Romanian President Traian Basescu sent Wednesday, February 26, to the President of the Constitutional Court, Mr. Augustin Zegrean, in accordance with Article 146 letter. a) of the Constitution and Article 15 of Law no. 47/1992 on the organization and functioning of the Constitutional Court, republished, with subsequent amendments, a complaint of unconstitutionality of the law approving Government Emergency Ordinance no. 57/2013 amending and supplementing Law no. 220/2008 on establishing the promotion system of energy production from renewable energy sources.
Lord Augustin Zegrean
Constitutional Court President
Pursuant to Article 146 letter. a) of the Constitution and Article 15 of Law no. 47/1992 on the organization and functioning of the Constitutional Court, republished, with subsequent amendments, made the following.
Unconstitutionality of the law approving Government Emergency Ordinance no. 57/2013 amending and supplementing Law no. 220/2008 on establishing the promotion system of energy production from renewable energy sources.
Grounds for referral are:
Law approving Government Emergency Ordinance no. 57/2013 amending and supplementing Law no. 220/2008 on establishing the promotion system of energy production from renewable energy sources, PL -x no. 227/2013 was adopted by the Chamber of Deputies, as the room decision, on December 17, 2013 and sent for promulgation Romanian President on 19 December 2013.
On January 10, 2014, we requested reconsideration of the law. The review request was rejected both by the Senate, as a first notified Chamber and the Chamber of Deputies, which as room decision, adopted the law in its original form on 11 February 2014 and, on February 19, 2014, forwarded it for promulgation.
Government Emergency Ordinance no. 57/2013, approved by Law sent for promulgation amended aid scheme 2011/N-RO SA 33134. According to Article 108 (3 ) of the Treaty on European Union " Commission shall be informed in time to submit comments on any plans to grant or alter aid."
Romanian Government issued the emergency decree on 4 June 2013, it was published in the Official Gazette of Romania, Part no. 335 of 7 June 2013, with effect from 1 July 2013. As a result, on June 24, 2013 the European Commission sent a letter to the Permanent Representation of the European Commission, which stated that it was not sent any notification as defined in paragraph ( 3 ) of Article 108 of the Treaty on the modification scheme aid.
As a result of this letter, on August 2, 2013, almost two months of the enactment, the Department of Energy of the Ministry of Economy has sent the Commission a letter of notification, registered in SANI (State Aid Notification Interactive System ) as indicative SA 37177 2013/PN – Amendments green certificates support scheme.
The Commission responded to this letter on October 3, 2013, claiming that: " Following a preliminary examination for the purposes of paragraph 15 of the Notice on a simplified procedure, we wish to inform you that the Communication on a simplified procedure proved to be unenforceable on pre-notified measure because there are several amendments to the original scheme of support to be analyzed, and the Commission has already received several complaints regarding this measure to be taken a position. Therefore, pre-notified measure did not appear to qualify to be treated in accordance with this Notice.
So far pre-notified, once notified, will be treated in accordance with the normal procedures laid down in Regulation 659/199 "and" notification procedure proved to be incomplete ( … ) to enable the Commission to adopt a decision as soon as possible, suggest that the Romanian authorities to formally notify the measure and include any additional information required in the notification. "
However, in the same communication dated October 3, 2013 are listed measures for which the invitation notice: temporary postponement of green certificates until 2017-2018, changes in adjustment mechanism ( overcompensation ), limiting the credentials to the levels the National Action Plan for Renewable energy ( PNAER ) the possibility of requesting financial guarantees to connections, trading green certificates market only centralized photovoltaic cancellation support on agricultural land, cancellation support energy delivered over schedules and notifications taking green energy certificates based on firm contracts.
In conclusion, we observed that, in the opinion of the European Commission notification procedure and notification required by Article 108 (3 ) of the Treaty on the Functioning of the European Union has not been observed, which could trigger an infringement procedure against Romania.
Considering the above arguments, given the violation of Article 108 (3 ) of the Treaty on the Functioning of the European Union, both in the process of issuing the Emergency Ordinance and in the approval of the Parliament was not being respected procedure required by the Treaty to initiate or change the state aid schemes, demonstrate that the law approving Government Emergency Ordinance no. 57/2013 amending and supplementing Law no. 220/2008 on establishing the promotion system of energy production from renewable energy sources transmitted Romanian President for promulgation, is unconstitutional because it contravenes Article 148. ( 4) of the Constitution, according to which "the Parliament, the President of Romania, the government and the judiciary guarantees the fulfillment of the constituent treaties of the European Union ".
Romania as a member state of the European Union must fulfill its obligations under this quality, and (4 ) of Article 148 of the Basic Law is an institutional guarantee the proper functioning of the Romanian state in the European Union, the fulfillment by he obligations of the whole European legal order. Such institutional guarantee, as implemented through (4 ) of Article 148 of the Constitution covers all state powers, participation in supranational organization primarily involving law enforcement in the European Union, all public authorities are required to contribute within the limits of their constitutional powers, to respect and implement the provisions of the European regulatory system.
Moreover the obligation incumbent on the legislature and the executive, as the main public authority which is in permanent contact with EU institutions.
Given the above, we request that declared unconstitutional law approving Government Emergency Ordinance no. 57/2013 amending and supplementing Law no. 220/2008 on establishing the promotion system of energy production from renewable energy sources.
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