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universul juridic magazin
Revista Română de Drept Privat

The legislative function of the Constitutional Court: a daily battle for power between the institutions of the State. Critical examination of the Decision No. 262 of May 5, 2016

The article performs a critical analysis of the reasons grounding Decision no. 262/2016 of the Constitutional Court, by which the constitutional judges found that the provisions contained in art. 82 para. (2) of Law no. 303/2004 on the statute of judges and prosecutors are constitutional insofar as the term ‘judge’ includes the Constitutional Court judges. The research outlines the fragility/manifest unfoundedness of the arguments relied upon by the Constitutional Court in delivering the above mentioned decision, i.e. (i) the common constitutional foundation of the statute of both ordinary and constitutional judges (ubi eadem ratio, idem ius) and (ii) the existence of common statutory elements for constitutional and ordinary judges, with the aim of underlining the abuse of rights committed by the Constitutional Court. The study also raises „a warning signal” concerning the consequences stemming from the decisions delivered by the Constitutional Court, by which it „usurps” the Parliament’s normative powers, thus, indirectly, but unequivocally becoming a third chamber thereof.