The ban on entering Romania stands: the Constitutional Court dismissed the challenge without ruling on the merits

A foreign national asked the Constitutional Court to strike down the rules under which he can be banned from entering Romania, but he built his argument on a scenario that did not appear in his own case file. The Court dismissed the plea as inadmissible, without ruling on the merits. Decision no. 764 of 11 December 2025, published on Tuesday in the Official Gazette of Romania, is the second of the same day by which the Court refuses to examine a plea because of a flaw in the way it was framed, after the one concerning the court stamp duties in administrative litigation. Both point back to the same landmark from fifteen years ago.

The contested provisions are two paragraphs of Government Emergency Ordinance no. 194/2002 on the status of foreign nationals in Romania, republished in Official Gazette of Romania no. 421 of 5 June 2008. The first, Article 106³(2), states who orders the entry ban and in what situations. The second, Article 106⁴(8), sets the duration for one particular category.

The author of the plea, Alejandro Daniel Anton, raised it in administrative litigation proceedings pending before the Bucharest Court of Appeal, Eighth Administrative and Tax Litigation Division, concerning a dispute over the status of foreign nationals.

What it changes in practice

What the two provisions actually say. Article 106³(2) provides that the ban on entering Romania is ordered by the General Inspectorate for Immigration or by the border police authorities also where the foreign national has not been the subject of a removal measure, as well as against the foreign nationals referred to in Article 8(1)(b) to (d) and in Article 8(2)(a) to (b¹), or who do not meet the conditions laid down in Article 6(1)(h). Article 106⁴(8) provides that, in the case of foreign nationals who have crossed the state border illegally or have attempted to cross it fraudulently, the duration of the entry ban is 5 years.

The argument put forward by the author. He submitted that the provisions breach equality before the law, because a person who has been expelled cannot benefit from a series of mechanisms in the Code of Criminal Procedure: the plea agreement, the abridged procedure based on the admission of guilt, the deferral of the imposition of the sentence, the suspension of the sentence under supervision and the reduction of the sentence by one third. He also argued that expelling a person against whom criminal proceedings are under way makes access to a fair trial impossible, since the trial would be conducted in the absence of the defendant, without observance of the principles of immediacy, adversarial argument and equality of arms.

Why the Court did not reach the merits. Because the case in which the plea was raised was administrative litigation, not criminal. The Court found that there was no relevant connection between the reasoning of the plea and the pending case, whose legal basis is Article 106³(5), that is, precisely the provision on challenging the measure. The author inferred unconstitutionality from a hypothetical situation: one in which the expelled person would be a defendant in criminal proceedings pending before the Romanian courts.

Suppositions do not rebut the presumption of constitutionality. The Court restates, from Decision no. 678 of 29 September 2020, paragraph 129, the rule that complaints of unconstitutionality must concern present and specific acts, facts or conduct. Mere suppositions fall outside the scope of constitutional review. The basis for the dismissal is Article 29(1) of Law no. 47/1992, which requires the plea to be connected with the resolution of the case.

The remedy, restated by the Court. In the very reasoning for the dismissal, the Court quotes Article 106³(5): the measure banning entry into Romania may be challenged by the foreign national within 10 days of notification, before the court of appeal in whose territorial jurisdiction the unit that ordered the measure is located. This is the piece of information with the most direct practical value in the whole decision.

Not one of the authorities notified replied. The Presidents of the two Chambers of Parliament, the Government and the Ombudsman did not send the points of view requested of them. The only position expressed outside the referring court was that of the Public Ministry, which likewise asked for the plea to be dismissed as inadmissible. The Bucharest Court of Appeal, unlike in the other cases of that day, did state its opinion: it considered the plea unfounded.

What has changed compared with the previous situation

In law, nothing. The provisions remain in force, and the Court did not rule on their conformity with the Constitution. The entry ban continues to be ordered on the same conditions, and the duration of 5 years for illegal border crossing remains unchanged.

What does become clearer is a matter of procedural strategy. A plea of unconstitutionality cannot be used to challenge, in administrative proceedings, consequences that the provision might have in a possible criminal case. The connection with the pending case is not a formality but a condition of admissibility: if the reasoning concerns a field other than the one in which the case is being tried, the Court does not proceed to the analysis.

The second clarification concerns reliance on hypothetical situations. A provision does not become unconstitutional because, in a combination of circumstances that has not yet occurred, it might produce an unfair outcome. The complaint has to concern present and specific facts.

It is worth noting that both inadmissibility decisions published on the same day rest on the same landmark, Decision no. 1.313 of 4 October 2011, which set out the three elements of any plea: the contested provision, the constitutional provision relied on, and the reasoning that shows the conflict between them. Only the missing element differs: there it was the reasoning itself, here it was the connection between that reasoning and the case.

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