The principle of good administration in the case law of the romanian constitutional court

Author:Elisabeta Slabu
Position:Senior lecturer PhD, Faculty of Juridical, Social and Political Sciences, Dunarea de Jos University of Galati
Pages:133-138
SUMMARY

The Constitutional Court of Romania stood for the constitutionality of the various legal provisions over the course of the years, contributing through its decisions to the rule of law consolidation by ensuring the respect of the Constitutional principle of supremacy in the Romanian legal system. Through the decisions made in each case, referring to the constitutional principles and values, the constitutional case law has created a set of generally valid rules too, which later became legal principles. By this mean, the case law of the Constitutional Court has contributed over the years to the consolidation of the principle of good administration by strengthening the other successive principles: legality, equality, proportionality, legal certainty etc. All these fundamental principles define the progress of a legal, efficient and transparent activity of the public administration authorities.

 
CONTENT
The principle of good administration in the case law of the Romanian... 133
THE PRINCIPLE OF GOOD ADMINISTRATION IN THE CASE
LAW OF THE ROMANIAN CONSTITUTIONAL COURT
Senior LECTURER PhD. Elisabeta SLABU
Faculty of Juridical, Social and Political Sciences
DUNAREA DE JOS UNIVERSITY OF GALATI
slabuelisabeta@yahoo.com
Abstract
The Constitutional Court of Romania stood for the constitutionality of the various legal
provisions over the course of the years, contributing through its decisions to the rule of law
consolidation by ensuring the respect of the Constitutional principle of supremacy in the Romanian
legal system. Through the decisions made in each case, referring to the constitutional principles and
values, the constitutional case law has created a set of generally valid rules too, which later became
legal principles. By this mean, the case law of the Constitutional Court has contributed over the years
to the consolidation of the principle of good administration by strengthening the other successive
principles: legality, equality, proportionality, legal certainty etc. All these fundamental principles
define the progress of a legal, efficient and transparent activity of the public administration
authorities.
Keywords: Public Law, principle of good administration, Constitutional Court of Romania,
public administration.
Section 1 Constitutional principles and rule of law
The Romanian Court supported over the course of the years the
constitutionality of the various legal provisions, contributing through its decisions
to the consolidation of the rule of law by ensuring the respect of the constitutional
supremacy principle in the Romanian legal system. Through the decisions granted
in each case, referring to the constitutional principles and values, "the
constitutional case law has also created a set of generally valid rules ... that can be
used in other situations similar to those exposed in the Constitutional Court's
decisions." 1.
As stated in its jurisprudence, the Constitutional Court of Romania affirms that
the requirements of the the rule of law principle concern the major purposes of the
state activity, exposed in the expression of rule of law, which in fact implies the
subordination of the state to the law, namely the provision of means that allow to
1 T. Toader, Romania's Constitution reflected in constitutional law, Ed. Hamangiu, Bucharest, 2011.
See also The Romanian Constitution: decisions of the Constitutional Court, the CEDO decisions, the judgment
CJUE, related legislation, edition combed and annotated by T. Toader, M. Safta, ed. 2, Ed. Hamangiu,
Bucharest, 2016.
Law Review vol. VII, special issue, December 2017, p. 133-138
134 ELISABETA SLABU
the law to censure the possible abusive tendencies of state structures2. The rule of
law "ensures a series of warrantee, including jurisdictional, to provide the respect
of citizens' rights and freedom through the state's self-abolition, namely the
framing of public authorities in accordance to the law." Also, "there are principles
that, although not explicitly mentioned in the Romanian Constitution, have been
inferred by the case of law from all the constitutional provisions."3
Section 2 Fundamental elements of the principle of good administration
found in the case law of the Romanian Constitutional Court
Compliance with the principle of legality, which is a fundamental element of
the good administration principle, is analyzed by the Court, e.g., in the Decision
no. 660/20114 on the exception of unconstitutionality by which the author is
criticizing art. 164 par. (2) of the Labor Code, from the perspective of art. 16 par. (2)
of the Constitution, according to which "No one is above the law". The Court
considers that "the criticized law text not only is not in accordance to the
constitutional provisions mentioned, but is even an application of these provisions.
Thus, starting from the idea that the relations between the employee and the
employer must be carried out only under the conditions established by the law, the
penalty of the employee must gather a series of legal guarantees, including its
control by the court ".
Moreover, in this perspective, the Court, by its Decision no. 312/20045, stated
that "in the conditions of the rule of law, it is imposed that any forced execution
must be based on a valid enforceable title, and the patrimonial liability for
damages should be defined by the courts, which, according to art. 124 par. (1) of
the Constitution, republished, carry out justice in the name of the law. The Court
also notes that the criticized legal provision is part of the employee protection
measures in his relations with the employer, which cannot be considered as a
discrimination, the two parties being in different situations that justifies the
application of a different legal treatment."
