Is a politically appointed court still a court? The old dilemma of kelsenian constitutional courts could not be more topical in the case of the Romanian Constitutional Court, which recently issued a decision that shattered a constitutional principle underlying every democratic system: the principle of non-retroactivity. In this decision, a majority of 5 judges over 3 seems to have lost not only the moral and legal compass necessary to be an independent judge at this level, but also the will to even hide this absence of any elementary landmarks of independence. The legal and political science scholarship, a large part of the legal practitioners, and the public were taken aback and were outraged by what seems to be a decision adopted under political pressure by a thin majority of judges. The political influence is probable in this case not only because of the tense political context of the country, but also because such an infringement of an ancient principle of law by a court at this level – be it a politically appointed court as it is – cannot be otherwise explained. Moreover, in doing so, the Constitutional Court used the principle of rule of law to justify the complete disregard of the non-retroactivity principle, a core element of the rule of law itself. Constitutional justice, in this case, was not blind, but driven by political interest and, as described in many reactions and analyses after the fact, used as a tool of political vendetta.

Context

Under the pretext of fulfilling one of the NRRP benchmarks, in an already troubled political context marked by the break of the governing pro-European coalition, the political party that withdrew from the coalition (PSD – Social Democratic Party) initiated a few changes to the law on integrity of public offices. The draft amendment law passed in Parliament with the votes of the extremist-sovereigntist party AUR. Two of the changes became controversial from the outset: the extension of the obligation to submit wealth statements to the “persons who are in relationships similar to marriage” with the public officers or dignitaries, and a provision that introduced a new sanction for appointed or elected officers found in incompatibility or conflict of interests by a report from the National Integrity Agency or by a final judgment of a court. The sanction in question added to the existing sanctions and consists in the immediate cessation of the mandate and the prohibition to run for an elected office for a period of three years from the date of the report or final judgment. This was allegedly directed to one of the most important political adversaries, the leader of the opposition party USR (Save Romania Union) and mayor of Timisoara, who had been found in conflict of interests by a final decision of the Supreme Court earlier in 2026. However, under the law in force, the sanction was the prohibition to hold the same elected office for three years after the end of the term, and not the immediate cessation of the term of office, and the prohibition to hold any elected office for a period of three years from the final judgment.

The amendment law was immediately referred to the Constitutional Court before promulgation, both by the President of Romania, and by the members of Parliament belonging to the three remaining parties from the former coalition.

The events took place in an extremely tense national political context, marked by an open conflict between the parties that used to form a coalition of government that broke in May 2026. The coalition Government was dismissed by a vote of no-confidence, but it remained in place because the only prime-minister candidate proposed by the President of Romania since then failed to gather the necessary majority in Parliament. This enhanced the conflict between the center-right parties that remained in the dismissed government (who, according to the Constitution, must continue to govern, with limited powers, until the appointment of a new government) and the ad-hoc coalition formed between the center-left PSD and the extreme-right AUR, with no apparent solution than early elections. In this context, to neutralize a political opponent even by enacting a retroactive provision seemed to be a solution in the eyes of the ad-hoc coalition that can adopt laws in Parliament, but cannot gather a majority in order to pass a new government. The Constitutional Court’s decision 883/2026 came against the background of this chain of paradoxes – a so-called “pro-European” party (PSD) allied with a declared anti-European one (AUR), an ad-hoc majority that cannot govern, a dismissed government that still governs after more than five months, a President that is unable to appoint a valid prime-minister candidate – and in this chain of paradoxes lies the key of its otherwise incomprehensible outcome.

The Previous Law

The text of the integrity law before the changes defined the disciplinary offences of conflict of interest and incompatibility and prohibited persons found to be in a situation of incompatibility or conflict of interests from holding:

“any further public office or position (…), with the exception of elected offices, for a period of three years from the date of release, removal from that public office or position, or the statutory termination of the term of office. If the person has held an elected office, they may not hold the same office for a period of three years from the end of their term of office”.

The Modified Law

The new Article 25(2) sets forth:

“Any person who has been definitively found to have been in a conflict of interest or in a state of incompatibility (…) shall be barred from holding any further public or elected office or position (…) for a period of up to 3 years, commencing on the date on which the assessment report or the court judgment becomes final; from that moment, they (…) shall be disqualified from holding the office, public office or mandate, which shall cease by operation of law on the same date.”

The newly introduced paragraph (Article X (1) of the amendment law) reads as follows:

“Persons in respect of whom, by the date of entry into force of this Act, a definitive finding of incompatibility or conflict of interest has been made (…) shall, by operation of law, cease their office, public office or mandate 30 days after the date on which this Law comes into force.”

The new amendment clearly introduces a new sanction – the immediate cessation of the mandate – for persons who were found in conflict of interest in the past by final judicial decisions or integrity assessment reports, including those holding an elected office, for which the law in force already sets forth a special legal regime.

Following the unconstitutionality complaint, the Constitutional Court asked, according to the procedure, the authorities involved in the legislative process to give their opinions. All these authorities expressed the opinion that the impugned article was unconstitutional by infringing the non-retroactivity principle.

The Court’s Arguments

Firstly, the Court affirmed that “The new law will apply … both to legal situations that arise, are amended or cease to exist after that date, and to the future effects of past legal relationships.”

Furthermore, it stated that “the state has the constitutional duty to create a legal framework (…) able to ensure the trust of the citizens in public authorities and institutions”. Then, building-up on this shallow common-place stance of a very general nature, the Court’s argumentation went on invoking its own case law: “The principle of integrity in public office and the safeguards associated with it are integral, substantial, formative and guiding elements of the concept of the rule of law, the supreme value of the Romanian State within the meaning of Article 1(3) of the Constitution.”

