Romanian Constitutional Identity

Romanian Constitutional Identity Presented by: Prof. Dr. Safta Date: 13 December 2022 HOW ARE EU LEGAL ACTS INCORPORATED INTO ROMANIAN LAW? - ARTICLE 11: International law and national law • (1) The Romanian State pledges to fulfil as such and in good faith its obligations as deriving from the treaties it is a party to. • (2) Treaties ratified by Parliament, according to the law, are part of national law. • (3) If a treaty Romania is to become a party to comprises provisions contrary to the Constitution, its ratification shall only take place after the revision of the Constitution. • See also art.148 (1) > Romania's accession to the constituent treaties of the European Union, with a view to transferring certain powers to community institutions, as well as to exercising in common with the other member states the abilities stipulated in such treaties, shall be carried out by means of a law adopted in the joint sitting of the Chamber of Deputies and the Senate, with a majority of two thirds of the number of deputies and senators. - ARTICLE 20: International treaties on human rights • (1) Constitutional provisions concerning the citizens' rights and liberties shall be interpreted and enforced in conformity with the Universal Declaration of Human Rights, with the covenants and other treaties Romania is a party to. • (2) Where any inconsistencies exist between the covenants and treaties on the fundamental human rights Romania is a party to, and the national laws, the international regulations shall take precedence, unless the Constitution or national laws comprise more favorable provisions. - ARTICLE 148: Integration into the European Union • (1) (...). • (2) As a result of the accession, the provisions of the constituent treaties of the European Union, as well as the other mandatory community regulations shall take precedence over the opposite provisions of the national laws, in compliance with the provisions of the accession act. • (3) The provisions of paragraphs (1) and (2) shall also apply accordingly for the accession to the acts revising the constituent treaties of the European Union. • (4) The Parliament, the President of Romania, the Government, and the judicial authority shall guarantee that the obligations resulting from the accession act and the provisions of paragraph (2) are implemented. - The answer to the question regarding incorporation of EU acts into national law requires a systematic interpretation of the Article 11, Article 20 and Article 148 of the revised Constitution (Article 148 "the accession clause") - The following conclusions arise from those three texts: • Treaties ratified by Parliament are part of national law; • Human rights treaties to which Romania is a party constitute a separate category: they form part of the "constitutional block", with constitutional interpretative value (meaning that the constitutional provisions must be interpreted and applied in accordance with the provisions of international human rights treaties to which Romania is a party), and priority for application in the event of inconsistency with national laws, unless the Constitution or national laws contain more favorable provisions; • The founding Treaties of the European Union, including the Charter of Fundamental Rights of the European Union, as well as other binding European regulations, constitute a category of international acts with a distinct legal regime in the sense the have priority in case of conflict with provisions of domestic laws; the CCR stated that they have a supra-legislative but infraconstitutional position. - According to art. 148 of the Constitution, as concerns EU acts, we distinguish between: • The primary law, (the founding treaties of the EU and the revision acts thereof), which require ratification (sense in which we return to the basic rules laid down in Article 11 of the Constitution) • The secondary law (the Constitution expressly specifies the binding community regulations, other than the treaties), which are applied in the national legal order according to the rules applicable in EU law to each category of acts • ! the priority of the founding treaties of the European Union, as well as the other binding community regulations, over the contrary provisions of the NATIONAL LAWS - ? What does it mean national laws? The concept of "national (internal) laws" refers to the other normative acts in the legal system (according to the CCR's jurisprudence), and not to the Constitution itself, which is the supreme law in Romania. - By Decision No 148/2003 on the initiative for the revision of the Constitution, the Court ruled as follows: • Accession to the European Union, once achieved, entails a series of consequences that could not occur without an appropriate regulation, of constitutional rank. The first of these consequences requires the integration of the community acquis into national law, as well as the determination of the relationship between the community normative acts and the national law. The solution proposed by the authors of the initiative for revision aims to implement community law in the national space and establish the rule of priority application of community law over the contrary provisions of national laws, in compliance with the provisions of the act of accession. The consequence of the accession is based on the fact that the Member States of the European Union understood to place the acquis Communautaire - the founding treaties of the European Union and the regulations derived from them on an intermediate position between the Constitution and the other laws, when it comes to binding European normative acts. - Subsequently, consistent with those was ruled even from the year 2003 on the occasion of the constitutional review of the initiative for the revision of the Constitution regarding the relationships between the national and European legal order, the CCR reasserted the principle of supremacy of the Constitution over the entire national legal order, at the time when it ruled upon another initiative for revision of the fundamental law, in 2014, Decision No 80/2014, - This conclusion of the Constitutional Court of Romania has remained constant over time, being reiterated in a more recent decisions. a specific dimension of incorporation - the use of EU acts within the constitutional review - According to an established case-law of the CCR, "the use of a norm of European law within the framework of constitutional review as a norm interposed to that of reference [A/N the Constitution | implies a cumulative conditionality: - THIS RULE MUST BE SUFFICIENTLY CLEAR, PRECISE AND UNEQUIVOCAL BY ITSELF OR ITS MEANING MUST HAVE BEEN ESTABLISHED CLEARLY, PRECISELY AND UNEQUIVOCALLY BY THE COURT OF JUSTICE OF THE EUROPEAN UNION AND - THE NORM MUST BE LIMITED TO A CERTAIN LEVEL OF CONSTITUTIONAL RELEVANCE, SO THAT ITS NORMATIVE CONTENT SUPPORTS THE POSSIBLE VIOLATION OF THE CONSTITUTION BY THE NATIONAL LAW THE ONLY DIRECT NORM OF REFERENCE WITHIN THE CONSTITUTIONAL REVIEW. - In such a hypothesis, the approach of the Constitutional Court is different from the simple enforcement and interpretation of the law, a power that lies with the courts and administrative authorities, or from the possible issues related to the legislative policy promoted by Parliament or the Government, as the case may be. In view of the stated cumulative conditionality, it falls within the discretion of the Constitutional Court to apply within the constitutional review the decisions of the Court of Justice of the European Union or to formulate preliminary rulings by itself in order to establish the content of the European norm. (see Coman Case) - As for this last clarification, the CCR has repeatedly stated that it is for the national judiciary to apply the law, including EU law, and, as the case may be, to address the CJEU with a preliminary reference or give effect to the principle of the primacy of EU law. What is the approach of the Member States when additional powers are transferred compared to those conferred at the time of accession? Does this require formal legislation or is it subject to (constitutional) court interpretation? - As long as the granting of new powers to the EU would mean the amendment of the constituent treaties of the EU, it follows that this amendment would require the adoption by Romania of a law for the ratification of the treaty revising those constituent treaties. To the extent that, within the framework of the a priori constitutional review (if it were notified to this effect), the CCR would find that such a Treaty violates the Constitution; its ratification could only be done after the revision of the Constitution. - The connecting "keys" of the two legal orders are Article 11, Article 20 and Article 148 of the Constitution, • Article 11 the general framework regulating the ratification of international treaties - The constitutional verification of the treaty before ratification can be done by the Constitutional Court, upon referral, pursuant to Art. 146 b) of the Constitution • Once ratified, the treaty obliges Romania, which according to Art.11 (1) of the Constitution, "it shall pledge to fulfill as such and in good faith its obligations as deriving from the treaties it is a party to". - The ratification of a treaty containing provisions in violation of the Constitution can only be signed after the revision of the Constitution. • As for the revision procedure, the express provisions of the Romanian Basic Law are relevant, which enshrine the applicable rules revision)