The Court thus highlights the importance of legal provisions that provides the
guarantee of compliance with the law in situations where abuses may occur. Thus,
any person has the right to request the court's opinion on the legality of some
2 See the Decision no. 70/2000, published in The Official Monitor of Romania, Part I, no.
334/19.07.2000.
3 S. M. Teodoroiu, M. Safta, The role of constitutional courts in ensuring the respect and application of
constitutional principles, in the Report prepared for the Conference of European Constitutional Courts,
to be held this year, available at page http://www.confeuconstco.org/reports/rep-
xvii/romania_R.pdf , accessed on the date of 16/10/2017. See also the Decision no. 17/2015, which
shall be published in The Official Monitor of Romania, Part I, no. 79/30.01.2015.
4 Published in The Official Monitor of Romania, Part I, no. 532/28 July 2011.
5 Published in The Official Monitor of Romania, Part I, no. 797/30 August 2004.
The principle of good administration in the case law of the Romanian... 135
decisions considered illegal, compliance with the Constitution and the laws being
mandatory on both private and public law legal persons.
The Court also underlines that the different legal status of certain categories of
persons justifies the application of a different treatment in order to improve justice,
as it has also been found in the Decision no. 553/20046 or in the Decision no.
192/20057 because "equality before the law and public authorities only applies
when the parties find themselves in identical or equal situations, imposing and
justifying the same legal treatment and thus the establishment of the same legal
context" 8.
With regard to the equality of action principle of the public administration, in
relation to the criteria of non-age discrimination, it should be noted that by the
Decision no. 444/20049, the Constitutional Court rejected the objection of
unconstitutionality of the provisions of art. 129 par. (1) and (2) of Law no. 128/1997
regarding the Teaching Staff status, with the exception of Dumitru Brezoianu, who
claimed that the criticized law infringed the right to work and equal rights of the
citizens by setting an age limit until a person can work.
The criticized legal provisions were as follows: Article 129: "(1) University
professors and university lecturers with the title of Ph.D. may remain in activity
until the age of 65. (2) Upon reaching the retirement age, university professors and
university lecturers with the scientific title of Ph.D., with the exceptions included in
the Title VIII - Transitional and final provisions proving special professional skills,
may be maintained as holders of didactic duties upon request, with the approval of
the faculty council and with the annual approval of the university senate by open
nominal vote until the age of 70.”
The constitutional court has brought out that the age "is not among the
discriminatory criteria, through which the equality of citizens is violated, listed in
the provisions of art. 4 par. (2) of the Constitution " and noted that" by the legal
criticized provisions, the legislator limited the practice of the profession of
university professor up to a certain age ... and this limitation is justified ... by the
specific nature of the activity sector in which it is applied, consequently the
education sector, field with a public interest, governed by norms that guarantee a
good progression of the educational process."
Considering the European Union legislation and the decisions of the Court of
Justice of the European Union, which include discriminatory criteria and the age
criterion, besides a possible amendment of the Romanian Constitution should also
be discussed the modification of this article, for a proper and updated application
of the principle of equality, as the list of possible discrimination criteria in Art. 4
par. (2) of the Constitution has exemplary, not limitative character, and the society
6 Published in The Official Monitor of Romania, Part I, no.. 40/12 January 2005.
7 Published in The Official Monitor of Romania, Part I, no.. 527/21 June 2005.
8 T. Toader, op.cit., p. 20.
9 Published in The Official Monitor of Romania, Part I, no. 15/5 January 2005.
136 ELISABETA SLABU
is evolving, and the regulations in the legal field are changing very quickly. The
rejection of the constitutionality exception based only on the age criteria, without
taking into account, for example, the medical and psychological state of the person
concerned, may lead to the loss of a professional who can still provide added value
to the specific field.
It should be emphasized that the jurisprudence of the Constitutional Court has
met an evolution in the use of the discrimination concept, starting from the
prohibition of the discrimination and reaching the concept of the right to difference
- incompatible with the uniformity. Thus, the Court considers that "the principle of
equality implies equal treatment for all citizens in equal situations"10 but "in
different situations the treatment can only be different"11 Also, the Constitutional
Court has established that negative discrimination in Romania is prohibited, but
not the positive discrimination (on the basis of the right to differentiate), showing
that the citizens' solidarity should not be affected by the positive discrimination
but can be jeopardized by negative discrimination12.
In conclusion, the principle of equality can take two forms: that of non-
discrimination, also called strict equality, and that of the relative equality. In the
case law, art. 4 par. (2) of the Constitution is rarely mentioned, especially when the
constitutional judge wants to impose the standard of a strict equality, understood
as non-discrimination.
