CCR: Asset declarations are no longer published and no longer include assets of spouses and children

The Constitutional Court decided on Thursday that declarations of assets and interests should no longer be published on the website of the National Integrity Agency or on the online pages of other public institutions, and these declarations should no longer include the income and assets of spouses and children.According to a press release sent on Thursday, with a majority vote, the CCR declared unconstitutional art. 3 paragraph (2) of Law no. 176/2010, with the following content: "Asset declarations are drawn up on one's own responsibility and include the rights and obligations of the declarant, the spouse, as well as the dependent children, according to annex no. 1".Following this decision, which is final, asset declarations submitted to the National Integrity Agency no longer have to include the assets of spouses and children."The Constitutional Court, within the framework of the a posteriori constitutional review, unanimously admitted the exception of unconstitutionality and found that the provisions of art. 3 paragraph (2) of Law no. 176/2010 on integrity in the exercise of public functions and dignities, for the amendment and completion of Law no. 144/2007 on the establishment, organization and functioning of the National Integrity Agency, as well as for the amendment and completion of other normative acts are constitutional to the extent that they do not also refer to the rights and obligations of the declarant's spouse, as well as of the adult children in his/her care", specifies the CCR.Constitutional judges argue that a declaration on one's own responsibility can only be made in one's own name."In essence, the Court held, with regard to the provisions of art. 3 paragraph (2) of Law no. 176/2010, that they contravene the provisions of art. 1 paragraph (5) of the Constitution, in terms of non-compliance with the qualitative requirements that the drafting of legal texts must meet in order to be in accordance with the principle of legality. This is because the asset declaration, being a declaration on one's own responsibility, engages the criminal liability of the declarant, which is why it can only be made in one's own name, a person cannot be held liable from a legal point of view, for the act/statements of another person. However, the criticized legal provisions that establish the obligation to declare not only one's own income, but also the rights and obligations of the spouse and dependent children do not take into account the legislative amendments made to the Civil Code regarding the legal regime of spouses' property and determine the assumption of criminal liability of the declarant for information that he/she does not possess/does not know directly, but must obtain from a third party, respectively from the spouse and the adult dependent children", is the reasoning provided by the CCR.Also, by majority vote, two other articles of Law no. 176/2010, which refer to the publication of declarations of assets and interests on the ANI website, were declared unconstitutional.Art. 12 paragraph (6) provides: "The Agency ensures the display of the asset declarations and declarations of interests, provided for in annexes no. 1 and 2, on the Agency's website, within 30 days of receipt at the latest, by anonymizing the address of the declared properties, with the exception of the locality where they are located, the address of the institution that manages the financial assets, the personal identification number, as well as the signature. The asset declarations and declarations of interests are maintained on the Agency's website for the entire duration of the exercise of the function or mandate and 3 years after its termination and are archived according to the law".Art.6 paragraph (1) letter (d) of Law 176/2010: "The persons responsible for implementing the provisions regarding asset declarations and declarations of interests are obliged to register in this capacity on e-DAI and have the following duties: (...) d) ensure the display and maintenance of the asset declarations and declarations of interests, provided for in annexes no. 1 and 2, on the institution's website, within a maximum of 30 days from receipt, by anonymizing the address of the declared properties, with the exception of the locality where they are located, the address of the institution that manages the financial assets, the personal identification number, as well as the handwritten signature. The asset declarations and declarations of interests are kept on the website of the institution and the Agency for the entire duration of the exercise of the function or mandate and 3 years after their termination and are archived according to the law".According to the CCR, declarations of assets and interests will no longer be published on the websites of the institutions where those who must declare their assets work, because it violates the "right to protection of private life"."With regard to the provisions of art.6 paragraph (1) letter d) and art.12 paragraph (6) of Law no. 176/2010, taking into account the European concept oriented towards the need to protect private life and personal data, the Court found that the publication of declarations of assets and interests on the website of the institution within which the declarant carries out his activity and on that of the National Integrity Agency contravenes art.1 paragraph (5) and art.26 of the Fundamental Law. In this regard, the Court carried out a proportionality test, finding that it is undeniable that the legal provisions criticized were enacted with the aim of preventing corruption and ensuring the transparency of political life, thus pursuing a legitimate aim. Capitalizing on the case law of the Court of Justice of the European Union and the standards of European Union law in the matter, the Constitutional Court considered that it is sufficient to submit the declarations to the body competent to verify them (ANI) to achieve the purpose of the law, and their publication on the website of ANI and of the institution to which the declarant belongs is not necessary and proportionate to achieving the intended purpose, violating the right to the protection of private life. The Court emphasized that the solution pronounced should not have the effect of eliminating the obligation of the persons provided for by law to provide asset declarations, but only that these declarations should no longer be published on the mentioned websites, and that they should be submitted to the National Integrity Agency, which should manage them according to the powers provided for by law," is the explanation provided by the CCR.The CCR notes that this decision has future effects and does not concern declarations of assets and interests submitted prior to the publication of this decision in the Official Gazette of Romania, Part I."It is up to the legislator to bring unconstitutional provisions into line with the provisions of the Constitution and to codify the norms regarding integrity in the exercise of public functions and dignities," the judges added.According to sources from the institution, the rapporteur in this case was Attila Varga, who - before becoming a judge at the CCR - had six parliamentary mandates from the UDMR.