According to Article 147 of the Constitution, the decisions
of the Constitutional Court are generally binding, being official decisions
according to the attached legal norm. Also, the mandatory general nature of
these decisions are reaffirmed by Article 31 of Law 47/1992 which regulates the
organization and functioning of the Constitutional Court.
Thus, it is necessary to analyze the effects of the
decisions taken by the Constitutional Court which were decreed following the
analysis of the requests for referral concerning constitutionality or
non-compliance with the provisions of the normative act or those imposed in the
control of constitutionality carried out in the framework of a draft
legislation, prior to its promulgation. These 2 aspects are presented in
Decisions 415/2018 and 731/2019).
Moreover, the obligation to take into account the decisions
of the Constitutional Court in relation to the circumstances does not differ in
the case-law of the constitutional court, in Article 31 of Law 47/1992 and in
Article 147 of the Constitution, and aims at:
- Constitutionality control carried out on a draft
legislation, prior to its promulgation
- Unconstitutionality of a provision of a normative act in
force
Interpretative decisions or interpretative (intermediate)
decisions represent a new category that has appeared in practice and the
doctrine of the Courts and represent decisions by which the Constitutional
Court rejects the referral, characterizing it as inadmissible. With regard to
these decisions, there may be circumstances for mitigating the mandatory nature
of taking into account the resolution, the court being able to relate to them
in making the final decision. However, Decisions No 731/2019 and 415/2018 do
not aim to dismiss the complaints as inadmissible.
Therefore, according to
Decision 731/2019, which was published after the resolution of the majority of
cases in the care of the courts aimed at paying or exercising remedies for
appeals, must comply with the following:
- The Court finds that the new constitutional law applies to
pending situations but also to those who will appear in the future, the scope
of Art 147 is not conditioned by the time of the civil trial
- The constitutional effects of the Constitutional Court's
decisions on pending cases have been established
- Courts are obliged to apply this decision only in cases
pending at the time of publication of the new Constitutional Law, where the
provisions are applicable, and where the exception of unconstitutionality until
its publication was invoked.
- The decision will not be applied in the cases definitively
resolved until the date of publication of the legislation, but only in cases
pending before the courts.
