Revolutionaries’ allowances stay capped: CCR dismisses ten challenges at once

The allowances granted under the Law of Gratitude remain capped, and the Constitutional Court says the Government was entitled to impose that cap by emergency ordinance. Ten cases, opened before nine tribunals around the country, were joined and dismissed in the same session. This is the second time this summer that the constitutional court has refused to widen a compensatory right granted by a special law, after it also established that it cannot add new categories to the law on compensation for those persecuted by the communist regime.

Law no. 341/2004, known as the Law of Gratitude, grants allowances to persons who took part in the Revolution of December 1989, in the anti-communist workers’ revolt in Brasov in November 1987 and in the one in the Jiu Valley, Lupeni, in August 1977. The sums are paid through the county pension houses, and the authors of the exception of unconstitutionality had sought their recalculation.

The two challenged texts are short and do the same thing. Article IX(2) of Government Emergency Ordinance no. 130/2021 provided that, in 2022, the allowances are granted in the amount due or in payment in December 2021. Article XVIII(1)(n) of Government Emergency Ordinance no. 168/2022 provided that, in 2023, they are kept at the December 2022 level. According to the submissions of the authors of the exception, the chain of annual caps reaches all the way down to the level paid in December 2010.

What it changes in practice

The first effect is that the cap remains valid for 2022 and 2023. The Court found the two texts constitutional in relation to the criticisms formulated, by unanimous vote, and the decision is final and generally binding under Article 147(4) of the Constitution. The proceedings seeking recalculation on this basis are left without their main argument.

The second effect concerns a litigation strategy, not just one budget year. The authors did not challenge the substance of the cap, but the procedure: they argued that, if the Government repeats the same measure every year, the situation can no longer be extraordinary. The Court replied that the successive adoption of emergency ordinances in one field does not exclude their extraordinary character, as long as each act is justified by objective circumstances. The argument of repetition can no longer be used as such.

The third effect concerns the perimeter of the review. The Court refused to examine the two ordinances as a whole and limited the subject matter to the two challenged paragraphs, because the remaining texts regulate distinct social relations, with no intrinsic connection between them. Anyone who wants to challenge an emergency ordinance for the absence of an extraordinary situation must indicate exactly which provisions are targeted.

The fourth effect is the most important in the long run and is not limited to revolutionaries. The Court repeats, citing four earlier decisions, that allowances of a compensatory nature have no constitutional foundation. The conclusion it draws explicitly: the legislature may grant them or not, and once it has decided to grant them, it may set their frequency and the specific arrangements, including their withdrawal in the future.

What has changed compared with the previous situation

At the level of the statutory texts, nothing. Both provisions had a limited application in time, the first only in 2022, the second only in 2023, so they were no longer in force at the date of the judgment. The Court examined them nonetheless, on the basis of Decision no. 766 of 15 June 2011, because their legal effects continue to be produced in the proceedings in which the exception was raised.

What did change is the treatment of the central argument. The authors relied on Decision no. 650 of 15 December 2022, in which the Court had upheld an extrinsic criticism. This time the Court uses the same decision in the opposite direction: from it, it takes only the technical rule that extrinsic review may be carried out on specific provisions of a heterogeneous ordinance, not the conclusion that repeated caps would be unconstitutional.

It has also become clearer what exactly the constitutional court verifies when it examines urgency. The Court does not look at how often the measure has been repeated, but at the preamble of each ordinance. For Government Emergency Ordinance no. 130/2021 it noted a general consolidated budget deficit estimated at 6.2% of gross domestic product, a fall in budget revenue of 0.5% of gross domestic product and insufficient funds in the National Single Health Insurance Fund, in the context of the health crisis. For Government Emergency Ordinance no. 168/2022 it noted the energy crisis, inflation and a deficit that risked reaching 10.3% of gross domestic product in 2023.

Finally, the decision marks a distinction that counts in any future dispute over monetary rights granted by a special law. The right to a pension is provided for and guaranteed by Article 47(2) of the Constitution. The allowance under Law no. 341/2004 has no such foundation: it is a statutory right, granted as an option of the legislature. The two are not defended in the same way.

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