Cum aplicarea mecanică a normei juridice aprinde rugul pe care este sacrificat dreptul. Comentariu al Deciziei Curții Constituționale nr. 702/2019
How the mechanical application of the legal norm sets on the fire on which the law is sacrificed. Commentary on the Decision of the Constitutional Court No 702/2019

Summary/Abstract: This study aimed to develop a theoretical analysis configured in the matrix of a critical examination on the rulings of the Constitutional Court of Romania contained in the Decision No 702/2019. To this end, there were examined the conclusions promoted by the constitutional contentious court, which applied, in support of its point of view, the principle of equal treatment, constitutional rule, as well as of proportionality, praetorian construction, promoted by the case law, from which it resulted that, from a legal perspective, the disabled pensioners who acquired this legal condition based on the Law No 19/2000 will benefit from the application of the correction index regulated by the Law No 263/2010, if at the time of the ex officio transformation of the invalidity pension into an old-age pension the latter law was in force. In order to reach this solution, the Constitutional Court of Romania invoked the circumstance that for these pensioners it is finally established the pension according to Law No 263/2010, that the old-age pension is the only „stable” legal formula of the right to a pension and that excluding these persons from the benefit of increasing the amount of the pension, by capitalizing the correction index, represents an unacceptable discrimination in constitutional order, illustrating an unreasonable excess not based on an objective and rational purpose.Similarly, the Constitutional Court of Romania supported its solution promoted by the Decision No 702/2019 resorting to an interpretation, close to the legal „heresy”, of the legal phrase „initial registration for pension” and decided, bluntly, that the legislator wanted us to understand by this expression, exclusively, the concept of old-age pension, as a normative reference in connection with the capitalization of the correction index. Vis à vis to this solution, we have emphasized in detail, concretely and argued, the reasons why we consider that the solutions proposed by the Decision No 702/2019 are completely erroneous both from the perspective of the constitutional principles concerning the matter, and in relation to the legal rules, which fix the functional competence of the Constitutional Court of Romania. Thus, we have emphasized the fact that Law No 19/2000 did not regulate the correction index and that, regardless of the type of pension granted to a person during the period of application of this law, the beneficiary of the pension could, neither illo tempore, nor after the entry into force of the Law No 263/2010, access this legal benefit (correction index), considering the application of the rule tempus regit actum. We also pointed out that the Decision of the Constitutional Court No 207/2019 illustrates the forbidden interference of the constitutional contentious court in the functional competence of the courts in that it interprets the law, in its application, passing „nonchalantly” the limits of its own competence, circumscribed only to verifying the compliance of the law with the constitutional provisions. In conclusion, we have pointed out, moreover, in accordance with some preliminary rulings of the High Court of Cassation and Justice, which we have developed in their argumentative substance, that the rule of non-retroactivity of the law always has priority in application, so that the „addition” with legal bonuses of some rights, including the right to pension, pursuant to some laws subsequent to the acquisition of rights is, as a rule, contrary to the letter and spirit of the Constitution.

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