As regards the principle of equal treatment that public authorities have to
respect in their relations with citizens, through the Decision no. 1.354/201013, the
Court accepted the exception of the unconstitutionality of the provisions of art. I
point 1 and art. II of the Government Emergency Regulation no. 62/2010, finding
that they establish an unfair, objective, rational reasoning. The Court held that "The
differentiated legal treatment applied for those who consider themselves entitled
to compensation for the non-pecuniary damage suffered through political
conviction, depending on when the court's ruling on the right to compensations
has ben defined, affects the rights of the persons who did not have a final
judgment on the application date of Government Emergency Ordinance No.
62/2010 ". Therefore, any legal provision leading to the application of an unequal
treatment regime to categories of people in the same legal situation, respectively, in
this case, that are victims of a non-democratic political regime, will lead to the
10 Decision of the Constitutional Court no. 349/2001, published in The Official Monitor of
Romania, Part I, no. 240/10 April 2002..
11 Decision of the Constitutional Court no. 92/2002, published in The Official Monitor of
Romania, Part I, no. 388/6 June 2002 and the Constitutional Court Decision no. 116/2002, published
in The Official Monitor of Romania, Part I, no. 317/14 May 2002.
12 I. Muraru, M. Constantinescu, Constitutional Court of Romania, Albatros Publishing House,
Bucharest, 1997, pp. 113-114; see also the decisions of the Constitutional Court no. 107/1995 and no.
27/1996 and Decisions no. 312/2001 and 82/2002.
13 Published in The Official Monitor of Romania, Part I, no. 761/15 November 2010.
The principle of good administration in the case law of the Romanian... 137
unconstitutionality of the particular legal provisions and will need to be excluded
with urge, from the normative act by the issuing public authority.
As regards the principle of public administration action proportion, the
Decision No. 71/199614 of the Romanian Constitutional Court stipulates that
"through its drafting, art. 16 lit. a) Proposition I of Edict - Law no. 10/1990,
regarding the refusal to issue or withdraw the passport of the person to whom the
prosecution started, violates the Constitution and the international pacts to which
Romania is a party, because it represents "a disproportionate, discretionary and too
drastic restriction of the right to free movement " art. 49 par. (2) of the
Constitution15 allows the restriction of the right to free movement, but only in
accordance to the situation which caused it; in this respect, the text appealed as
unconstitutional appears to be "general, discretionary, excessive and unjustified",
reason for which the administrative body which orders the sanction measure
cannot be concerned with establishing any proportion between the gravity of the
allegations and the possible need to restrict the right ... ".
The Court's reasoning highlights once more the need to create a balance
between the situation’s state, the measure taken by the public administration and
the consequences of this measure’s application, in accordance with the
requirement to respect the principle of proportionality provided for in the
Constitution. Over time, the decisions of the Constitutional Court regarding the
constitutional principle of proportion respect have been the basis to the emergence
of abusive normative regulations that would seriously affect the fundamental
human rights.
Regarding the principle of of legal relations, the Court has stated that although
it is not explicitly expressed in the Constitution, it is "deduced both from the
provisions of Article 1 par. (3), according to which Romania is a state of law,
democratic and social, and also from the Introduction to the Convention for the
Protection of Human Rights and Fundamental Freedoms, as interpreted by the
European Court of Human Rights in its case law (Decision No
686/201416).According to the Court, the principle of security of civil legal relations
is a fundamental dimension of the rule of law. 17
Conclusions
The case law of the Constitutional Court has contributed over the years to the
consolidation of the principle of good administration by strengthening the other
underlying principles: legality, equality, proportionality, legal certainty, etc. All
14 Published in The Official Monitor of Romania, Part I, no.131/25 June 1996.
15 The Romanian Constitution of 1991, in its original form.
16 Published in The Official Monitor of Romania, Part I, no. 68 / 27.1.2015.
17 S. M. Teodoroiu, M. Safta, loc.cit. See Decision no. 570/2012, published in The Official Monitor
of Romania, Part I, no. 404 / 18.06.2012, Decision no. 615/2012, published in The Official Monitor of
Romania, Part I, no. 454 / 06.07.2012.
138 ELISABETA SLABU
these fundamental principles define the progression of a legal, efficient and
transparent activity of the public administration authorities, this way the concept
of the rule of law being respected.
References:
1. Ioan Muraru, Mihai Constantinescu, Constitutional Court of Romania,
Albatros Publishing House, Bucharest, 1997.
2. Simona Maya Teodoroiu, Marieta Safta, The role of constitutional courts in
ensuring the observance and application of constitutional principles, in the Report
prepared for the Conference of European Constitutional Courts , 2017.
3. The Romanian Constitution: decisions of the Constitutional Court, the CEDO
decision, judgment CJUE, related legislation, edition combed and annotated by
Tudorel Toader, Marieta Safta, ed. 2, Ed. Hamangiu, Bucharest, 2016.
4. Tudorel Toader, Romania's Constitution reflected in constitutional law, Ed.
Hamangiu, Bucharest, 2011.