I. During its sitting of 21 November 2023, the Constitutional Court conducted the a posteriori constitutional review and, by a majority vote, upheld the exception of unconstitutionality and found that the phrase “in case of improper exercise of the duties specific to their position”, contained by the provisions of Article 87 (8) of Law No 304/2004 on judicial organization, was unconstitutional.
Article 87 (8) of Law No 304/2004 reads as follows:
(8) Prosecutors appointed to the National Anticorruption Directorate may be revoked by order of the Chief Prosecutor of the National Anticorruption Directorate, with the opinion of the Prosecutors’ Section of the Superior Council of Magistracy, in case of improper exercise of the duties specific to their position or in case of application of one of the disciplinary sanctions provided for in Article 100 (b) to (e) of Law No 303/2004, republished, as subsequently amended and supplemented.”
In essence, the Court found that this legislative solution, which does not specify the criteria, conditions and procedure for revocation in case of improper exercise of the duties specific to the position of National Anticorruption Directorate prosecutor, violated the constitutional provisions of Article 1 (5) of the Constitution on the quality of law, of Article 21 on the right to a fair trial and of Article 24 on the right to defence.
II. Also, during the same sitting, as part of the review of Parliament’s decisions, the Constitutional Court unanimously dismissed, as unfounded, the complaint of unconstitutionality filed by the Save Romania Union Parliamentary Group within the Chamber of Deputies and found that Decision No 33/2023 of the Romanian Parliament on the appointment of the Vice-Presidents of the National Authority for Management and Regulation in Communications (ANCOM) was constitutional in relation to the pleas filed.
In essence, as regards the plea referring to the adoption of the decision appointing the ANCOM Vice-Presidents during the term of office of the acting Vice-Presidents, without any indication of the date from which the new Vice-Presidents would take office, the Court found that the starting date of the term of office of the new Vice-Presidents of ANCOM, appointed by Decision No 33 of 10 October 2023 of the Romanian Parliament, was inferred from the interpretation of this decision, read in conjunction with Decision No 79 of 11 October 2017 of the Romanian Parliament, by taking into account the natural succession of the mandates over time, and, consequently, this plea, which posed a problem of interpretation, was unfounded. Therefore, the procedure for adopting Decision No 33/2023 of the Romanian Parliament did not violate the provisions of Article 11 (14) of Government Emergency Ordinance No 22/2009 and, as such, no violation of the provisions of Article 1 (3) and Article 147 of the Constitution could be retained either. As for the clarifications made by the author with regard to the referral of unconstitutionality, i.e., that the rectification of Parliament Decision No 33/2023, by mentioning the date from which the new Vice-Presidents would take office, does not cover the unconstitutionality of this decision, the Court noted that a separate analysis was not required, given that the impugned decision had been adopted in compliance with the constitutional requirements invoked. The Court also found that the persons appointed as Vice-President of ANCOM fulfilled the objective condition of having conducted an activity “in the field of communications or in the legal field” for a 5-year period, and so, by taking into account the margin of appreciation of the appointing authority – Parliament –, the impugned decision met the requirements of the second sentence of Article 11 (3) (a) of Government Emergency Ordinance No 22/2009 and, therefore, did not violate the provisions of Article l (3) of the Constitution. Moreover, the Court noted that the requirements regarding professional experience, regulated by the provisions of the first sentence of Article 7 (1) of Directive (EU) 2018/1972 of the European Parliament and of the Council of 11 December 2018 establishing the European Electronic Communications Code, were found within the provisions of the second sentence of Article 11 (3) (a) of Government Emergency Ordinance No 22/2009 and so, a separate analysis of the plea in relation to the provisions of Article 148 (2) of the Constitution was not necessary.
*
The decisions are final and generally binding.
The arguments retained as grounds for the solutions delivered by the Constitutional Court shall be presented in the decisions, to be published in the Official Gazette of Romania, Part I.
External Relations, Press and Protocol Department of the Constitutional Court of Romania