Amicus Curiae on the review of constitutionality the provisions of art. III and art. IV of Law no. 26/2026 and the Parliament Decision no. 63/2026 to Notifications no. 42A/2026 and no. 43a/2026)

This amicus curiae brief is submitted by the Institute for European Policies and Reforms (IPRE) and was prepared with the contribution of the Group of Experts in the Field of Justice (GEJ), at the invitation of the Constitutional Court, in the context of the examination of applications no. 42a/2026 and no. 43a/2026. These applications concern the constitutional review of the provisions of Article III and Article IV of Law no. 26/2026, as well as Parliament Decision no. 63/2026.

The contested provisions, introduced by an amendment at the final stage of the legislative process, modify the procedure for appointing the international members of the commissions responsible for the integrity evaluation of judges and prosecutors. The amendment reduces the qualified voting threshold required for appointment from three- fifths of elected Members of Parliament to a simple majority, in the event that the first nomination proposal fails to obtain the qualified majority.

The authors of this amicus curiae opinion conclude that Articles III and IV of Law no. 26/2026 raise serious issues of constitutionality for two main reasons:

(a) Procedural grounds: the amendment contravenes the requirements of Article 74(1) of the Constitution, as it lacked an indispensable connection with the subject matter of the draft law adopted in the first reading and was not subject to genuine parliamentary debate in both readings. The analysis relies on the established case-law of the Constitutional Court (HCC no. 14/2024; HCC no. 10/2025), which has held that compliance with the procedure for adopting organic laws entails both procedural and substantive requirements.

(b) Substantive grounds: lowering the voting threshold from three-fifths to a simple majority contradicts the standards of the Venice Commission. The Commission has emphasized that qualified majority requirements should be maintained in all rounds of voting (CDL-PI(2023)018, p. 24), that reducing the required majority undermines incentives for political compromise (CDL-AD(2022)019, pp. 27–28), and that the quality of the legislative process requires transparency, inclusiveness and respect for the role of the opposition (CDL-AD(2025)002, p. 34).

With regard to Parliament Decision no. 63/2026, the Constitutional Court’s consistent case-law interpreting Article 140(1) of the Constitution establishes that the wording “from the moment of adoption of the decision” refers to the ex-nunc effect of Constitutional Court judgments, meaning that they produce effects only for the future (HCC no. 5 of 25 February 2020, para. 141; HCC no. 21 of 1 October 2018). Accordingly, a possible finding of unconstitutionality of Articles III and IV of Law no. 26/2026 would not affect procedures already completed prior to the Court’s judgment, as such a decision would not apply to legal relations that arose (ex-ante) before its entry into force (HCC no. 13 of 21 May 2020, p. 83).