A new legal concept could be introduced into the law on the assessment of investments of significance to national security
Mihaela Ciobanu
Parliament proposes amending Law No. 174/2021 on the mechanism for assessing investments of significance to national security by introducing a new legal concept – ‘imminent risk of irreparable harm’. The amendment is included in a draft bill registered on 31 July, which primarily concerns the Audiovisual Media Services Code.
According to the draft, the concept of ‘imminent danger of irreparable harm’ will be defined as “the existence of concrete, objective and verifiable circumstances giving rise to a real and immediate risk of serious harm to national security, which cannot be prevented by less restrictive measures and whose consequences cannot be subsequently averted or remedied”.
WHY IS THIS CONCEPT BEING INTRODUCED
According to the explanatory memorandum accompanying the draft, the introduction of the definition responds to recommendations made by experts from the Council of Europe and the European Commission, who highlighted the need for clear criteria for the application of the restrictive measures provided for by law.
The draft’s authors explain that the new definition aims to limit the discretion of the competent authorities by establishing objective and verifiable legal criteria for determining the existence of such a danger.
‘In this regard, the concept takes into account the existence of specific circumstances, the real and immediate nature of the risk, the seriousness of the harm, and the impossibility of subsequently removing or remedying its consequences. At the same time, the inclusion of the requirement that the harm cannot be prevented by less restrictive measures reflects the principle of proportionality, according to which any interference with the exercise of rights and freedoms must be necessary, proportionate to the legitimate aim pursued, and represent the least intrusive solution amongst the measures capable of preventing the harm”, as stated in the explanatory memorandum.
Furthermore, the authors specify that the proposed legislative solution meets the requirements regarding the quality of the law, predictability and legal certainty, as developed in the case law of the European Court of Human Rights and in the opinions of the Venice Commission. The central argument is that establishing clear, objective and verifiable criteria reduces the risk of arbitrary interpretations and facilitates the exercise of effective judicial review over the legality, necessity and proportionality of measures adopted on the basis of this concept.
WHAT CHANGES IN PRACTICAL TERMS
The amendment does not change the entire investment review mechanism, nor does it introduce a new regime for all investments. The change is a targeted one. Thus, where this concept is relevant to the application of the law, the existence of a threat should be substantiated by concrete and verifiable evidence, not merely by a general assessment of a possible risk to national security.
An important element of the new definition is the condition that the harm cannot be prevented by less restrictive measures. This condition reflects the principle of proportionality: the authorities should resort to a restrictive measure only when it is necessary to prevent harm and when there is no less intrusive alternative that would achieve the same effect.
Consequently, the simple existence of a risk would not be sufficient. The risk must be sufficiently concrete and serious, and the intervention must be justified by the need to prevent harm that could not be remedied at a later stage.
Media Azi previously reported that this mechanism allows the Council for the Promotion of Investment Projects of National Importance to suspend the licences of television and radio stations without a court ruling. Several non-governmental organisations have expressed their concern regarding the legalisation of this mechanism, citing a lack of transparency.
If the bill is passed, the amendment is due to come into force on 1 January 2027.
