Academic journal article Studia Politica; Romanian Political Science Review

On the Nature of the Romanian Political Regime: Reflections on the Recent Jurisprudence of the Constitutional Court

Academic journal article Studia Politica; Romanian Political Science Review

On the Nature of the Romanian Political Regime: Reflections on the Recent Jurisprudence of the Constitutional Court

Article excerpt

The participation to the European Council, an issue that generated vivid debates during the summer of 2012 and it was one of the episodes that have amplified the conflict between the Prime Minister and the President which culminated with the suspension from office of the former and the referendum that invalidated the suspension, has led to the emergence of another topic that unfortunately did not benefit from the same intensity in the public debate: the nature of the Romanian political regime. Since the issue had not been permanently clarified within the public law doctrine, the Constitutional Court has added a new episode concerning the clarification of this regime. From the moment the Court was notified regarding the issue of the participation to the European Council, there were two options: that this conflict would not fall under the category of legal conflicts of constitutional nature that the Court is entitled to judge, or that this conflict would fall under this category and, in order to find a solution, to determine more precisely the nature of the political regime. The Court has chosen the second option. An option that proved to be an extremely difficult one, since the Decision no. 683/20121 was adopted with a majority of 5 to 4, and all the 4 judges that voted against felt the need to express separate opinions.

In order to resolve the notification of the Presidential Administration, the Court wished to decide first upon the fact whether the given situation corresponds to a legal conflict of constitutional nature. A positive answer in this regard was given by the Court invoking the letter exchange between the Minister of Foreign Affairs and a deputy minister from the Ministry of Foreign Affairs, on the one hand, and a presidential counselor, on the other hand. Thus, the conflict situation is, according to the Court, "born and present" due to certain concrete acts already committed, which means that this conflict cannot emerge only with the effective participation of the President to the European Council. From this article's perspective, it does not matter that much why this conflict has been labeled as having a legal nature, but mostly why it has been decided that it has a constitutional nature. In order to reach this conclusion, the Court stressed the fact that this conflict concerns the interpretation of article 80, paragraph 1 and article 102, paragraph 1 from the Constitution and, according to a previous decision of the Court, if the public authorities interpret and apply differently a constitutional disposition, the existence of a legal conflict of constitutional nature is proven2. Thus, the answer to the first question (the existence of a conflict that the Court is entitled to judge) is strongly linked to the answer to the question that has to right to represent Romanian to the European Council.

In order to provide an answer to the second question, the Court has analyzed first the nature of the European Council and of the representativeness of the EU Member States. The Court notices that it is not possible to partition the agenda of the European Council on certain issues that could possibly justify the participation of the President in certain situations and of the Prime Minister in other situations, because the mandate of representation of the state is "a permanent one and not one divided between two public authorities". Furthermore, the appointment of the right person to represent a Member State is aimed at "ensuring the representation of the Member State at the highest level by the competent public authority".

Why is it important to clarify the nature of a political regime in order to decide who participates to the European Council? The Court states that the participation at presidential level occurs due to the existing political regime (the case of France - semi-presidential regime and of Cyprus - presidential regime) or due to an agreement between the political actors (case of Lithuania - semi-presidential regime). …

Search by... Author
Show... All Results Primary Sources Peer-reviewed

Oops!

An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.