The Constitutional Court is expected today to rule on the appeal regarding the appointments to the position of vice-president of ANCOM, appointments made by a decision of the Parliament, corrected directly in the Official Gazette, so that even one of the constitutional objections raised by the authors of the referral are removed.

A possible decision by the DRC to reject the appeal would, in practice, be equivalent to a review of the mechanism by which regulations can be amended, bypassing a parliamentary vote and the legislative process provided for by the Constitution.

Over the past month, a phenomenon has occurred in Romania “legislation by amendment”. This concept refers to changes made to normative acts by means of corrections, bypassing the legislative procedures provided for by the Constitution.

This topic has attracted public attention following two recent corrections published in the Official Gazette. Thanks to these amendments, significant changes were made at the level of some important regulatory acts, such as:

• Correction regarding the Decision of the Verkhovna Rada on the appointment of vice-presidents of ANKOM[1] which changed the date on which vice presidents begin their terms, on which the Court’s decision is expected today;
• Amendments to the CSM Act[2] in which phrase “arithmetic average score” IS BECOMING “sum of points”.

The special significance of the decision of the Constitutional Court

The Constitutional Court appealed to the Decision of the Verkhovna Rada on the appointment of vice-presidents of ANKOM. In the initial form of the decision of the parliament, the period from which both vice presidents began their terms of office was missing. However, in the absence of this deadline, the date of publication in the Official Gazette was the date from which the mandate began (October 10).

After filing an appeal and citing, among other objections to unconstitutionality, even the coincidence of the mandates of the old vice-presidents with the mandates of the new vice-presidents, the Decision of the Parliament was corrected on October 25 (after the mandates had already coincided), clarifying that the powers of the new vice-presidents – presidents start on October 11.

The decision expected by the judges of the Constitutional Court is all the more important because it could create dangerous precedents. The court must determine (if it was still necessary) how far the concept of material error extends.

If the proposed amendment is confirmed by the Central Committee, then it will be possible to continue to use this mechanism to amend regulations, bypassing the legislative process provided for by the Constitution, a mechanism that was already used to amend the Law on the High Council of Magistrates.

In this regard, the replacement of the phrase “arithmetic average score” with “sum of points”better emphasizes the amendment to the text of the law regarding the regulatory solution and the absence of a significant error, since it is obvious to everyone that the arithmetic mean is not equal to the sum of the points.

A significant mistake or a desire to avoid a vote in parliament?

In this context, it is important to draw a clear distinction between material errors and errors in reasoning or misjudgment of the consequences that the law will have.

Material errors are simple editing errors, such as grammatical errors, incorrect numbering, misspelling of institution names, etc. Thus, there is a legal procedure by which they can be referred without the need for a second parliamentary vote.

Unlike substantive errors, errors regarding the substance of a regulatory act, no matter how obvious they may be, relate to the regulatory decision found and can only be changed by another regulatory act. Referring to the amendment made to the CSM Act, “arithmetic mean“ could become “sum of points“ after the passage of another bill or extraordinary ordinance, in no case by way of amendment.

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