National Interpretations and Judicial Practices

National Interpretations and Judicial Practices Presented by: Prof. Dr. Safta Date: 27 December 2022 Has the interpretation of Article 4 TEU (in particular with regard to national identity) been reflected in the practice of national constitutional courts and supreme courts, and if so, on what grounds did the court base its decision? - - Various concepts • Constitutional identity, • The identity of the constitution • National identity. In Europe, the concept of constitutional identity occurred prominently in the context of European integration, appearing as a "key" concept of the relationships between the Member States and the EU and as "a justification of a the constitutional autonomy of the Member States, derogating from the requirements of European integration and going up to the relativization of the primacy of EU law". - The interest and conceptual developments started from the normative content of Article 4 (2) of the Treaty on the European Union. This text, introduced by the Treaty of Lisbon, supports a connection between the national identity of the Member States and their constitutions, which resulted in the development of the concept of constitutional identity. - Likewise, the case-law developments of the CJEU, with reference to the same text of the TEU, relate to the structuring of an own identity of the EU, which coexists with the national identities of Member States. In Case C-156/21, having as subject-matter an action for annulment formulated under Article 263 TFEU, introduced on 11 March 2021, Hungary supported by the Republic of Poland, v. the European Parliament and the Council of the European Union - "127 The values contained in Article 2 TEU have been identified and are shared by the Member States. They define the very identity of the European Union as a common legal order. Thus, the European Union must be able to defend those values, within the limits of its powers as laid down by the Treaties. (...) - 232. In that regard, it must be borne in mind that Article 2 TEU is not merely a statement of policy guidelines or intentions, but contains values which, as noted in paragraph 127 above, are an integral part of the very identity of the European Union as a common legal order, values which are given concrete expression in principles containing legally binding obligations for the Member States. (...) - The cited judgment establishes a counter-limit for the affirmation of the "distinct national identities" of the Member States, to the effect that this cannot be contrary to the rule of law as an integrative principle of the values enshrined in Article 2 of the TEU The Identity Of The Constitution- The Constitutional Identity - In one opinion• "constitutional identity remains an essentially subjective concept and cannot be deduced objectively. The only reality that can be operated with is the identity of the Constitution, which can be determined through interpretation and application from the norms it contains." - Another opinion• The "identity of a constitution" may differ from jurisdiction to jurisdiction and the applicability of constitutional provisions may be subject to the jurisdiction of those constitutional courts or high courts. From a legal point of view, the applicable "constitutional identity" comprises those articles which can be used with reference to EU law and non-constitutional amendments and which are presumably intended to be enforced in relation to international human rights obligations. - Another opinion – • a nuanced approach is proposed, finding, in essence, that constitutional identity, a "meta legal, vague and subjective concept" is more than the identity of a constitution, namely a set of norms that define the constitutional order at a given moment. To this effect, one of the "most controversial applications of this last concept (...) is invoked, namely the one regarding the ascertainment as inconsistent with the constitutional identity of a State or a society, not supranational imperatives (as was the case most often among the Member States of the European Union), but of the constitutional provisions themselves. (...) A genuine test for the constitutional resilience of certain values, the concept of constitutional identity can also be used to reveal tensions between the norms and the society to which they are addressed. - Examining the case-law of the CCR, we note that the concepts of "constitutional identity" and "national identity" are invoked, in various contexts, whose shaping have a more pronounced dynamic in the Court's recent case-law. - As a Judge of CCR expressed himself (2019), therefore with regard to the case-law up to that time, "the CCR has not exploited the concept of national constitutional identify to its fullest so far. This was due, inter alia, to the fact that the Court was keen on proving that European law, i.e. the values and the principles enshrined in the European legal order, are unconditionally accepted." - However, both the developments up to the time of the quoted comment and the more recent developments, (likely to define the concept of constitutional identity in conjunction with the provisions of Article 152 of the Constitution which enshrine the limits of revision of the Constitution) create, as it was also shown by the magistrates of this Court, a "protection shield" of the supremacy of the Constitution, which can be activated in the event the core of constitutional identity would be affected. The meaning seems to be that the process of constitutional integration at the EU level has a clear institutional limit: to where the fundamental, political and constitutional structures of Member States are reached. CCR held that - "Member States maintain powers that are inherent in order to preserve their constitutional identity, and the transfer of