The consequences of not applying mutátis mutándis1 a decision of the Romanian Constitutional Court

Author:Camelia Daciana Stoian
Position:West University 'Vasile Goldi?' of Arad, Romania
Pages:148-163
SUMMARY

The article aims at procedural mechanism of application of art.147, paragraph 2 of Romanian Constitution3, in the specific case of pronouncing an unconstitutionality decision which concerns a law in draft before its promulgation, but especially focuses on the effects produced by such a normative act adopted without consideration of the Constitutional Court Decision. In other words, the Parliament,... (see full summary)

 
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The consequences of not applying mutátis mutándis
1
a decision of the
Romanian Constitutional Court
Lecturer Camelia Daciana STOIAN
2
, PhD.
Abstract
The article aims at procedural mechanism of application of art.147, paragraph 2
of Romanian Constitution
3
, in the specific case of pronouncing an unconstitutionality
decision which concerns a law in draft before its promulgation, but especially focuses on
the effects produced by such a normative act adopted without consideration of the
Constitutional Court Decision. In other words, the Parliament, although bound to
reconsider those provisions to bring them into line with the Constitutional Court decision,
for failure to comply with this obligation, it brings us into the situation of prevalence
inability of this Constitutional Court Decision and breach of a law in force which was,
moreover, declared unconstitutional still at the planning stage. In this way, we find that the
effects in question are reflected in an unfavorable way; above all th e interest of local
collectivities; and raises a b ig question mark on the achievement of both the "joint" powers
of Parliament's own, and the concept of "local a utonomy" by those who exercise it,
knowing your rights, obligations and limits allowed.
Keywords: Romanian Constitution, Constitutional Court, Supremacy guaran tor of
Constitution, The Romanian Pa rliament, Legislative Council, President of Ro mania,
enactment, deliberative authorities, local autonomy, community develo pment associations.
JEL classification: K10, K23, K40
1. Introduction to the facts
The phrase ”mutátis mutándis” which means "changing what needed to be
changed" involves a common formula for legal practitioners, but especially under
its effective translation, are reflected in an expectation from the citizens, a different
kind of guarantor for the supremacy of the Constitution, what it means definitely,
and also completely logic, imposition of necessary operations of the law that
protects them.
Article 147, para. 2 of the Romanian Constitution, under the name
„Constitutional Court Decisions” provides the cases of unconstitutionality of laws,
before promulgation and implicit the obligation of Parliament to reconsider those
provisions, to bring them into line with the Constitutional Court Decision. How to
1
Mutatis mutandis - "Changing what had changed".
2
Camelia Daciana Stoian - West University „Vasile Goldiș” of Arad, Romania,
av.stoiancameliadaciana@yahoo.com .
3
Romanian Constitution - Art. 147: Constitutional Court Decisions : (2)In cases unconstitutionality
of law, before their promulgation, Parliament must reconsider those provisions to bring them into
line with the Constitutional Court.
Juridical Tribune Volume 6, Issue 1, June 2016
149
appreciate the doctrine, constitutionalising law is the effect of Constitution
4
supremacy.
The Constitution7al Court Decision no. 442 from 10 June 2015
5
concerning the unconstitutionality of the provisions of the enactment to amend the
Law of public utilities services no.51/2006, it brings in front of us the
ascertainment that this law is unconstitutional.
The guiding idea of the majority which are presented every four years in
elections is based on the determination for an universal, equal, direct, secret and
freely expressed in order to facilitate the exercise of the mandates of elected
officials from local or center level, strictly serving the people, in the public interest.
All in service of the people, but in a different manifestation that legally
allows it to be the institution entitled to decide on its jurisdiction, The
Constitutional Court is the sole body of constitutional jurisdiction in Romania. And
the center around which the debate is weaving, the concern and ultimately our
convictions before submitting proposals to ferenda law, are based on the failure to
comply of the Decision no. 442 of 10 June 2015 referring to the objection of
unconstitutionality of the amending Law regarding changing the public utilities
services Law no. 51/2006,
6
pronounced by the Romanian Constitutional Court and
communicated to the Romanian President, the presidents of bought Parliament
Chambers and to the Prime Minister.
As the doctrine considers "all the decisions of the Court given both in
solving the objections of unconstitutionality, and the exceptions of
unconstitutionality of a Law, an ordinance or provisions of the Parliamentary
Regulations, result in forcing the Parliament and the Government, where
appropriate, to reconcile upon the unconstitutional provisions with the
Constitution's
7
Law”.
A motivating and explainable logic of the Parliament in adopting a law
8
with a certain unconstitutional content even before promulgation
9
, we do not
identify nor do we intend, following the same idea path in what regards the failure
to comply on behalf of the Parliament of the unconstitutional provisions for
agreeing with the decision of the Constitutional Court.
But, what really worries us is the fact that these declared unconstitutional
provisions produce effects, without righteously suspending them so they cannot
4
Ștefan Deaconu, Drept constituțional (Constitutional right), 2nd edition, publisher C.H. Beck,
Bucharest, 2013, p. 109.
5
Published in the Official Gazette no. 526/15 07 2015.
6
Republished in the Official Gazette no. 121/ 05 03 2013.
7
Ioan Muraru in Ioan Muraru, Elena Simina Tănăsescu (coo rd), Constituția României. Comentariu
pe articole (Romanian Constitution, Comment on articles), Publisher C.H. Beck, Bucharest, 2008,
p. 1420.
8
Law no . 313 from 7 december 201 5 amending the Law of pub lic utilities no. 51/2006, published
in Official Gazette no. 910 from 09. 12. 2015.
9
On the preventive control (a priori) conducted by the Constitutional Court before the presidential
promulgation of the law see Cătălin-Silviu Săraru, Legea contenciosu lui administrativ
nr. 554/2004. Examen critic a l Deciziilor Curtii Constitutionale , C.H. Beck Publishing House,
Bucharest, 2015, pp. 1,2.

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