Klaus Iohannis, PSD blow: a new referral to the Constitutional Court

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Klaus Iohannis, PSD blow: a new referral to the Constitutional Court

The President of Romania, Mr. Klaus Iohannis, sent the Constitutional Court on Monday, June 11, a petition for unconstitutionality on the Law on ensuring a high common level of security of the networks and information systems.

On May 24, 2018, the Parliament submitted to the President of Romania, with a view to promulgation, the Law on ensuring a high common level of security of the networks and information systems. We consider that by the way this law was adopted violates the provisions of art. 1 par. (5) to those of art. 119 of the Constitution, for the reasons set out below.

The Act subject to constitutional review transposes Directive (EU) 2016/1148 of the European Parliament and of the Council of 6 July 2016 on measures to achieve a high level of common EU network and information security. Thus, the normative act establishes the legal and institutional framework, the necessary measures and mechanisms in order to ensure a high level of security of the networks and information systems and to stimulate cooperation in the field.

Article 2, paragraph (2) of the Criminal Law provides that its provisions do not apply to institutions in the field of defense, public order and national security, as well as to the Office of the National Registry of State Secret Information. However, how the concepts of: network and information security are defined; national strategy on network and information security; essential service provider and digital services provider, corroborated with the provisions of the Annex, in which the sectors of activity covered by the law are presented, lead to the conclusion that the law regulates the security of the information and communication technology components related to national or European critical infrastructures, are defined in art. 3 of Government Emergency Ordinance no. 98/2010 on the identification, designation and protection of critical infrastructures.

It defines the national critical infrastructure as "an element, system or component of the national critical infrastructure that is essential to maintaining the vital functions of society, health, safety, security, social or economic well-being of individuals and whose disruption or destruction would have a significant impact at national level due to the inability to maintain those functions. "

Consequently, the normative act subjected to constitutional control has implications on critical infrastructures, which, according to the National Defense Strategy of the country, are part of the national security objectives, the law having direct implications for the country's defense system and national security.

However, according to art. 4 lit. d) point 1 of the Law no. 415/2002 on the organization and functioning of the Supreme Council of National Defense, this administrative authority approves the draft normative acts initiated or issued by the Government regarding the national security. Correlative, art. 9 par. (1) of the Law no. 24/2000 regarding the normative legislative technique for drafting the normative acts sti[CENSORED]tes that "In the cases sti[CENSORED]ted by the law, in the drafting phase of draft normative acts, the initiator must seek the opinion of the authorities concerned in their application, depending on the subject matter of the regulation".

Moreover, these legal provisions find their constitutional support in the provisions of art. 119 of the Constitution, according to which "the Supreme Council of National Defense organizes and coordinates in a unitary manner the activities related to the defense of the country and the national security ...".

Moreover, in its jurisprudence, in a similar situation, referring to a law on cyber security issues, the Constitutional Court invalidated the normative act as a whole, arguing that one of the mandatory stages of the legislative procedure, namely obtaining the opinion of the CSAT , has not been respected.

Thus, in Decision no. 17/2015, the Constitutional Court stated: "In the course of the legislative procedure, the initiator did not observe the legal obligation that the Supreme Council of Defense of the country approves the draft normative acts initiated or issued by the Government regarding the national security, the Court finds that the normative act was adopted in violation of the constitutional provisions of art. 1 par. (5) which enshrines the principle of legality and art. 119 on the tasks of the Supreme Council of National Defense. "

Considering these aspects and the fact that the criticized law was drawn up in violation of the legal provisions, without obtaining the opinion of the Supreme Council of Defense of the Country, we consider that the Law on ensuring a high common level of security of the networks and information systems contravenes art. . 1 par. (5) of the Constitution, according to which, "In Romania, the observance of the Constitution, of its supremacy and of the laws is mandatory", corroborated with art. 119 of the Constitution.