powers, as well as the rethinking, emphasis or establishment of new guidelines within the already transferred powers, belong to the constitutional margin of appreciation of Member States." Decision No 683/2012 - "In the application of Article 11 (1) and Article 148 (2) and (4) of the Constitution, Romania fulfils in good faith the obligations resulting from the act of accession, not interfering with the exclusive jurisdiction of the European Union and, as established in its case-law, by virtue of the compliance clause contained by Article 148 of the Constitution, Romania cannot adopt a normative act contrary to the obligations it undertook as a Member State. Obviously, all those previously mentioned have a constitutional limit, expressed in what the Court qualified as "national constitutional identity" (see Decision No 683 of 27 June 2012, published in the Official Gazette of Romania, Part I, no. 479 of 12 July 2012, or Decision No 64 of 24 February 2015, published in the Official Gazette of Romania, Part 1, no. 286 of 28 April 2015).» Decision No 887/2015 - "Under Article 148 of the Constitution, the legislator is one of the entities that ensures the fulfilment of the obligations resulting from the accession, and the lawmaking process in this matter falls within this margin of appreciation, in compliance with the constitutional limits regarding constitutional identity, read in conjunction with national sovereignty and with the constitutional obligations arising from Articles 11 and 20 of the Constitution". Decision No 682/2018 - Taking a brief look at the Romanian constitutions, starting from 1866, we find that some of the elements of the current Constitution are also present there. - According to Article 1 of the 1866 Constitution, "The United Romanian Principalities were an indivisible State under the name of Romania". - The 1923 Constitution proclaim in Article 1 that "The Kingdom of Romania is national, unitary and indivisible State", a provision which is also enshrined in Article 1 of the 1938 Constitution, according to which "The Kingdom of Romania is national, unitary and indivisible State". - The Constitution of 1948 sets out in Article 1 that "The Romanian People's Republic is a popular, unitary, independent and sovereign State", - The Constitution of 1953 enshrines in Article 17 that "The democratic-popular Romanian Sate unitary, sovereign and independent State" and - The Constitution of 1965 covers in Article 1 the characteristics of the State as "sovereign, independent and unitary. Its territory is inalienable and indivisible". • Irrespective of the form of government or the political regime, certain essential elements have remained unchanged in the Constitutions, which characterize the Romanian State; • Beyond these "permanencies", which either cross time or fix the constitutional present (through the "sacrosanct core" of the Constitution), it seems that there is a wider content of identity, which emerges from the case-law of the Constitutional Court. We just have to see how this case-law will progress. However, the protection provided by the preservation of a hard, intangible core gives consistency to the concept of constitutional/national identity. How has the academic position changed from accession to the present day as regards the assessment of the impact of EU law on the Member States (e.g. primacy of EU law, relevance of CJEU decisions)? - The examination of the Romanian legal literature in the matter of EU law does not reveal a significant change regarding the aspects covered by this question. However, there can be identified topics and moments that have given rise to debates, sometimes extremely lively, to which we will refer further. - As a general rule, various works and articles sought over time to explain the legal order of the EU, the analysis of the case-law of the CJEU with reference to the fields of interest for the authors, the treatment of jurisprudential developments regarding the acts of the EU institutions and their effects, the examination of the issue related to the preliminary references or punctually of the preliminary references formulated by the Romanian courts of law, the acceptance of EU law through the case-law of the CCR or the developments of the constitutional review at the confluence of national-European plans. - At various times and with various intensities, the CCR was under the spotlight as the case-law established regarding the interpretation and application of EU law and the relationships with the CJEU was the target of critical assessments. In the context of the polemics determined by the topic of priority vs. primacy of EU law, criticisms were also directed to the CJEU. - One such moment that raised lively debates was the ascertainment of the unconstitutionality of Law No 298/2008 transposing into national law the Directive 2006/24/EC on data retention (the Data Retention Directive). The Court declared unconstitutional the law in its entirety, for going beyond a justified and proportionate limitation of the rights to privacy, secrecy of correspondence, freedom of expression and presumption of innocence, as guaranteed by the Constitution. - The CCR - criticism because "confronted with a national law transposing a piece of EU secondary legislation allegedly violating human rights, adopted a completely EU-blind attitude. The Court simply nationalized the EU source of the national law." - These specific criticisms are placed in a general critical context of the attitude of the CCR, qualified as hesitating, to address preliminary references ("the Hesitating Steps of the Romanian Courts Towards Judicial Dialogue on EU Law Matters"), as well as the interpretation of Article 148 of the Constitution, called, in the same specialized literature, "the Achilles heel in the CCR's caselaw after 2007, in the sense