Part II

The 2003 constitutional amendment granted the Constitutional Court a new power: that of resolving legal conflicts of a constitutional nature between public authorities. Article 146(e) of the Constitution provides that the Constitutional Court has the authority to resolve legal conflicts of a constitutional nature between public authorities, at the request of the President of Romania, one of the presidents of the two Chambers, the Prime Minister, or the President of the Superior Council of Magistracy. Such a power is also found in the constitutional provisions of other states (for example, Article 189 of the Polish Constitution or Article 160 of the Slovenian Constitution). These involve conflicts of authority (or institutional disputes). In such cases, the Constitutional Court resolves or settles constitutional disputes between authorities. These disputes may concern conflicts between two or more constitutional authorities regarding the content or scope of their powers, as derived from the Constitution. The ultimate goal is to remove potential institutional deadlocks.

On the other hand, it should be emphasized that this provision risks being a “trap” provision, which, incidentally, the Constitutional Court itself criticized when it had to review the constitutionality of the draft law revising the Constitution in 2003. In its decision, the Court pointed out that, in order to avoid involving the Constitutional Court in the resolution of political conflicts, it is necessary to specify that the provision applies only to institutional deadlocks, namely positive or negative conflicts of jurisdiction. The Opinion of the European Commission for Democracy through Law in Venice is along the same lines, having established that, although such a constitutional provision represents progress for the rule of law, a Constitutional Court is not a mediating body between the branches of government tasked with resolving their disputes and finding “political” solutions to their disagreements. In an attempt to clarify the phrase “legal conflict of a constitutional nature between public authorities,” the Venice Commission stated that this actually refers to positive or negative conflicts of jurisdiction in a specific case. This interpretation was subsequently adopted by the Constitutional Court in its case law.

From the perspective of analyzing this function of the Romanian Constitutional Court, this article examines Romanian constitutional case law regarding legal conflicts of a constitutional nature resolved by the Constitutional Court over the past five years. The article focuses solely on those conflicts that have arisen between the judiciary and other public authorities.