The concepts of unconstitutionality and unlawfulness bear an apparent similarity, both falling under the domain of contemporary law. If this is the case, how does unlawfulness differ from unconstitutionality, and why is it important for every resident of Romania to understand these legal mechanisms?

Current legal systems are organized by adopting and developing theses and concepts elaborated by renowned jurists of past centuries. In this regard, an essential theory for shaping modern law is that of normativism, put forth by the Austrian scholar Hans Kelsen.

Specifically, normativist principles dictate that rules must be encapsulated in different types of normative acts, depending on their importance to society and the legal system, with constitutions, metaphorically referred to as fundamental laws, needing to be at the top of the hierarchy of normative acts, forming the essence of state functioning. A particular feature of this concept is that any normative act must comply with and, where applicable, implement the provisions of higher legal acts.

Considering that, theoretically, the principles outlined above are more challenging to understand, we will illustrate how they apply in practice in Romania. In Romanian law, the Constitution holds the fundamental role. It establishes the most important aspects regarding national identity, fundamental rights and duties of individuals, the organization of public authorities, the adoption of laws, and so on. The Constitution determines the direction in which national law is constructed, so any normative act must perpetuate its values and strictly adhere to its provisions.

For example, a law cannot contain rules that suppress fundamental rights enshrined in the Constitution or alter the constitutional powers of the President of Romania or the Government. A special case is the amendment (modification) of the Constitution, which involves a complex procedure, rarely initiated, regulated by Articles 150-152 of the Constitution.

If a law or Government ordinance contravenes the fundamental Law, the Constitutional Court of Romania (CCR) may intervene to declare it unconstitutional, based on Article 146 points a) and d) of the Constitution. This legal measure, if applied to normative acts in force, results in the suspension of unconstitutional provisions and has retroactive effects.

It is noteworthy that the CCR cannot act on its own in matters of the unconstitutionality of organic and ordinary laws or ordinances; thus it initiates the verification procedures only at the request of subjects entitled to refer the matter, according to the law. In this regard, there is the mechanism of the exception of unconstitutionality, through which any person can bring issues of constitutional non-compliance to the Court’s attention in two ways.

The first is to petition the People’s Advocate, who, if finding the situation indicated by the petitioner justified, will directly refer the matter to the Constitutional Court, which will rule through a decision. The second scenario involves raising an exception of unconstitutionality before a court in a dispute by one of the parties regarding norms deemed unconstitutional, which must be relevant to the case at hand. The procedure is more extensive, regulated by Articles 29-33 of Law No. 47/1992 on the organization and functioning of the Constitutional Court, but it is essential to note that, ultimately, the judge forwards the complaint to the CCR and, therefore, will assess whether the party’s request is justified or not.

Furthermore, normative acts must comply with other superior regulations, according to the hierarchy of rules. These aspects are mainly established by Law No. 24/2000. Without referring to parliamentary laws or government ordinances – which are subject only to the Constitution – a peculiarity of this principle is that normative acts must provide and explain how higher norms will be applied, facilitating their practical implementation, without including new rules that should normally be encompassed in the primary normative act (the one superior in legal force). The Government, its specialized apparatus, and other public administration authorities have the primary responsibility of implementing this mechanism, thus organizing the execution of the law.

An example of a norm elaborated to apply another is as follows: Parliament adopts a law with a single article prohibiting the sale of tobacco products from January 1, 2025. Being a very concise but insufficient regulation, the Government must intervene by enacting norms to establish the framework for implementing this measure: what happens to stored and ready-to-sell tobacco products, how exactly the activity of firms in the sector will cease, applicable sanctions, etc. It is noteworthy that through the Government decision adopted for this matter, whose sole purpose is to implement the legal norm, the consumption of tobacco products cannot be prohibited, as the law based on which the Government regulates did not mention any reference to consumption activity. In this latter case, there would be a situation of unlawfulness of the normative act.

A person whose legitimate interest has been harmed by an illegal norm can address the court, based on Law No. 554/2004 on administrative litigation, which can suspend the normative act in question and order remedial measures, or can address the institution of the People’s Advocate, which, in turn, has procedural means to act towards remedying the situation of unlawfulness.

In conclusion, the differences between unlawfulness and unconstitutionality manifest both in substance and in the applicable procedure, and knowing these details can make a difference when our rights are violated through the adoption of normative acts that do not meet the rule of law’s requirements.

Daniel Abbasi

Legal intern – R&R Partners