Monday, March 9, 2020

How does the constitutional court's new decisions affect the courts?

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.

Concluding, it can be requested to the court, in writing, to pronounce a decision recital 415/2018 and 731/2019 being mandatory, in the case of files pending resolution concerning Law 77/2016.