Regime of foreigners in Romania. Further extensions of temporary stay right. Exception of unconstitutionality rejected

In the Official Gazette no. 816 dated November 10, 2014 the Decision no. 446 of 16 September 2014, of the Constitutional Court was published. This decision concerns the exception of unconstitutionality of art. 55 para. (2) e) Government Emergency Ordinance no. 194/2002 on foreigners in Romania.
Exception of unconstitutionality was raised by Salame Amer Mohamad MIRV, Salame Badir, Salame Salame Mohamad Mahmoud and in a case pending before the Court of Appeal Craiova – Department of Administrative and Fiscal matters.

The object of the unconstitutionality exception is art. 55 para. (2) e) Government Emergency Ordinance no. 194/2002 on foreigners in Romania.The text criticized in this case was introduced by art. I pt. 78 of Law no. 157/2011 amending and supplementing certain acts on foreigners in Romania and has the following wording:
– Art. 55 para. (2) e):
“Subsequent extensions of temporary stay right may be granted if the foriegners meet the following conditions:
e) the investment is embodied in equity or technology worth 70,000 euros, in the case of the shareholder, or 50,000 euros for the associate, and create at least 15 jobs in the case of the shareholder and 10 jobs for the shareholder. With regards to jobs, they must be assigned to persons employed full time work and with strict consideration of the law”.

According to the authors of the objection, the provisions submitted to constitutional law are contrary to art. 16 para. (1) of the Constitution, which enshrines the principle of equality of citizens before the law and public authorities.

Through the examination of the the exception of unconstitutionality, the Court notes that its authors start to argue the unconstitutionality of the legal text criticized by comparing the conditions on which a foreigner must meet when applying for the first time to extend the right of residence and the conditions necessary for further extensions of this right. It is claimed that it violates the principle of equality as a result of the difference between the conditions to be met for a first extension depend on the following extensions of the right of residence, thus creating discrimination between foreigner applicants.
To these critics, the Court notes that, through its jurisprudence the court held that violation of the principle of equality and non-discrimination occurs when applying differential treatment of equal cases, without any objective and reasonable motivation, or if there is a disproportion between the aims by unequal treatment and the means used.

In the same line of argument, the principle of equality before the law requires the establishment of equal treatment of situations that, depending on the purpose, are not different. Therefore it does not exclude, but rather requires different solutions for different situations. But different treatment can not only be exclusive expression of appreciation of the legislature, but must be justified rationally, in respect of the principle of equality of citizens before the law and public authorities.

In the present case, the Court finds that it cannot retain any discrimination between foreigners who require an initial extension of the right of residence in Romania and those seeking further extensions, the two categories being in special legal situations, which require different regulations. It is fully justified to adopt differentiation in conditions, given that the foreigner that entered Romania to conduct commercial activities must demonstrate through concrete results that the time elapsed from the grant of the extension to request a new one, respected and pursued in good faith and perseverance to fulfill the purpose for which they were granted the right to stay, thus providing a justification for a further extension thereof.
The Court also notes that, according to the European Court of Human Rights, that States enjoy a certain margin of discretion in deciding whether and to what extent differences between various similar situations justify a different legal treatment, and the purpose of this margin varies the specific circumstances and context domain.

The Court decides:
– the exception of unconstitutionality which covers the provisions of art. 55 para. (2) e) Government Emergency Ordinance no. 194/2002 on foriegners regime in Romania is dismissed as unfounded.

:: The source: JURIDICE.ro

Dan Alexandru NEGRU



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