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1 Persp. Bus. L.J. 1 (2012)

handle is hein.journals/perbularna1 and id is 1 raw text is: DEVELOPMENTS IN THE CONSTITUTIONAL REVIEW. CONSTITUTIONAL COURT BETWEEN THE STATUS OF NEGATIVE LEGISLATOR AND THE STATUS OF POSITIVE CO-LEGISLATOR Lecturer Marieta SAFTA1 Abstract The study wants to emphasize that Constitutional Courts belonging to the European model depart from their traditional role as negative legislator - which refers to the effect of their acts consisting in removal from the legal system of those rules contrary to the Basic Law -, becoming, to a certain extent, a positive legislator. Official interpreters of the Constitution, Constitutional Courts assume, sometimes, a role of co-legislators, creating provisions they deduct from the Constitution - when controlling the absence of legislation or legislative omissions -, and revealing the content of constitutional and even infraconstitutional rules accordingly with the Constitution in their case-law, whose effects are nothing but specific forms of,, impulse or ,,coercion of the legislator to proceed in a certain sense, and whose continuous development guides the evolution of the entire legal system. Case - law selected presents ways in which the Constitutional Court of Romania is associated to law-making activity. Without minimizing in any way its traditional role as negative legislator, the study refers mainly to acts and situations that give expression to the creative role of the Constitutional Court of Romania. Key words: constitutional review, negative legislator, positive legislator, constitutional loyalty, rule of law, effects of the decisions of the Constitutional Court JEL Classification: K10 I. Introduction The acts delivered by Courts (Tribunals, Councils) in exercising their duties have a specific legal regime determined, on the one hand, by the status of these authorities and, on the other hand, by the fact that the effects produced by these acts are enshrined in the Basic Laws of States. This study refers to the European model of constitutional review that entrusts a specially empowered body with this type of review. The Constitutional Courts belonging to that model are not courts of law in the strict sense of the concept, they do not fall into any of the three traditional powers - legislative, executive and judiciary but, as the Romanian Constitutional Court ruled in one of its decisions2, support the smooth operation of these powers, within the constitutional relationships of separation, cooperation and mutual control. This position of the bodies of constitutional jurisdiction is legitimized, in fact, even by these powers - involved in the procedure for appointing constitutional judges - powers which, in turn, are chosen by the electorate . It is noted in this connection that, in States that have opted for the European model of review of constitutionality of laws, the regulations of reference - the Constitutions, respectively the laws on the organisation and functioning of the Constitutional Courts /Tribunals - provide that judges are appointed by 4 representatives of the highest authorities in the State, usually political bodies par excellence In Romania, pursuant Article 142 paragraph (1) of the Constitution, the Constitutional Court is the guarantor for the supremacy of the Constitution, and, pursuant Article 1(2) of Law 47/1992 on the organisation and functioning of the Constitutional Court5, is ,,the sole authority of constitutional jurisdiction. In exercising the powers under the Constitution and its ' Marieta Safta - associate professor - lecturer to The Bucharest University of Economic Studies, Department of Law first assistant magistrate to the Constitutional Court of Romania, marieta.safta@ccr.ro 2Decision 1/2011 on the referral of unconstitutionality of National Education Law, Official Gazette, Part I, no.135 of 23 February 2011 3see loanVida, Constitutional Court of Romania, Politics justice or justice politics, 45 (Official Gazette, Bucharest, 2011) 4M. Safta, Garanties de l'independance des juges constitutionnels dans les pays de l'Union Europ6enne, Bulletin of the Central European Academy of Sciences, Letters and Arts no.2/2011 5Monitorul oficial al Romfiniei (Official Gazette of Romania), Part I, no.807 of 3 December 2010

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