How the CCR judges who did not agree that the law on magistrates' pensions should be rejected explained their position. Criticism of the CSM

Four of the nine judges of the CCR voted for the validation of the law on the special pensions of magistrates and the rejection of the referrals submitted by the ÎCCJ, but their decision was a minority one. In the justification of the decision of October 20, published on Friday by the CCR, their point of view is detailed, including criticism of the Supreme Council of Magistracy.

• “The lack of approval from the public authorities requested to issue it does not automatically lead to the unconstitutionality of the law on which it was not given”, say the four judges who had a separate opinion.

The law on the reform of special pensions was declared unconstitutional by the Constitutional Court of Romania (CCR), on formal grounds, by the vote of five of the nine judges of the CCR.

The five judges who admitted the referral to the High Court of Cassation and Justice are: Cristian Deliorga, Gheorghe Stan, Bogdan Licu, Mihai Busuioc and Mihaela Ciochină.

In the reasons for the decision, published on Friday, they claim that the Government had the obligation to wait 30 days for the CSM's opinion.

The other four judges from the CCR, Simina Tănăsescu, Iulia Scântei, Csaba Asztalos and Dragoș Dacian, claim that the Government fulfilled its legal obligations and that it waited enough time.

The law on the reform of magistrates' pensions complied with all stages of the legislative procedure, the four CCR judges note in the reasoning of the separate opinion, emphasizing that it was subjected to the decision-making transparency procedure and registered some changes following the consultations.

CCR: The President of the CSM spoke publicly

After the Government requested the opinion, on August 22, the advisory opinion, the SCM convened the general meetings of judges and prosecutors, in order to express a point of view regarding the draft law.

The four CCR judges point out in their motivation that “the president of the Superior Council of the Magistracy expressed in the mass media the institutional position regarding the draft law”.

The general assemblies of judges convened on August 26-27 throughout the country voted only to initiate protest actions, requesting the withdrawal of the project on special pensions.

“The government fulfilled its legal obligation to request the CSM's opinion”

“The Superior Council of the Magistracy met and decided to convene the general meetings of judges and prosecutors, which resulted in the adoption by them of publicly communicated statements, but not in the drafting and transmission of an opinion to the Government. The opinion was not adopted/communicated to the Government neither before the submission of the draft law to the Parliament, nor after this moment”, the four judges note in the motivation.

They emphasize that the Government obtained the other mandatory approvals, from the Legislative Council, respectively the Economic and Social Council.

“The government fulfilled its legal obligation to request the opinion of the Superior Council of the Magistracy, and the Superior Council of the Magistracy did not fulfill its legal obligation to approve the draft Law for the amendment and completion of some normative acts in the field of service pensions”, note the four judges in the separate opinion.

“The government has no constitutional obligation to wait for the opinion”

“The lack of approval from the public authorities requested to issue it does not automatically lead to the unconstitutionality of the law on which it was not given, since what prevails is the Government's obligation to request it. The circumstance that the authority that must issue such an opinion, although it was requested, did not fulfill this attribution constitutes a misunderstanding of its legal and constitutional role, without however affecting the constitutionality of the law on which was not given the approval”, note the CCR judges in the separate opinion

In relation to the waiting period for the advisory opinion, the four CCR judges state that the 30-day term “does not have a constitutional relevance, but a purely legal one that does not impose obligations on the Government”

“Disagreeing with the majority decision which achieved a real jurisprudential revolution without having met the conditions enshrined in the Court's jurisprudence, we consider that the Government does not have the constitutional obligation to wait for the CSM's opinion beyond the term limit provided by art. 33 paragraph (2) of Law no. 305/2022. By virtue of the principle of loyal collaboration between public authorities, it is noted that in the procedure for approving normative acts the public authorities must cooperate and not delay their adoption”, the four CCR magistrates note in the separate opinion.

“The term obliges the CSM to respond quickly”

In the opinion of the four CCR magistrates, the term of 30 days is established by the legislator and not by the constituent and was adopted in consideration of some complex legislative projects, such as the codes.

“It does not and cannot have a dilatory meaning in the context of the adoption of normative acts, especially when a procedure regulated at the constitutional level with short deadlines is used, such as that of engaging the Government's liability provided for by art. 114 of the Constitution. The 30-day deadline specifies the obligation of the CSM to issue the respective opinion with speed. Any other interpretation of the legal and, above all, constitutional meaning of this legal term would grant the advising authorities a implicit power of decision, not foreseen by the law or the Constitution, the effect generated leading to the delay of the legislative process and, even, to the limitation of the legislative competence of the Parliament”, he also writes in the motivation of the separate opinion.

In the opinion of the four magistrates, the fact that the Government did not wait for the completion of the 30-day period in which the CSM could issue the said opinion does not mean that it did not grant it a sufficient time interval to be able to exercise its legal duties.

Criticism of the CSM

“The term of 30 days has no constitutional relevance, but a purely legal one that does not impose obligations on the Government, but only on the CSM in the sense that it has the competence to issue such an opinion within 30 days at the most (and not after the deadline). The fact that it did not issue an opinion within a reasonable period of time relative to the date of its referral and the complexity of the normative act that had to be approved, given that the discussion was an employment procedure of the Government's responsibility regulated by the Constitution with imperative and short terms, does nothing but demonstrate that this term was used by the SCM with a dilatory purpose, which is not allowed in the process of approving normative acts, a process of an eminently technical nature subordinated to the political decision to initiate or adopt a normative act of primary regulation”, the CCR judges note in the separate opinion.

That is, the four judges of the CCR claim that the SCM used the 30-day deadline to try to get a reprieve.

The advising public authorities, draw the attention of the CCR magistrates, cannot delay or prevent the unfolding of a procedure of a constitutional nature and oppose to the Government the necessity of running the entire time interval in which it must issue the said opinion so that the Government can undertake its responsibility according to the Constitution.

The four judges considered that the Government's waiting period was reasonable.

“The government had the legal competence to assume responsibility before the Parliament on the Law for the amendment and completion of some normative acts in the field of service pensions even in the absence of the communication of the advisory opinion of the CSM, as it had been requested by the initiator according to the law. The absence of an opinion in this term (30 August-1/3 September) is included in the coordinates of the non-compliance with the legal attribution of the CSM for approval, which also reflects a lack of loyal collaboration of the authority advisor, CSM, in the legislative process”, concluded the four CCR judges.