Developments in the constitutional review. Constitutional court between the status of negative legislator and the status of positive co-legislator

AuthorLecturer Marieta Safta
PositionAssociate professor - lecturer to The Bucharest University of Economic Studies, Department of Law first assistant magistrate to the Constitutional Court of Romania
Lecturer Marieta SAFTA
The study wants to emphasize that Constitutional Courts belonging to the European model depart from their
traditional role as ”negative legislator which refers to the effect of their acts consisting in removal from the legal
system of those rules contra ry to the Basic Law -, becoming, to a certain e xtent, a ”positive legislator”. Official
interpreter s of the Constitution, Constitutional Courts a ssume, sometimes, a role of co-legislators, cr eating
provisions they deduct from the Constitution - when controlling the absence of legislation or legislative omissions -,
and revealing the content of constitutiona l and even infraconstitutiona l rules accordingly with the Constitution in
their ca se-law, whose effects are nothing but specific forms of „impulse” or „coercion” of the legislator to proceed
in a certain sense, and whose continuous development guides the evolution of t he entir e legal system. Ca se law
selected presents ways in which the Constitutional Court of Romania is associated to law-making activity. Without
minimizing in any way its traditiona l role as "negative legislator", the study refers mainly to acts a nd situations that
give expression to the crea tive role of the Constitutional Court of Romania.
Key words: constitutional review, negative legislator, positive legislator, constitutional loyalty, rule of law, effects of
the decisions of the Constitutional Court
JEL Classification: K10
I. Introduction
The acts delivered by Courts (Tribunals, Councils) in exercising their duties have a
specific legal regime determined, on the one hand, by the status of these authorities and, on the
other hand, by the fact that the effects produced by these acts are enshrined in the Basic Laws of
States. This study refers to the European model of constitutional review that entrusts a specially
empowered body with this type of review.
The Constitutional Courts belonging to that model are not courts of law in the strict sense
of the concept, they do not fall into any of the three traditional powers - legislative, executive and
judiciary but, as the Romanian Constitutional Court ruled in one of its decisions
, support the
smooth operation of these powers, within the constitutional relationships of separation,
cooperation and mutual control”. This position of the bodies of constitutional jurisdiction is
legitimized, in fact, even by these powers - involved in the procedure for appointing
constitutional judges - powers which, in turn, are chosen by the electorate
. It is noted in this
connection that, in States that have opted for the European model of review of constitutionality of
laws, the regulations of reference the Constitutions, respectively the laws on the organisation
and functioning of the Constitutional Courts /Tribunals - provide that judges are appointed by
representatives of the highest authorities in the State, usually political bodies par excellence
In Romania, pursuant Article 142 paragraph (1) of the Constitution, the Constitutional
Court ”is the guarantor for the supremacy of the Constitution”, and, pursuant Article 1(2) of
Law 47/1992 on the organisation and functioning of the Constitutional Court
, is „the sole
authority of constitutional jurisdiction”. In exercising the powers under the Constitution and its
Marieta Safta - associate professor - lecturer to The Bucharest University of Economic Studies, Department of Law
first assistant magistrate to the Constitutional Court of Romania,
Decision 1/2011 on the referral of unconstitutionality of National Education Law, Official Gazette, Part I, no.135 of 23 February
see IoanVida, Constitutional Court of Romania, Politics justice or justice politics, 45 (Official Gazette, Bucharest, 2011)
M. Safta, Garanties de l’indépendance des juges constitutionnels dans les pays de l’Union Européenne, Bulletin of the Central
European Academy of Sciences, Letters and Arts no.2/2011
Monitorul oficial al României” (Official Gazette of Romania), Part I, no.807 of 3 December 2010
Perspectives of Business Law Journal Volume 1, Issue 1, November 2012 2
organic law, the Constitutional Court carries out also a judicial activity, and the procedures used
in carrying out its duties have largely the characteristics of judicial proceedings.
