Statistical data: 1 January 1997 - 30 April 1997

The Constitutional Court has handed down 97 decisions, as follows:
• 2 decisions on the constitutionality of legislation prior to its enactment;
• 1 decision on the constitutionality of Parliamentary rules;
• 94 decisions on objections alleging unconstitutionality.
In addition, two judgments have been given on, respectively, ascertainment that the conditions for the exercise of the right of citizens to initiate legislation have been satisfied, and the amendment of the Court Rules in respect of holidays.

Important decisions

Identification: ROM-1997-1-001
a) Romania / b) Constitutional Court/c)/d) 16.04.1997 / e) 73/1997 / f) Decision on the constitutionality of the law supplementing Law no. 35/1991 on the rules governing foreign investment / g) Monitorul Oficial al Romaniei  (Official  Gazette  of  Romania), no. 75/29.04.1997 / h).

Keywords of the systematic thesaurus:
Fundamental Rights - General questions - Basic principles - Equality and non-discrimination.
Fundamental Rights-General questions-Entitlement to rights - Legal persons - Private law.
Fundamental Rights - Civil and political rights - Right to property.

Keywords of the alphabetical index:
Foreigners / Nationality, commercial company / Commer-cial company, foreign capital / Land ownership, foreigners.

Headnotes:
In law, citizenship for a natural person corresponds to nationality for a legal entity. Under Romanian law, the nationality of a legal entity - a concept expressing the fact that the latter belongs to a particular system of national law - is not determined by the status (citizen, foreigner or stateless person) of the natural persons who have formed a partnership (in the case of commercial companies) in order to set up the legal entity.
Rather, the legal entity has the nationality of the State on whose territory it has established its registered office, in accordance with the instrument whereby it was set up. The nationality of the legal entity determines the law applicable to the rules governing the commercial company - and any other legal entity - during its establishment, existence and liquidation.
Any legal entity with Romanian nationality may acquire ownership of the land which it needs to achieve the purpose of its activity. This corresponds to the speciality rules on the permitted activities of legal entities in contrast with natural persons, who may use their property for general purposes. In this specific area, legal entities may acquire ownership of land which is publicly owned either by the State or by local or regional authorities, which along with other property in this category is deemed inalienable under Article 135 of the Constitution.

Summary:
In the context of the review of the constitutionality of legislation prior to its enactment, a case was brought before the Constitutional Court by 27 Senators on the unconstitutionality of the law supplementing Law no. 35/1991 concerning the rules governing foreign investment, which introduced a new section stating that:
"Commercial companies with partially or entirely foreign capital, constituted as Romanian legal entities, may, at any time while they are in operation, acquire a property right and all other rights in rem over the land which they require in order to achieve the purpose of their activity."
All the arguments put forward by those who had brought the case to support their objection alleging uncon-stitutionality expressed the concern that the newly introduced law should not breach the explicit prohibition enshrined in Article 41.2 of the Constitution and that it should not be allowed to result in avoidance of this prohibition and, implicity, contravention of constitutional texts which enshrined the constitutional basis of the Romanian State (the national, sovereign, independent, unitary and indivisible nature of the Romanian State). In accordance with Article 41.2 of the Constitution, foreign citizens and stateless persons may not acquire the right to own land. The Basic Law draws upon the concepts of constitutional law, namely that of "citizen" and, in provisions with a broader scope, of "person".
A legal entity has separate legal personality from the natural persons who - in the case of legal entities constituted by a legal act of partnership - have set it up.
The constituent elements of a legal entity are: its independent organisation, its own assets and a specifically defined aim. Of these elements, the most important for the purposes of assessing an objection alleging unconstitutionality is the existence of assets independent of any other natural person or legal entity. The assets of a legal entity include, above all else, a property right over goods which it possesses including, if appropriate, ownership of land.
Regardless of the origin of their authorised capital, commercial companies whose registered office is in Romania have Romanian nationality. There is no legal rule allowing a distinction to be made between the legal status of commercial companies - and more generally, of legal entities - of the same nationality, i.e. in our case, Romanian nationality. Therefore, it is not permissible to discriminate between Romanian commercial companies on the grounds that the natural persons who have entered into partnership to establish or subsequently acquire shares in these firms all have Romanian citizenship or are partially or entirely foreigners or stateless persons.
National sovereignty and the inalienability of Romanian territory mean that the national territory is regarded as a concept of constitutional law, and ownership of land applies to the surface of the land, a concept derived from civil and related areas of law.
In the light of these considerations, the Constitutional Court declared the impugned law constitutional.

Languages: Romanian.