that whenever it stumbled upon it, the Court avoided analyzing its legal effects within the constitutional review of national legal provisions". - Substantial debates were determined by Decision No 390/2021, which we repeatedly referred to in the answers to questions, as well as by the context created by the tense dialogue between the CCR and the CJEU in 2021. Thus, perhaps the most radical criticism that we have identified belongs to Professor V. Perju, in a study entitled "Roexit through the decision 390/8 June 2021 of the CCR"?. - Professor B. S. Guțan expresses a critical opinion, arguing that "the Decision 390/2021 is a hallucinating succession of legal nonsense, in which the Constitutional Court literally renders the ECJ judgment devoid of any effect in respect of national courts and practically forbids the latter to apply EU law and disregard contrary provisions of the national legislation." - The tense dialogue between the CCR and the CJEU during 2021, as well as the recent decisions of other constitutional courts that called into question the primacy of the EU law have, moreover, determined a polarization of academic interest on the subject of the relationships between EU and national law. - Therefore, professor M. Dutu discusses about "A major danger: the legal disintegration of the European - Likewise, critical opinions were expressed regarding the judgments issued by the CJEU - Professor Marin Voicu (former ECHR judge) in an analysis of the CJEU judgment of 18 May 2021 In connection with the above questions, is the method of constitutional dialogue in force in the Member State? Among which institutions has this practice developed? - The constitutional dialogue (in the form of preliminary references, bilateral and multilateral meetings, international congresses and conferences) has led to a higher harmony of the European constitutional courts. - The issue of authority relationships remained latent, as shown by the recent turbulence in this space, including in the relationships between the CCR and the CJEU, which we distinctly referred to in our answers. - Such "turmoil" (and therefore the need for dialogue) also exists horizontally, at the national level, in the relationships between the constitutional courts and common law courts. The recent developments in Romania, namely the preliminary references addressed to the CJEU, regarding the effects of the CCR's decisions and the disciplinary liability of national judges for non-compliance with these decisions are a clear proof of the tense moments that can be created and the necessary institutional dialogue for the prevention and settlement of disputes. - Multilateral dialogue • 2021 a Conference took place that we could qualify as historical, held by the Constitutional Court of the Republic of Latvia and the CJEU. (EU united in diversity: between common constitutional traditions and national identities International Conference Riga, Latvia - 2-3 September 2021 CONFERENCE PROCEEDINGS) • It was the first time in the history of the European Union when judges from the constitutional courts and constitutional jurisdictions of 23 Member States, as well as the CJEU, met to discuss the EU's common legal traditions and how to comply them with the constitutional traditions and national identities of the Member States in order to establish a single and harmonious European area of justice. • Concluding in the speech that prefaces the volume of the Conference, the president of the Constitutional Court of Latvia emphasizes, inter alia, the two dimensions revealed in the works and speeches: • "There are the common values of the European Union, the European constitutional tradition of democracy, human dignity, the rule of law, and there is the value and importance of each Member State in this area, characterized above all by its national constitutional identity, which the countries of the European Union are committed to safeguarding. The CJEU is prepared to respect this national constitutional identity; however, it is necessary to establish criteria for defining what constitutes a national constitutional identity. This is important because it cannot be contradictory with the European constitutional tradition. It is essential to draw figurative borders between the common constitutional traditions of Europe as a whole and the sacrosanct core of the constitutional identity of each Member State". - A call to the academic community, which "are developing comparative constitutional law theory, thereby increasingly revealing the constitutional core of each country", to "undertake further research on these issues". - The period that followed this conference is marked by concerns and debates on both levels, namely the cooperation between the constitutional courts and in the academic sphere. Thus, for example, on 5 September 2022, there was a working meeting hosted by the Constitutional Court of Italy, in which the President of the CJEU, Prof. K. Lenaerts participated, and which debated the topic of constitutional identity. On 30 September 2022, the president of the CJEU had a working meeting at the Constitutional Court of Romania and the examples can continue. CONCLUSIONS – questions - The concept of constitutional identity is unclear and then its very use raises concerns. • What exactly is constitutional identity? (identity clause) • What does "identity" mean? • Whose identity or the identity of what? (EU identity as a limit of the revision of the Constitution?) • Who has the legitimacy to define constitutional identity, especially in conflict situations within the same legal order to which the States consented through the act of accession? How and when can constitutional identity be invoked? - These questions and other related ones that may arise are as many topics of doctrinal analysis and jurisprudential clarifications.