Following this general statement, the Court brought forward the rule of law principle: “The concept of the ‘rule of law’, enshrined in Article 1(3) of the Constitution, implies the state’s ability to provide citizens with high-quality public services and to create the means to enhance their trust in public institutions and authorities. This necessarily entails the state’s obligation to impose ethical and professional standards (…). The state is obliged to create all the necessary conditions – and the legislative framework is one of them – for the exercise of its functions by professionals who meet criteria of professional competence and moral integrity”. Or, in other words, the state can justify the breach of a fundamental principle of law in order to “protect” its own image, or the image of any public office. This logic is more specific to authoritarian regimes than to democratic ones.

This was the moment when the legal compass regarding the non-retroactivity principle was lost: “The provisions of Article 1(3), read in conjunction with those of Article 16(3) of the Constitution, constitute the normative premises of constitutional rank that must be taken into account in order to give effect to the principle of the non-retroactivity of the law. A systematic interpretation of these values and principles … requires that the future effects of the legal situation arising prior to the entry into force of the new law on public integrity be regarded as an ongoing situation, to which the provisions of the new law apply.”

In other words, integrity cases that ended under the old law with final judgments, to which the sanctions existing under the old law were already applied (prohibition to hold a public office, with the exception of elected offices), are considered “ongoing situations” irrespective of the fact that they have been decided by final decisions and, therefore, can be reopened in the name of the state’s “obligation to increase the trust in public authorities”. This can result in new sanctions, inexistent at the moment of the offence, extending, thus, these new sanctions on all elected offices, which were exempted from the regular sanction under the old law, but had a special one – prohibition to hold the same office for a period of three years after the end of the term of office.

The Court falsely labelled the situations included in the impugned article as “situations of conflict of interests and incompatibility that have not been exhausted” and held that such a state of facts “leads to discrediting the public office/mandate”. Furthermore, the Court affirmed that such an “alteration” is a “future effect” of the offence, which can, therefore, be submitted to new sanctions under a new legislation: “Such a distortion of the authority and image of the civil service represents a future effect – governed by the new law – of the legal situation arising from the act of the civil servant … committed under the old law” (para. 122). Based on these arguments, the Court held that the new law allegedly does not apply to old facts, but only to their “future effects” and therefore it is not retroactive if it applies new sanctions to old offences.

The Dissenting Opinion

Three of the judges (of which two are the only academics in this composition of the Court, professors Elena-Simina Tanasescu and professor Dacian-Cosmin Dragos) wrote a dissenting opinion which is a “basic course” on non-retroactivity, i.e. something that first-year law students learn on the matter, at the Theory of Law and Constitutional Law courses. Moreover, the three dissenting judges criticized the new sanction for more reasons related to the quality of the law, not only for being retroactive:

“The legislative solution under criticism mandates, as it stands and without exception, the automatic termination of office, public office or term of office in any situation involving a conflict of interest or incompatibility committed by any public official, irrespective of the provisions of the specific laws governing them.”

But the dissenting opinion is, in itself, a compendium of the previous case law of the Court on the non-retroactivity principle: it lists all significant decisions in which the Court relied on this principle, including some related to the various public offices. In other words, in many previous decisions, the Court itself declared various legal texts that attempted to retroactively put an end to elected or appointed public offices as unconstitutional. The dissenting judges explained, in an almost scholarly manner, that the illicit behavour, as well as the sanction, are determined according to the law in force at the time of the offence, and no further/more severe penalties can be imposed by future legislation. They affirmed that the impugned provisions:

“[P]roceed from the erroneous premise that an administrative sanction currently being enforced in respect of a situation of incompatibility or conflict of interest established and sanctioned prior to the entry into force of the new law could be such as to determine the legal classification of the very situation of incompatibility or conflict of interest thus sanctioned as a ‘facta pendentia’. Such a characterisation would lead to the conclusion that the enforcement of an administrative sanction could allow for the reconsideration of the entire legal relationship under substantive law and its treatment as still  ongoing/unexhausted/unconsumed, which is in a clear contradiction with the principle of non-retroactivity of the law.”

Conclusion

The very core of the non-retroactivity principle is revealed by its application in criminal law: no penalty can be applied retroactively to offences committed before its enactment. It is a guarantee against arbitrariness, abuse and breach of fundamental rights and it is so essential that it needs no explanation. The Romanian Constitutional Court’s argumentation in this already (in)famous decision went in a completely wrong direction, from a legal, logical, and moral point of view.

Thus, the Court not only justified a wrong conclusion by resorting to false premises, but used the very principle of rule of law to do it. In a nonsensical wording, that hides the practical impossibility to justify a breach of the non-retroactivity with logical arguments, the Court said that „it is necessary to harmonise the legal effects produced under the previous legislation with the new legislative approach and solution in order to ensure the coherence of the State’s actions in the field of the civil service, taken in the broadest sense.” In other words, by using this reasoning, the legislator can intervene at any time to “correct” situations in the past by enacting retroactive laws, in the name of “protecting” superior values – in this case, the integrity of public office seems to be considered prevalent to the very core of the rule of law principle. Or, bluntly put, constitutional principles seem to have “ranks” according to the Court, based on random assessment of the legislator.

In brief, the Romanian Constitutional Court created a distorted image of the non-retroactivity principle by justifying any future breach of it by “higher ends”. In the future, the legislator could invent new sanctions designed to remove political opponents from office, relying on this decision as a “precedent” for the interpretation of a fundamental constitutional principle. The absurd, Kafkian nature of the situation is self-evident: a shallow and heteroclite majority of five politically-appointed judges decided against a centuries-old rule of law principle, which is not only a major breach of national constitutional law, but, also of the EU law.