request for the issuance of the certificate of Fighter with a Decisive Role is previously admitted.
In case of cancellation of the certificate or withdrawal, by administrative act, of the capacity of Fighter with a Decisive Role, the State Secretariat proposes to the President of Romania the withdrawal of the title awarded based thereupon. The Court held that, as long as the status granted by certificate no longer exists in the legal system, the President had the obligation to withdraw the title granted exclusively based on this status, by issuing a decree.
– Unanimously, it dismissed, as unfounded, the objection of unconstitutionality filed by 54 Deputies belonging to the Parliamentary Group of the Save Romania Union and non-affiliated Deputies, and found that the provisions of the Law on Consumer Protection regarding the total cost of lending and the assignment of receivables, in its entirety, and, in particular, the provisions of Article 1, Article 2 (b), Article 6, Article 10 (1) and Article 12 of the same law were constitutional in relation to the pleas filed.
In essence, the Court held the following:
– The impugned law complies with the constitutional principle of bicameralism, as there are no major differences in legal content and no significantly different configuration between the forms adopted by the two Chambers of Parliament.
– The legislator is competent to regulate a legal regime that deviates from positive law regarding the assignment of a debt made for the benefit of an assignee N.F.I., given that it is necessary to support a vulnerable category of consumers. At the same time, the legislator has the freedom to assess whether or not, at a certain moment in time, consumer protection measures are required, even if this creates a different situation in relation to consumers of banking financial services.
– As regards the plea of unconstitutionality regarding the violation, through the impugned legal provisions, of the principle of non-retroactivity of the law, provided for in Article 15 (1) of the Constitution, the Court held that the principle of pacta sunt servanda could be subject to mitigations imposed by situations arising during the performance of the contract, situations that could not have been taken into account at the moment of its signing and that put one of the parties to the contract in the situation of no longer being able to meet its contractual obligations.
– The Court also held that the right of ownership of non-banking financial institutions did not know any limitation in the event of hardship, the adaptation/termination of contracts not even meaning the limitation of the right of ownership, the impugned provisions being in accordance with the provisions of Article 44 of the Constitution.
– Moreover, entities that carry out debt collection activities can address the courts of law, under the positive law, for the settlement of any actions (complaints) related to the realisation of their claims, thus being ensured free access to justice.
– The Court also held that the provisions of Article 8 (3) to (10) of the impugned law provided for the possibility of a judicial adaptation of all loan agreements regulated by the same law, which is why the impugned legal provisions comply with the requirements imposed by the Constitutional Court by Decision No 623 of 25 October 2016, in par. 116, being in accordance with the constitutional provisions of Article 147.
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The decisions are final and generally binding.
The arguments retained as grounds for the solutions delivered by the Constitutional Court shall be presented within the decisions, which shall be published in the Official Gazette of Romania, Part I.
II. Moreover, the Constitutional Court postponed to 17 September 2024 the settlement of:
– The objection of unconstitutionality of the Law amending and supplementing Government Ordinance No 27/2011 on road transport, objection filed by 43 Deputies belonging to the Parliamentary Group of the Save Romania Union and by 13 non-affiliated Deputies;
– The objection of unconstitutionality of the Law amending and supplementing Law No 286/2009 on the Criminal Code, objection filed by the High Court of Cassation and Justice;
– The objection of unconstitutionality of Article II of the Law amending and supplementing Law No 51/1995 on the organization and exercise of the lawyer’s profession, as well as amending Article 451 of Law No 134/2010 on the Code of Civil Procedure, objection filed by the High Court of Cassation and Justice;
– The objection of unconstitutionality of the Law on the transfer of immovable property – a plot of land with related constructions from the public domain of the State and from the administration of the University of Life Sciences “King Mihai I” from Timișoara into the private domain of the State and, successively, into the property of the University of Life Sciences “King Mihai I” from Timișoara, Timiș County, and the transfer of an immovable property – a plot of land from the private domain of the State into the property of the University of Life Sciences “King Michael I” from Timișoara, objection filed by the President of Romania;
– The objection of unconstitutionality of the Law amending and supplementing Law No 188/2000 on bailiffs, objection filed by the President of Romania.
Foreign Relations, Press and Protocol Department
of the Constitutional Court