Separation of Powers and Loyal Cooperation between Public Authorities

According to the famous quotation from Montesquieu, ‘power must stop power’. The theory of the separation of powers remains the prevailing instrument for the taming and rationalisation of power across the globe. Recently, the Venice Commission has emphasised a possible corollary of the principle of the separation of powers, which it has labelled as ‘loyal cooperation between public authorities’. From a mere expressive description of a desirable state of relations between public authorities within a state, the formula loyal cooperation has been ennobled so as to reach the level of a yardstick for a democratic state governed by the rule of law. From the Venice Commission, the formula has been taken up by constitutional courts and transfigured into a constitutional standard in judicial review. This paper will endeavour to explain the misuses enabled by loyal cooperation in the case law of the Constitutional Court of Romania and to identify possible ways to correct such deviations.