Chapter 1.

Principal of “Legal Security”: definition, framework,

importance.

The principal of legal security is the basis for the rule of law

In the Romanian legal system, there is no explicit text of law that defines the principal of
legal security, because in this case it is a result of the jurisprudence, deriving from the rule of
law, it is consecrated as part of the European Court of Justice (ECJ) and the European Court of
Human Rights (ECHR) jurisprudence, mostly in regards to the application of community law. As
this principal is formed from other pillar-principals, it does not have an explicit definition, but in
the specialty literature lately it was defined as: “the principal which strives to dismiss from the
legal order the risk of uncertainty, generated by the imprecision and the instability of the law
itself”.[ CITATION Fra93 \l 1033 ] More recent the idea of legal security came closer to its root, the
rule of law, becoming a principal that should inspire the entire legal system, generate certainty
and the absence of fear because in some of its aspects legal security emerges as a human right.
Legal security is a principal that generates systematization and stability of legal order and
guarantee human rights in the sense of human and social security through lawmaking and justice.
The necessity for studying the principal of legal security can be explained through three
simple reasons: First, to properly function, it needs to be defined clearly so it becomes
accessible. Second, this principal is the basis for the rule of law, and so the public authorities
need to have it in mind at every step. The legislators when elaborating the text of the law, and the
judiciary when enforcing it. And third reason is that it is a current issue in the context of
unforeseen quantitative growth of legislation, determined by the outgrowing complexity of the
legal system, as a result of new developments in the community law at the international level, but
also the development of the society and the new fields that need regulations. [ CITATION Tră11 \l
1033 ][ CITATION Pre09 \l 1033 ][ CITATION Iac15 \l 1033 ]

The principal of legal security presumes/implies that the citizens are capable of
understanding, without efforts, what is allowed and what is protected through the law. To get to
this result the norms must to be clear, perceivable and not suffer in time frequent and
unpredictable changes. In the current context , as a fundamental principal of state law it should
give every citizen the opportunity to evolve into a secured , predictable environment, but the
increase/rise of law complexity, which is determined mainly by the developing new sources of
law (particularly European and international law) and the development of the society have
created a state of instability in the society. One example in the Romanian context is the conflict
with the taxi drivers and the Uber drivers cause by the lack of development in the transportation
laws and the quick and unappropriated new laws. The constant changes to the juridical norms
that are obscure and unclear and creation on new norms is a source of social disbalance and the
result is the lack of trust and dismissal from the individuals and private entities for the legal
system. In this context the principal of legal security brings to light the issue of legal security as
fundamental principal for the rule of law, which assumes the following demands:
nonretroactivity of the law, accessibility of the law, predictability of the law and the unitary
interpretation of the law. Those demands/guarantees constitutes a condition “sine qua non” for
qualitative legislation and qualitative application of it, to assure stability in social relations inside
the state. Take in discussion the quality of the law/norms, one study states that: “The law is made
to impose, to restrict, to sanction. The law is not made for blather, to create illusions, to provoke
ambiguity and deception. The law must be normative: the non-normative law diminishes the
necessary rule, inducing doubt on the real effect of its dispositions. To know what the law
provides is not enough for it to be accessible in a material way. It is for sure an essential
condition […] but first the norm must be intelligible. The intelligibility implies clarity and
precision of the sentence and also coherence. It also presumes that the rules have to gain their
full meaning in the context of the judicial body in which they have to integrate without making
too many references to dispositions outside the text” [ CITATION Ram14 \l 1033 ] . Taking it all into
account, what causes the legal instability and a threat to the rule of law is the legislative inflation,
non-compliance with the legal requirements, and the uncertainty of how the law should be
applied. This state wages on the citizens and the specialist almost in the same manner, both being
in the position to interpret what can be interpreted from the law. According to the rule of law, the
compliance with the principal of legal security must represent a priority, under the aspects of law
quality but also under the unitary interpretation by the state authority, the responsibility for this
falling to the legislative power and the judiciary power. When non-compliance with the principal
of legal security occurs, the society goes from a state of normality to a state of insecurity which
generates a lack of trust from the citizens in the state authority and the norms that the state
imposes.
Legal security is social security
The pressing matter of the idea of individual security in the current context in regards to
the rule of law, needs a detailed approach on all aspects. One of these aspects is the concept of
legal security, which is the fundament for the individual security because is assures social
stability. Legal security is the principal that generates a state of systematical social order and acts
as a guarantee for human and social rights. The contemporary signification of the term „social
security” was formulated by the German author Gustav Radbrunch, stating that “social security
represents legal security”. The term “legal security” in the context of human rights represents
“security of the individual” in society and in the legal system. As a principal legal security has a
normative function, to justify and develop effective legislation, with the purpose of guarantying
security in a social manner. The law theory considers legal security as a natural right and
establishes a link between human rights and the idea of material justice. Hobbes is the author that
understands security as the peace resulting from the social contract, as the citizens give to the
power the concept of security[ CITATION Mar95 \l 1033 ].
The European court of justice jurisprudence regarding the rule of law or the
principal of legal security

