Purposivism And Consequentialism In Assessing The Rule Of Law In Romania The CJEU Approach

Purposivism And Consequentialism In Assessing The Rule Of Law In Romania The CJEU Approach Presented by: Dr. BENKE Date: 11 – 12 January 2025 Scalia - Rejects judicial speculation about both the drafters' extra textually derived purposes and the desirability of the fair reading's anticipated consequences - If any interpretive method deserves to be labeled an ideological "device," it is not textualism but competing methodologies such as purposivism and consequentialism, by which the words and implications of text are replaced with abstractly conceived "purposes" or interpreter-desired "consequences." - Felix Frankfurter - "interpretations by judicial libertines" - The STOP sign story Scalia – Purposivism - No textualism, which frees the judge from interpretive scruple, comes in various forms. - The no textualists' favorite substitute for text is purpose. - So-called purposivism, which has been called "the basic judicial approach these days," facilitates departure from text in several ways. - Where purpose is king, text is not-so the purposivism goes around or behind the words of the controlling text to achieve what he believes to be the provision's purpose. - Purpose of the author (the legislature or private drafter)-which means that all sorts of nontextual material such as legislative history becomes relevant to revise the fairest objective meaning of the text. - The most destructive (and most alluring) feature of purposivism.is. Its. Manipulability. Scalia – Consequentialism - Pragmatism or workability; - The proponents of this view urge that statutes should be construed to produce sensible, desirable results, since that is surely what the legislature must have intended. - Difference between an objective test (the text)-which sometimes provides no clear answer, thus leaving the door open to judicial self-gratification-and tests that invite judges to say that the law is what they think it ought to be. - Mask of judicial lawmaking CJEU - Article 2 TEU constitutes a precondition for the accession to the European Union of any European State applying to become an EU member. It is in that context that the CVM was established by Decision 2006/928 in order to ensure that the value of the rule of law is complied with in Romania. • - (18 May and 21 December 2021) The benchmarks in the Annex to Decision 2006/928 are intended to ensure that Romania complies with the value of the rule of law (CJEU - 18 May 2021 para.178) - Repeated twice in the operative part - CVM - instrument in assessing the rule of law Benchmarks - 1. Ensure a more transparent, and efficient judicial process notably by enhancing the capacity and accountability of the Superior Council of Magistracy. Report and monitor the impact of the new civil and penal procedures codes. - 2. Establish, as foreseen, an integrity agency with responsibilities for verifying assets, incompatibilities and potential conflicts of interest, and for issuing mandatory decisions on the basis of which dissuasive sanctions can be taken. - 3. Building on progress already made, continue to conduct professional, non-partisan investigations into allegations of high-level corruption. - 4. Take further measures to prevent and fight against corruption, in particular within the local government. CVM - CC-137/2018 • Decision 2006/928/EC cannot have constitutional relevance, since it neither develops a constitutional norm nor does fill a gap in the national fundamental law. The Court emphasized that even less the reports issued pursuant to decision 2006/928 can have constitutional relevance - CJUE-18 May 2021 • Decision 2006/928/CE is binding in its entirety on Romania, as long as it has not been repealed. • …as is apparent from recital 6 of Decision 2006/928 and from the particularly broad wording of the first, third and fourth benchmarks set out in the Annex to that decision - and as confirmed by the Commission report referred to in paragraph 158 above -Decision 2006/928 encompasses the judicial system in Romania as a whole and the fight against corruption in that, Member State. • Article 2 TEU  The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail. • Article 19 (1) 2nd para. TEU  Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law.  Article 2 and the second subparagraph of Article 19(1) TEU and Decision 2006/928 must be interpreted as precluding national legislation adopted by the government of a Member State, which allows that government to make interim appointments to the management positions of the judicial body responsible for conducting disciplinary investigations and bringing disciplinary proceedings against judges and prosecutors, without following the ordinary appointment procedure laid down by national law, where that legislation is such as to give rise to reasonable doubts that the powers and functions of that body may be used as an instrument to exert pressure on, or political control over, the activity of those judges and prosecutors.  National legislation is likely to give rise to doubts, even temporarily, it has the effect of allowing the government of the Member State concerned to make appointments to the management positions of the body responsible for conducting disciplinary investigations and bringing disciplinary proceedings against judges and prosecutors, by disregarding the ordinary appointment procedure laid down by national law. • Article 2 TEU  The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail. • Article 19 (1) 2nd para. TEU  Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law  the creation of such a section falls within the first, third and fourth benchmarks set out in the Annex to Decision 2006/928 • Article 2 and the second subparagraph of Article 19(1) TEU and Decision 2006/928 must be interpreted as precluding national legislation providing for the creation of a specialized section of the Public Prosecutor's Office with exclusive competence to conduct investigations into offences committed by judges and prosecutors, where the creation of such a section • Is not justified by objective and verifiable requirements relating to the sound administration of justice, and • Is not accompanied by specific guarantees such as, first, to prevent any risk of that section being used as an instrument of political control over the activity of those judges and prosecutors likely to undermine their independence and, secondly, to ensure that that exclusive competence may be exercised in respect of those judges and prosecutors in full compliance with the requirements arising from Articles 47 and 48 of the Charter of Fundamental Rights of the European Union. - CJEU-21 December 2021 • Article 2 TEU  The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail. • Article 19 (1) 2nd para. TEU  Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law • Article 2 TEU, the second subparagraph of Article 19(1) TEU and Decision 2006/928 are to be interpreted as not precluding national rules or a national practice under which the decisions of the national constitutional court are binding on the ordinary courts, provided that the national law guarantees the independence of that constitutional court in relation, in particular, to the legislature and the executive, as required by those provisions. However, those provisions of the EU Treaty and that decision are to be interpreted as precluding national rules under which any failure to comply with the decisions of the national constitutional court by national judges of the ordinary courts can trigger their disciplinary liability. • The requests for a preliminary ruling do not contain any detailed information from which it is apparent that those decisions were made in a context giving risę to, a reasonable doubt as to the complete compliance of the Constitutional Court with those requirements. From General To Specific - (CJEU - 22 February 2022) • The second subparagraph of Article 19(1) TEU, read in conjunction with Article 2 and Article 4(2) and (3) TEU, with Article 267 TFEU and with the principle of the primacy of EU law, must be interpreted as precluding national rules or a national practice under which the ordinary courts of a Member State have no jurisdiction to examine the compatibility with EU law of national legislation which the constitutional court of that Member State has found to be consistent with a national constitutional provision that requires compliance with the principle of the primacy of EU law. • The second subparagraph of Article 19(1) TEU, read in conjunction with Article 2 and Article 4(2) and (3) TEU, with Article 267 TFEU and with the principle of the primacy of EU law, must be interpreted as precluding national rules or a national practice under which a national judge may incur disciplinary liability on the ground that he or she has applied EU law, as interpreted by the Court, thereby departing from case-law of the constitutional court of the Member State concerned that is incompatible with the principle of the primacy of EU law. 2023-2024 - Statute of limitation - substantive criminal institution - CC 297/2018 + 358/2022 - The flow of limitation period cannot be discontinued by any act - Supreme Court - • It resulted a more lenient criminal normative context • It applies imitation period that were interrupted before 2018 as meteor lex CJEU - Lin case (C-107/23) it applies only if the discontinuance took place between 2018-2022 • - Systemic risk of impunity CJEU - Order (C-131/23) - financial interests of the EU to corruption cases