Annulment of appointment of ANRE Directors - unconstitutional
On 8 December 2015, the Constitutional Court of Moldova delivered a judgment on the constitutionality of Parliament Decision No. 224 of 3 December 2015 on abrogating the Parliament Decisions on the appointment of the Board of Directors of National Agency for Energy Regulation (ANRE).
Circumstances of the case
The case originated in the complaint lodged with the Constitutional Court on 4 December 2015 by MPs Andrian Candu, Serghei Sîrbu and Ștefan Creangă.
In fact, by the challenged act, the Parliament on 3 December 2015 abrogated the Decision No. 182 of 12 July 2013 on the appointment of Messrs. Ghenadie Pârțu and Iurie Onica as Directors of the Administrative Board of ANRE and Decision No. 340 of 24 December 2013 on the appointment of Messrs. Octavian Lungu and Sergiu Ciobanu as Directors of the Administrative Board of ANRE.
The authors claimed that by operating an annulment of the appointment, the Directors of the Administrative Board of ANRE were in fact dismissed, thus being eluded the grounds in this respect provided for by law in an exhaustive manner. In their view the challenged decision is contrary to Article 66.j of the Constitution.
The Constitutional Court ruled on the complaint in the following composition:
Mr Alexandru TĂNASE, President,
Mr Aurel BĂIEȘU,
Mr Igor DOLEA,
Mr Tudor PANȚÎRU,
Mr Victor POPA, judges
Conclusions of the Court
Hearing the reasoning of the parties and examining the case-files, the Court held that under Article 135.1.a of the Constitution, the Court is empowered to apply a constitutional review of over all the acts adopted by the Parliament, without making a distinction between normative and individual acts.
The Court found that the rule of law, an inherent principle of a democratic state, enshrined in Article 1.3 of the Constitution, imposes the duty to observe the law, including by the authority enacting it.
The Court noted that Article 66.j of the Constitution empowers the Parliament to elect and appoint State officials, in cases provided for by law.
The Court held that the act of "designation/appointment," in constitutional sense, is a consumed act and therefore is not susceptible to being abrogated, except the cases when the Constitutional Court finds, applying a constitutional review, certain fundamental flaws that affect the validity of the act itself (absolute grounds of nullity).
In respect of the decisions on appointment in this case, the Court held that once consumed the act cannot be annulled. A procedure of annulment of consumed acts is not and cannot be provided for, since it would distort legal order, undermining the legislative authority of the State, and affecting the legal certainty and even national security, in the event there is considered the possibility of returning to these acts, following a period of time, out of political or personal interests of the moment.
In this context, the Court stated that once the appointment is consumed, termination of office can take place only through the process of dismissal/resignation from office, following the procedure established by law.
In this regard, the challenged act provides for a legal nonsense, annulling a consumed act which has produced its effects.
Thus, without undertaking an assessment of the work of ANRE Directors, the Court noted that their dismissal may take place only under the conditions expressly provided by the special law (Article 4/2.4 and 4/2.6 of the Law on Energy), as follows:
a) loss of Moldovan citizenship;
b) impossibility to perform duties due to health reasons;
c) election to another office;
d) conviction for committing a deliberate crime and/or conviction to imprisonment by a final judgment of a court;
e) final conviction act establishing that he issued/passed an administrative act or concluded a legal act in breach of legal provisions concerning the conflict of interest;
f) in case of incompatibility, established by a final finding act.
The Court recalled that it has previously ruled in respect of similar situations (revocation of Prosecutor General by repealing his appointment, unfounded dismissal from office of the Director General of ANRE), including upon the request of some of the MPs who have adopted the challenged act in this case.
Considering its established case-law, the Court noted that the challenged decision was adopted by Parliament in flagrant disregard of constitutional norms, by obvious defiance of rule of law principle and supremacy of the Constitution, enshrined in Articles 1.3 and 7 of the Constitution.
Judgment of the Court
Stemming from the above reasoning, the Constitutional Court declared the complaint admissible and declared unconstitutional Parliament Decision No. 224 of 3 December 2015 on abrogating the Parliament Decisions on the appointment of Board of Directors of National Agency for Energy Regulation.
The Judgment of the Constitutional Court is final, cannot be appealed, shall enter into force on the date of passing, and shall be published in the Official Gazette of the Republic of Moldova.
This press-release is also available in Romanian.