He challenged the judgment, not the law: how a plea of unconstitutionality is lost

A plea of unconstitutionality can look perfect on paper and still be rejected without any analysis, if it lacks one single thing: the criticism directed at the law. The Constitutional Court rejected as inadmissible the challenge brought against Article 103 paragraph (1) letter c) of Government Emergency Ordinance no. 195/2002 on road traffic, in the wording in force before the amendment made by Law no. 152/2019. This is the second decision on the suspension of the right to drive published on the same day, alongside the one in which the Court confirmed that the 90 days for exceeding the speed limit remain a fixed duration.

The challenged text concerns a situation that many drivers discover only once they are in it. The suspension of the right to drive is ordered for 90 days where the act was investigated as a criminal offence against the road traffic regime, as well as in the case of an accident resulting in the death or bodily harm of a person, and the court or the prosecutor ordered the closing of the case (clasare, the Romanian procedural decision closing a criminal file), a waiver of criminal prosecution, a waiver of the imposition of a penalty or a deferral of the imposition of a penalty. The condition is that, for the traffic rule that was breached, the ordinance provides for suspension.

In other words, even if the criminal proceedings end without a penalty to serve, the driving licence can still be suspended by administrative means. The four solutions are not of the same nature: the closing of the case and the waiver of criminal prosecution stop the file, whereas the waiver of the imposition of a penalty and the deferral of the imposition of a penalty presuppose established guilt, only without a penalty being served. It is precisely this mechanism that was challenged, in a case pending before the Bucharest Court of Appeal, the administrative and tax litigation division.

The same series of traffic offences includes the decision in which the Court clarified the moment against which blood alcohol is measured for the offence under Article 336 of the Criminal Code, namely the moment of driving and not the taking of the sample, under CCR Decision no. 136/2026.

What it changes in practice

The first effect is the very reason for the rejection, and it deserves careful reading by anyone considering raising a plea. The Court found that the request formally contained all three required elements: the challenged text, the constitutional provision claimed to have been breached and the author’s reasons. The problem lay in the content of those reasons: they concerned the facts of the case and consisted of criticism directed at the judgment delivered by the first instance court.

The second effect is the threshold the Court states explicitly. Nor could the existence of a minimum plea of unconstitutionality be reasonably established from the comparison between the challenged text and the constitutional provisions invoked. This is the line between a plea that gets examined and one that is rejected from the outset, and the basis invoked is Article 10 paragraph (2) of Law no. 47/1992, with a reference to Decision no. 1,313 of 4 October 2011.

The third effect is practical. The author had invoked five constitutional benchmarks: Article 1 paragraph (3) on the supreme values of the Romanian state and paragraph (5) on the quality criteria a law must meet, Article 21 on free access to justice, Article 24 paragraph (1) on the guarantee of the right to defence, Article 52 paragraph (1) on the right of a person injured by a public authority, and Article 115 paragraph (6) second sentence, which limits the field of emergency ordinances by prohibiting them from affecting the regime of the fundamental institutions of the state or the rights, freedoms and duties laid down in the Constitution. Neither the number nor the weight of these provisions mattered, because the reasoning did not connect them to any problem in the law.

The fourth effect is that the text remains untouched. Being a finding of inadmissibility, the decision says nothing about the constitutionality of Article 103 paragraph (1) letter c). It neither confirms nor rejects it. Anyone who wants to challenge it can do so again, with reasoning built differently.

The fifth effect is technical, but useful. The text had been amended after the Court was seised, by Law no. 152/2019, without the new rules taking over in full the legislative solution under challenge. The Court examined it nonetheless, in its old wording, relying on Decision no. 766 of 15 June 2011: constitutional review also extends to provisions whose legal effects continue to be produced after they cease to be in force.

What has changed compared with the previous situation

In law, nothing. The decision does not change the 90 day suspension rule and does not create a new norm. It is a matter of constitutional procedure, not one of substance.

Something has changed, however, for anyone who reads case law: one more very clear example of what an inadmissible plea for lack of reasoning looks like. This is not a careless or incomplete request, but a formally complete one in which the reasons concern something other than the law. The Court names the problem directly: criticism formulated in relation to the judgment delivered by the first instance court.

A second clarification concerns the relationship between the two routes. Dissatisfaction with a judgment is dealt with through the means of appeal provided by law, an appeal or a second appeal, as the case may be. The plea of unconstitutionality is not an additional means of appeal and cannot be used to repair a ruling considered to be wrong. It is a mechanism for reviewing the law that was applied, not the way in which it was applied.

A third clarification concerns the old wording of the text. Anyone looking today for the applicable rule must read Article 103 paragraph (1) letter c) in the form given by Law no. 152/2019, not the form reproduced in the decision, which is the one applicable to the original case.

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