The European Court of Justice proved in it’s activity the force to impose some unitary
legal doctrines on the member states, one of those doctrines is the principal of legal security ,
called for in the context in which was discussed the importance of the Court in assuring a unitary
and constant interpretation of certain norms across the members of the E.U. It is important to
mention also that from all the cases ever brought to the ECJ, in more than 10% of them the Court
invoked the principal of legal security and in so becoming part of the jurisprudence of the ECJ.
[ CITATION VNa93 \l 1033 ] By analyzing the way the ECJ applied this principal, specialists found
three types of situations in which the principal is invoked. [ CITATION JPP01 \l 1033 ]

The first situation found was when cases brought to the Court for analysis were based on
legislation that was poorly written, that included vague and often contradictory norms, which
makes it impossible for the national courts to apply it , because the law is unsure and
unpredictable and in complete opposition with the principal of legal security. In those cases the
ECJ adjudged that:“ the principal of legal security imposes that in the domains covered by the
community law, the state norms must be formulated and written in a clear, unequivocal manner ,
on one side to allow the individuals who make the object of those norms to know their rights and
obligations in a clear precise way , and on the other side to offer the national courts the
possibility to ensure that the norms are respected. “[CITATION ECJ98 \l 1033 ]

A second situation in which the ECJ found violations to the principal of legal security
were in regards with the existence of contradictory norms in different European dispositions,
when the new disposition did not express a repeal of the old disposition, and also when the
conversion of some European norms, had different applications in the member state systems. For
this problem the ECJ concluded that: “it is important that member states transpose the
dispositions in compliance with the principal of legal security, adopting legal norms whose
imperative nature can be ensured by the courts.” [CITATION ECJ86 \l 1033 ]

A third situation and the most relevant regards the application in time of community
provisions and of the transposition community provisions. In this case what is most relevant is to
establish in which situations the provisions will create legal effects for a date that is previous of
the date that the provision enters into force, which is the day it is published. The ECJ showed
that: “the principal of legal security opposes the retroactive application of the law, with the
exception of the situation when it is clearly stated” [CITATION ECJ85 \l 1033 ]. Also, that “although
the principal of legal security opposes the establishment of a previous date for entry into force of
a disposition, (meaning before it was published), the exception will be accepted if the purpose of
the disposition demands it and if it upholds the principal of legitimate trust. “[CITATION ECJ79 \l
1033 ]. Thereby, although the ECJ accepted the possibility of retroactively applying some
dispositions, this situation remained an exception, the court continuously showed that: “ the fact
of determining the date of entry into force of an act of general application at a date already
exceeded is sufficient to undermine the principal of legal security”[CITATION ECJ84 \l 1033 ] . For
this exception the ECJ also notes that: “the certainty and predictability of a community provision
is a must, which need to be imposed rigorously especially when the provision is susceptible to
create financial effects.” [CITATION ECJ90 \l 1033 ]

Though is not directly expressed in a community law text, the ECJ established that the
principal of legal security is an integrated part of the community legal order, and so the member
states must exercise their prerogatives in accordance to the community dispositions. The same
situation is found in the European Law of Human Rights, (ELHR) the principal is not directly
stated, but legal security is present at a jurisprudential level in regard with the preamble of the
European Convention of Human Rights. In its jurisprudence the European Court of Human
Rights (ECHR) highlighted the importance of the principal of legal security, stating that is
inherent to the law of the Convention and to the community law, it is an essential element of the
rule of law, and the non-compliance is equivalent to the violation of art. 6 of the Convection.

Legal security – components

As mentioned before, in the Romanian legal system, the principal of legal security does
not have formal presence, being a creation of the jurisprudence of the Constitutional Court,
which structured this principal based on three big components : the accessibility and
predictability of the law, the assurance for unitary interpretation of the law and the non-
retroactivity of the law. [ CITATION Pre09 \l 1033 ]

The accessibility and predictability of the law is a consecrated provision trough the Law
no. 24/2000[ CITATION Off10 \l 1033 ], (which regulates the formal and technical way for law
elaboration). This law has been brought to the level of a constitutional law through the
jurisprudence of the Romanian Constitutional Court (RCC). Through the Decision no. 710/2009
the RCC declared unconstitutional a norm because it’s “poor drafting”, similar to this in the
Decision no. 453/2008, the court showed that the establishment of sanctions that are
“insufficiently elaborated, are impossible to apply” go against the constitutional demands.
[ CITATION Pre09 \l 1033 ]The legal norms must be clear and intelligible, in a way that the
recipients fully understand the legal consequences of their acts. If this requirement is not met, the
“nemo censetur ignorare legem” (ignorance of the law is no excuse) principal can no longer be
invoked, which would cause real damage to the legal and social security. In essence this
component of the principal of legal security presumes that the law must be predictable and the
solutions to legal issues must remain stable in time. [ CITATION Tră111 \l 1033 ]