In exercising its duties, the Constitutional Court of Romania can deliver the following
acts: decisions, rulings or advisory opinions, accordingly, pursuant the distinctions set forth in
Article 11 of Law 47/1992. Of these, the Constitution only refers to decisions and advisory
opinions, while rulings are nominated only by Law 47/1992, which awards them the same effect
as the one enshrined by the Basic Law in case of decisions
. According to Article 147 paragraph
(4) of the Constitution of Romania, "Decisions of the Constitutional Court shall be published in
the Official Gazette of Romania. From their publication, decisions shall be generally binding and
take effect only for the future.” Given that the generally binding nature of this court's decisions is
constitutionally enshrined, these decisions apply to all subject of law, just as the normative acts,
unlike court judgements, which produce inter partes litigants effects
Similarly, in Poland and Serbia, decisions of Constitutional Courts have generally binding
effect. In Germany, an erga omnes effect is fully established in case of abstract and concrete
constitutional review of laws, as well as of individual complaints of unconstitutionality aimed at
normative acts. The force of law is attributed to these decisions. Likewise, in Austria, decisions
delivered within the constitutional review exercised on normative acts have erga omnes effects.
Given the aforementioned, even if the acts of Constitutional Courts are generically
described as "case-law" a common concept used to describe the totality of judgments delivered by
courts at all levels, a distinction must be made in relation to their value as source of law
. It was
in that respect, with reference to the role of constitutional jurisdiction bodies and the
effects of acts delivered by the same, that, by their case-law, ”have determined a rearrangement
of traditional positions occupied by the time of their emergence by other judicial and political
agents. In these circumstances, the legislator does no longer hold the monopoly over the
formation of national will. The classical concept that the law is the work of Parliament is now
obsolete. "
This is because, in exercising their powers, Constitutional Courts do more than simply a
certification that the disputed legal provisions are or aren’t in accordance with the Constitution.
In stating the grounds for the acts delivered, the Courts establish principles and rules, delimitate
powers of public authorities, give guidance and solution in relation to the interpretation of both
the Constitution and the infraconstitutional legislation
, and even ”repair”, in accordance with
the constitutional norms, legislative omissions.
Thus, Constitutional Courts belonging to the European model depart more and more from
their traditional role as ”negative legislator which refers to the effect of their acts consisting in
removal from the legal system of those rules contrary to the Basic Law - becoming, to a certain
extent, a ”positive legislator”, official interpreter of the Constitution, revealing the content of
constitutional and even infraconstitutional rules in their case-law, whose effects «are nothing but
according to expert opinions in doctrine, in this way, Law 47/ 1992 would add to the Constitution, since it provides that also
rulings are acts of the Court, although such are not nominated by constitutional provisions - see Constitutionof Romania -
Comment on articles, coordinators Ioan. Muraru, Elena SiminaTnsescu, 1419 (CH Beck Publishing House, Bucharest, 2008)
this category does not include the decisions of the High Court of Cassation and Justice, issued following the resolution of appeals
in the interest of law, which have a separate legal regime
in detail, - the XVth Congress of European Constitutional Courts, General Report, V.Z. Puskas, Benke Karoly,
Enforcement of Constitutional Court Decisions
in the Romanian law system, courts’ case-law is not a creative source of law but it is, as stressed by some authors (Ion Deleanu,
Judges Dialogue, Romanian Journal of Case-Law, no.1/2012, p.25) - «"nor mative force" within the meaning of this phr ase
attributed to "guide", the "model" the "reference", the "benchmark" for legal pr actice, doctrine and legislator »- see the reference
to C. Thibierge et alii, La force normative Naissance d un concept, LGDJ, Bruylant, 2009
Claudia Gilia, The rule of law theory, 272, (Ch. Beck Publishing House, Bucharest 2007)
e.g. Constitutional Court of Austria, Estonia, Lithuania, Romania, Hungary,

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT