The fundamental issue that Ilie Bolojan’s camp wishes to bring to the attention of the Constitutional Court is the nomination of Adrian Veștea (PNL) as prime minister, given that President Nicușor Dan did not hold further consultations following Eugen Tomac’s withdrawal, as required by Article 103 of the Constitution.
Article 103 of the Constitution, also known as the Investiture, states: “(1) The President of Romania designates a candidate for the office of Prime Minister, following consultation with the party holding an absolute majority in Parliament or, if no such majority exists, with the parties represented in Parliament.”
On the other hand, supporters of Nicușor Dan argue that the nomination of Adrian Veștea as Prime Minister took place under the same procedure, with Eugen Tomac having resigned his mandate as Prime Minister-designate.
Neither the Constitution nor the Constitutional Court of Romania has yet determined whether the President of Romania may nominate a candidate for the office of Prime Minister in the event that a previously nominated Prime Minister resigns.
However, a series of decisions by the Constitutional Court of Romania over the past 12 years clearly establish the scope of the President of Romania’s influence in the nomination of a Prime Minister of Romania, as per Article 103 of the Constitution.
The Constitutional Court’s most recent decision on the appointment of the prime minister dates from 2020 and concerns a constitutional legal dispute between the President of Romania (Klaus Iohannis) and Parliament, when the former president appointed Ludovic Orban as prime minister after he had been dismissed by a vote of that same Parliament. Here is what the Constitutional Court’s decision states:
“According to the Constitutional Court’s case law regarding these provisions, ‘the candidate nominated by the President for the office of Prime Minister does not represent the President’s exclusive choice, but rather the result of consultations and/or negotiations between the President and the political party holding an absolute majority in Parliament, or among the parliamentary parties if no such majority exists.’” (Decision No. 875 of December 19, 2018, cited above, para. 65)
Consequently, even if, as noted in the arguments presented in this case, the procedure governed by Article 103(1) of the Constitution is a flexible one, it does not permit the discretionary exercise of the President of Romania’s authority.
Within this framework, “neither the electoral results of the electoral competitors nor the purpose of the procedure—namely, the designation of a candidate capable of securing a parliamentary majority to obtain a vote of confidence—can be ignored.” (Decision No. 80 of February 16, 2014, published in the Official Gazette of Romania, Part I, No. 246 of April 7, 2014, para. 318)
Therefore, “The President of Romania, unable to act as a decision-maker in this procedure but rather as an arbiter and mediator between political forces, has only the authority to designate as a candidate the representative proposed by the political alliance or political party holding an absolute majority of parliamentary seats or, in the absence of such a majority, the representative proposed by the political alliance or political party that can secure the parliamentary support necessary to obtain a vote of confidence from Parliament.” (Decision No. 80 of February 16, 2014, cited above, para. 319).
These considerations, adopted by the Constitutional Court in the context of examining a constitutional amendment initiative, are generally binding.
They concern the interpretation and application of the current constitutional framework, substantiating, with reference to Article 152 of the Constitution, the finding of unconstitutionality of the provisions regarding the procedure for the investiture and appointment of the Government that the initiators of the constitutional amendment bill sought to introduce. (see paragraph 326 of the aforementioned decision).
Thus, taking into account the aforementioned reasoning, by Decision No. 80 of February 16, 2014, which is final and generally binding, the Constitutional Court found unconstitutional “the amendment to Article 103, paragraphs (1) and (3) of the Constitution, as well as the addition of three new paragraphs, paragraphs (31) to (33), to Article 103 of the Constitution, regarding the procedure for the President of Romania to designate the candidate for the office of Prime Minister,” since “it violates the limits of the revision provided for in Article 152 of the Constitution.” (Art. II, point 19 of the operative part),” states the CCR.
As the Constitutional Court also notes, the same conclusions are found in the 2018 decisions (legal conflict between the President and the Prime Minister), as well as in Decision 80 of 2014, on the proposal to revise the Constitution, where the recitals are binding, the letter and spirit of Article 103 being that the President of Romania, in appointing the Prime Minister, cannot “break away” from the parliamentary parties resulting from democratic elections.