Constitutionality of „Individual” laws – Misuse of power by the legislator? Recent shifts in Romania
Constitutionality of „Individual” laws – Misuse of power by the legislator? Recent shifts in Romania

Summary/Abstract: Previously, the Romanian Constitutional Court invalidated laws applicable only to „individual cases”. This was deemed contrary to the „normative nature” and to the „constitutional purpose of the legislative activity” (our translation). The RCC thus deduced that the assignment of state property, the granting of leases or compensations to certain people, as well as the establishment and reorganization of legal entities cannot be carried out directly by law. Nonetheless, the arguments proved problematic and outdated. Correspondingly, the RCC has clarified its perspective in recent times – by stating that unconstitutionality in these cases relied on the „personal or particular” „purpose” of the provisions, which supposedly breaches upon the rule of law. In other words, the RCC now suggests that such laws may only be invalidated if they do not pursue the public interest. Both approaches are somewhat open to criticism however, when there are no fundamental rights at stake – as illustrated by some foreign systems that have also addressed this issue (Germany, France, Italy, the USA or the UK). Basically, the recent emphasis on the „personal or particular” „purpose” of the act may raise issues of democratic legitimacy. Moreover, laws drafted in abstract or general terms can also hide a „personal or particular” „purpose”. Thus, it is necessary to avoid entwining these two arguments. There is also a bit of case law by the ECtHR on this matter, but so far, the principle of generality has not been put into practice, as a stand-alone prohibition.

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