The CCR decision on the presidential elections - a dangerous precedent for European democracy

The decision of the Constitutional Court of Romania (CCR) by which the entire process regarding the presidential elections was annulled on December 6, 2024, represents a dangerous precedent for European democracy, if we take into account the statement made at the end of last week by former European Commissioner Thierry Breton, who stated that the situation of the annulment of the elections could be repeated in Germany, if the parliamentary elections of February 23, 2025 were won by the Alternative for Germany (AfD), a political party that was classified by the German court as having extremist potential.

"Let's wait and see what will happen in Germany. Let's remain calm and apply the laws in Europe when there is a risk that they will be violated and, if not applied, may lead to foreign interference. This has been done in Romania, and it must be done, obviously if necessary, in the case of Germany," said Thierry Breton, during a show on RMC TV, picked up by the French channel BFM TV.

Breton's statement is serious, from the perspective of democratic values, because an electoral process cannot be canceled solely due to foreign interference, unless it is strong enough to lead to the taint of the vote and the final result. However, since the CCR decision of December 6 and until now, no obvious, clear evidence has been published in the public space regarding the interference of foreign state and non-state actors in the presidential elections in our country. If this evidence had existed, the General Prosecutor's Office or the Directorate for the Investigation of Organized Crime and Terrorism (DIICOT) would have presented it in an extensive indictment and we would have seen several people pre-emptively arrested by the courts in our country. After a month of investigation, we have nothing tangible from either the Prosecutor General's Office or DIICOT, which shows that the CCR's decision may have been hasty. We do not follow the direction outlined by Breton and those who interpreted his statement, in the sense that we do not believe that the CCR judges decided to annul the presidential elections at the request of someone, either the leaders in Brussels or the Presidential Administration in Washington, because such an interpretation would nullify the very foundations of democracy and the rule of law.

• CCR: During the electoral process, a "distortion of the will of the voters" took place

In fact, the reasoning of the December 6 decision issued by the CCR states:

"In the present case, the freely expressed nature of the vote was violated by the fact that the voters were misinformed through an electoral campaign in which one of the candidates benefited from aggressive promotion, carried out in circumvention of national legislation in the electoral field and through the abusive exploitation of the algorithms of social media platforms. The manipulation of the vote was all the more obvious since the electoral materials promoting a candidate did not bear the specific signs of electoral advertising according to Law no. 370/2004. In addition, the candidate also benefited from preferential treatment on social media platforms, which had the effect of distorting the will of the voters. (...) In the present case, having regard to the provisions of art. 37 of the Constitution, the Court notes that the equality of opportunity of electoral competitors was affected, which reflects an alteration of the very right to be elected. The irregularities in the electoral campaign affected the electoral competitors, since they created a clear inequality between the candidate who manipulated digital technologies and the other candidates participating in the electoral process. Thus, the significant exposure of a candidate led to a directly proportional reduction in the online media exposure of the other candidates in the electoral process. However, the use of digital technologies and artificial intelligence, both by candidates or electoral competitors, and by political parties, their supporters or sympathizers, must be transparent in order to guarantee the integrity and impartiality of the elections. Otherwise, voters are prevented from forming an opinion about the candidates and the electoral alternatives or may be misled regarding the identity and quality of the candidate or the voting procedures. Therefore, the use of such practices in an electoral process by electoral competitors, including political parties, vests the competent public authorities, according to the law, to verify, ascertain and, where appropriate, sanction such conduct". In other words, the CCR found, based on the information presented by the SRI, SIE and STS in the meeting of the Supreme Council for National Defense of November 28, that a "distortion of the manifestation of the voters' will" took place during the electoral process, that the equality of opportunities of the electoral competitors, "which reflects an alteration of the very right to be elected" and that voters were misled regarding the identity and quality of the candidate or the voting procedures, reasons for which he decided to cancel the entire presidential electoral process.

• Breton, criticized by Elon Musk

Regarding Thierry Breton's position expressed on French television, he stated that the European Union now has the necessary mechanisms to prevent external interference and to protect the integrity of democratic processes. The former European Commissioner referred to the case of Romania, as a precedent for Germany given that the head of Tesla and X (formerly Twitter), Elon Musk, openly declared his support for the AfD (Alternative fur Deutschland) - he even conducted an interview last week with Alice Weidel, the leader of that German political party -, Breton demanding that the authorities act in such situations.

Breton's statements did not go unanswered. Elon Musk harshly criticized the former European Commissioner's position, stating that it is exactly what "a tyrant would say." Musk advocated for freedom of expression, emphasizing its importance in democratic societies, while Breton argued that Europe is equipped with strict laws to sanction non-compliance with the rules.

We also point out that Thierry Breton's statements come in the context in which last year he declared himself dissatisfied with the reinstatement of Ursula von der Leyen as President of the European Commission, a position that the former French European Commissioner was aiming for, dissatisfaction that brought him into contradiction with the position expressed by French President Emmanuel Macron, which led to the withdrawal of Breton's nomination by Hexagon and his replacement with Stephane Sejourne in the current European Union Executive.

The case of Romania and Breton's statements raise serious questions about the balance between the protection of democratic processes and respect for freedom of expression. They also highlight the growing tensions between European authorities, on the one hand, and the Russian Federation and tech giants, on the other, as well as the challenges facing democracies in the digital age.

It remains to be seen whether the CCR ruling of 6 December 2024 will become a norm for political crisis management in Europe or whether it will be seen as a controversial exception, which risks eroding public trust in democratic institutions.