The second component regarding the assurance for unitary interpretation of the law, in
regards to this issue there have been put in place a series of measures in civil law and criminal
law. Thereby, in case of appeal in the interest of the law or referrals for prior rulings to the High
Court of Caseation and Justice (HCCJ), the RCC decided that most cases would be inadmissible,
because some interpretations drifted away from the original norms as a result of the HCCJ
assuming the role of the legislator. These incidents undermined the principal of legal security
and implicitly the rule of law by blurring the lines of the separation of power.
The last component is the most important one yet, the non-retroactivity of the law being
the most discussed one in the jurisprudence of the RCC. Through Decision no. 98/2002 the RCC
showed that “a legal provision sanctioning with absolute nullity legal acts concluded prior to the
entry into force of a law but in compliance with the legal regulations applicable at that date have
retroactive effects and are contrary to the principal of non-retroactivity of the law, implicitly to
the principal of legal security”. It is important to mention that this decision does not apply to
situations where a new law modifies or repeal effects in a situation created in the past but has
legal effects in the future. In the situation of constitutional cases the RCC stated in Decision no.
838/2009[ CITATION RCC09 \l 1033 ] that “according to art. 147, align. 4 of the Romanian
Constitution (“The Decisions of the Constitutional Court are to be published in the Official
Monitor of Romania. From the date they are published, the decisions are general and mandatory
and have power only on future cases”), the “ex nunc” (“from now on”) effect of decisions made
by the Court represents the applicability of the principal, a fundamental guarantee of
constitutional rights, for assuring legal security and the trust of the citizens in the justice system,
a premise for upholding the separation of power and consolidation for the rule of law. “
[ CITATION RCC01 \l 1033 ]

The recent developments in jurisprudence of the Constitutional Court confirm the

tendency to consecrate the principle of legal security by the way of interpretation. It is worth
mentioning in this sense the Decision no. 404/2008, where the Court appreciated that the
principle of legal relations stability is derived from the article 1, line 3 of the Constitution (
Romania is a state of law, democratic and social, in which the dignity of man, the rights and
freedoms of citizens, the free development of human personality, justice and political pluralism
represent supreme values, in the spirit of the democratic traditions of the Romanian people and
the ideals of the Revolution of December 1989, which are guaranteed.).

The consequences of non-compliance with the principal of legal security and the
impact on the rule of law

First of all, there should be mentioned that legal security represents the key element for
the stability of the law system. But frequent changes to the elements of the system such as
modifications, additions or repeals of certain norms create uncertainty, lack of trust in the system
and the risk of non-uniform applications of the law. The outgrowing complexity of laws has
become the weak spot for the economy and for society as a whole. In 2003 the French
Government state that “the new and complex set of laws that we are facing can destroy the
clarity of the decision made by the Government and the Parliament and induces doubt in the
society regarding the effectiveness of the political decisions.”. The negative effects are felt at the
judicial level, the economic level, and social level in general brought by the difficulty of
integrating community norms in the national law system. The judiciary is constrained by massive
flux of community law, accords and treaties that must be transposed, obligation that is found in
every member state constitution. Another issue in this subject is the negative influence of
extraordinary parliamentary sessions or the excessive use by the Government of the emergency
procedure. In society the effect is felt as chaos, perceiving the law as an abstract, inaccessible
and unstable, and for this the citizen can no longer know the law and act accordingly. “Faced
with the instability of the law, the principal of legal security comes as a last resort for the
supreme jurisdictions for maintain the order and allow the law to fulfil its mission” [CITATION
Oli05 \l 1033 ], for initiating such action one must first impose a reform, in the sense that the most
useful way to simplify the legislation is to avoid the sedimentation of old norms. This process
represents the continuous analysis of legal texts on the same topic with the purpose of efficient
systematization and simplification of legal norms, and for this the Romanian legal system has the
Legislative Council whose purpose is to consult the Parliament, approves project of legal norms
for systematization, unification and coordination of the entire legislation and keeps a record of
all legislation.
The consequences of non-compliance with the principal of legal security manifest as:
poorly written law, that are unprecise, frequent changes which spike uncertainty; lack of
sanctions; the negligence, lack of interest and abuses of public officials; illegal practice of the
Executive Power; the failure of the Judiciary Power; abuses and unconstitutional practices of the
Legislative Power and most dangerous the abuses regarding the constituent Power [ CITATION
Răd32 \l 1033 ]. What those consequences represent is organizing the magistrates in an
inappropriate manner, wrong interpretations of the law (too wide or too narrow), frequent
alterations to the law with disregard for the citizens, inconsideration of constitutional laws. In the
case of the constituent Power, the effects can be disastrous because it has the power to dismantle
any rights, the freedom of the press, can allow law to have retroactive power, and so on. All
those are possible consequences when the principal of legal security and inherently the rule of
law, are not respected and upheld to their standards.

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