Riscul aplicării retroactive a legii nr. 65/2023 în calificarea juridică a încălcărilor grave ale regulilor de etică și conduită profesională [Articol]

Abstract

This article continues the legal-normative analysis of Law No. 65/2023, focusing on the Evaluation Commission’s prerogative to assign legal qualifications to established facts, particularly the conduct referred to in Article 11(2)(a) – “serious breach of rules of ethics and professional conduct.” The hypothesis is that exercising this prerogative may generate effects contrary to the principle of non-retroactivity and legal certainty. The study explores, on one hand, the normative potential of the provisions to produce materially retroactive effects, and on the other hand, the concrete risks arising from the Commission’s application of this prerogative during evaluations. The analysis is correlated with ethical and professional conduct rules applicable to candidates from the legal profession, highlighting the existence of a dual form of retroactivity – normative and applicative – likely to undermine legal stability and fundamental rights. The study distinguishes between cases where the law produces intrinsically retroactive effects (rendering it unconstitutional) and those involving a high risk of materially retroactive application, which in practice amounts to arbitrary or abusive enforcement of Law No. 65/2023.