Presidential election cancellation - Călin Georgescu's camp threatens infringement proceedings

Călin Georgescu, who last year posed as a peacemaker, called his supporters last Friday in front of the headquarters of the Constitutional Court of Romania to protest against the decision of December 6, 2024 regarding the cancellation of the presidential elections. Moreover, Maria Văsîi, Călin Georgescu's lawyer, indirectly threatened, on Realitatea Plus, with the opening of an infringement proceeding at the European level against our country regarding the cancellation of the presidential elections.

In light of the over 2.1 million votes collected in the first round of the presidential elections, which took place on November 24 - votes that the CCR claims did not express the free, conscious will of the voters, because they were bombarded with false information both about the candidate in question and about the fact that his entire campaign was done with zero lei -, those around Călin Georgescu and a part of the press favorable to him created an aura of president-elect for him.

False, because the president is elected only after the completion of the second round of voting and not just after the first round. If that were the case, then in 2014 Victor Ponta should have become president of Romania, because in the first round he had 10% more votes than the finalist in the second round, Klaus Iohannis, and not just 2.8% more, which is the difference in the first round of the 2024 presidential elections between Călin Georgescu and Elena Lasconi. Moreover, Victor Ponta obtained 3,836,093 votes in the first round of the 2014 presidential elections, that is, over 1.7 million votes more than those obtained by Călin Georgescu (2,120,402 votes) in the first round of the 2024 presidential elections. So it can be said that the legitimacy now claimed by Călin Georgescu and those around him is below that which Victor Ponta had in the fall of 2014. However, Georgescu and his supporters continue the steps through which they hope to change the CCR decision regarding the annulment of the 2024 presidential election and last week threatened with the ECHR, the CJEU and even the European Union Ombudsman, institutions that they will notify in order to obtain what they want: forcing the Constitutional Court to order the resumption of the second round of the presidential elections.

However, the statements of lawyer Maria Văsîi, who represents Călin Georgescu, made to Realitatea Plus regarding the alleged opening of an infringement procedure against Romania due to the annulment of the presidential elections, are contradictory both in relation to national and European legislation.

Thus, lawyer Maria Văsîi stated: "From today on, the removal of people's right to vote is no longer an internal matter, of Romania, but a European one. (...) The CCR must open an investigation to see who committed this shameful fraud."

Now, from the interpretation of Article 1 paragraph (1) of the Romanian Constitution, the sovereignty of the electoral process belongs to the Romanian state, and from the interpretation of Article 2 paragraph (1) we note that the said sovereignty is exercised by the people through national representatives and institutions. Any decision regarding the validation or annulment of the elections falls exclusively within the competence of the Central Electoral Bureau (BEC) and the Constitutional Court of Romania (CCR), not within the competence of the European institutions. Moreover, any external intervention in the Romanian electoral process must respect the national legal framework and be justified by clear violations of international standards regarding fundamental rights. As a result, the lawyer's statements that "removing the right to vote" automatically becomes a European issue ignore these fundamental provisions. The Romanian Constitution does not allow external involvement without a clear basis, based on international standards.

• The electoral process benefits from the principle of subsidiarity

Maria Văsîi indirectly threatened that, if the second round is not resumed, our country risks being subject to an infringement procedure. Călin Georgescu's lawyer said, without indicating any European provision violated by Romania in the context of the annulment of the presidential elections: "I assume that an infringement procedure will be opened against Romania. (...) Through that ordinance that returned the amounts to Călin Georgescu's legal competitors, fraud occurred in the country's budget, but especially in the European Union's."

The infringement procedure, under Article 258 of the Treaty on the Functioning of the European Union (TFEU), is applicable only in cases where Member States breach obligations arising from EU law. The annulment or validation of presidential elections is not regulated by EU law, being an exclusively national prerogative. The statement that "the EU and the European Commission are obliged to carry out the audit" is erroneous, as the Commission investigates only addresses direct violations of EU law, not issues related to the organisation of national electoral processes. Furthermore, the right to vote is guaranteed by Article 39 of the Charter of Fundamental Rights of the European Union, but its applicability is limited to elections to the European Parliament. Presidential elections remain under the exclusive jurisdiction of each Member State. This follows from the principle of subsidiarity, provided for in Article 5 of the Treaty on European Union (TEU). From its interpretation, the right to vote and the national electoral process are the exclusive responsibilities of the Member States. Otherwise, we would have had a single European electoral legislation applicable to all 27 Member States.

• European Ombudsman, without powers regarding the national electoral process

In the respective procedure, Călin Georgescu's lawyer also introduced the European Ombudsman with a well-defined role, about whom she stated: "As of today, the EU Ombudsman (ed. - People's Advocate) is investigating the elections in Romania. (...) The EU Ombudsman will refer the matter to the European Court of Justice, he will sue the Romanian state".

According to his mandate, the European Ombudsman only investigates cases of maladministration within the EU institutions, not in the Member States. Therefore, the claim that the Ombudsman is responsible for investigating the elections in Romania is unfounded. Moreover, this institution does not have the power to refer the matter to the European Court of Justice (ECJ) to judge national electoral processes. These claims are contradicted by both EU legislation and the functioning of the European institutions.

However, Maria Văsîi continues: "The European Court of Justice is the one that will make the decision. (...) In this procedure at the ECHR, there is the possibility of imposing a rerun of round 2".

We note that the CJEU intervenes only in cases involving the incorrect interpretation or application of European legislation. Furthermore, the confusion between the CJEU and the ECHR (European Court of Human Rights), institutions with distinct mandates and powers, is obvious. Neither the CJEU nor the ECHR have the prerogatives to impose the resumption of a national electoral round. Such decisions belong exclusively to the authorities of the member state, in this case the CCR and the BEC.

The allegations regarding the involvement of the European Ombudsman and the CJEU in the electoral process in our country are argued by Călin Georgescu's lawyer in the light of the decision of the Permanent Electoral Authority to return, following the CCR's annulment of the presidential elections, to the candidates for this election the amounts spent in the electoral campaign. Maria Văsîi stated to Realitatea Plus: "The EU money prepared for the consolidation of the democratic process was used to bribe the leaders of political parties not to comment on the annulment of the elections".

First of all, the money allocated by the AEP comes from the state budget and not from European funds. Then, if these accusations were real, they should be investigated by OLAF (European Anti-Fraud Office), and not by the European Ombudsman or the CJEU.

• Review of the CCR decision, a procedure that does not exist in the current legislation

We also point out that following Friday's protest, representatives of Călin Georgescu and those of AUR asked the CCR to review the decision of December 6, 2024, a procedure that does not exist in the current legislation. However, George Simion pointed out that, just as the CCR decided on December 6 to annul the presidential elections, after validating the results of the first round of this election on December 2, the Court could also review the decision of December 6.

According to Tudorel Toader, former Minister of Justice and former judge at the CCR, the Friday action of Călin Georgescu's supporters "is an electoral one, because the CCR does not have a procedure for reviewing its own decisions." Tudorel Toader, quoted by News.ro, stated: "Until 2003, when the Constitution was revised, the judgments and decisions pronounced in the first instance, in a panel of three, could be appealed to the CCR, in a panel of five. During the 2003 revision, it was decided that the judgments and decisions are pronounced in plenary, by the 9 judges and are final and generally binding from the time of publication in the Official Gazette. Therefore, the issue of revision is a non-existent procedure."