An Examination of the Lisbon Treaty and National Jurisprudence

An Examination of the Lisbon Treaty and National Jurisprudence Presented by: Prof. Dr. Safta Date: 20 December 2022 Has there been any internal examination, legal procedure at Member State level of the entry into force of the Constitutional Treaty and the Lisbon Treaty and its impact on the legal order of the Member States? - The Treaty of Lisbon was submitted to the ratification procedure by Parliament of Romania, through Law No 13/2008 for the ratification of the Treaty of the Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, signed in Lisbon on 13 December 2007 - The ratification of the Treaty of Lisbon was carried out in an emergency parliamentary procedure, no constitutionality issues were raised, no limits related to national or constitutional identity were opposed. The Constitutional Court was not referred to rule upon the constitutionality of the Treaty of Lisbon. As for the concept of identity with reference to Romania, it appears in the intervention of the representative of the Party Romania Mare. Speaking of the interests of Romanians in this context, he mentions those related to "their identity as a people" with the emphasis on the fact that "Romania is in Europe" and what is being discussed is only the entry into the European structures. Moreover, the concept of identity appears in one of the speeches, but in a generic reference to "the new identity of the European Union" On which issues has the national Constitutional Court refused to intervene in order to protect national law and competence and on what grounds? - We have not identified situations that can be qualified as a "refusal" exercised by the Court in order to protect national law or competence in the relationships with the EU legal order. - As far as these relationships are concerned, it might be noted the distinction made by the CCR between its competence and that of the courts of law when the issue of the interpretation and application of EU law is raised in terms of Article 148 (2) of the Constitution. - As a rule, the CCR ruled that it falls within the competence of the courts of law to assess the priority of applying EU law, as this is an issue of applying the law in concrete disputes, and not of constitutionality. - There are also cases in which the CCR found the unconstitutionality of national legislation contrary to the obligations of national authorities in the context of EU accession. - Example: • Considering that the Parliament had abrogated the domestic pro provisions allowing for an extraordinary appeal against an irrevocable decision breaching EU law, the CCR held the unconstitutionality of this provision: Law No 299/2011 for the repeal of Article 21 (2) of the Administrative Litigation Law No 554/2004, as a whole, is unconstitutional; the provisions of Article 21 (2) first sentence of the Administrative Litigation Law No 554/2004 are unconstitutional insofar as they are interpreted to the effect that they cannot be subject to review of final and irrevocable decisions pronounced by courts of appeal, in breach of the priority principle of European Union law, when it does not reveal the merits of the case"). The CCR invoked the EU accession clause (Article 148), which requires all national authorities to ensure the "priority" of EU law. • Moreover, the Court found that by granting no remedy for the breach of EU law, the principle of loyal cooperation enshrined in Article 4(3) TEU would be disregarded and the constitutional obligations of Article 148 accession clause would be rendered merely illusory. At the same time, the CCR found that the very essence of the principle of 'priority' (primacy) would be hampered. • In support of its reasoning, the CCR referred to the benchmark cases of the 126 127 CJEU: Van Gend en Loos and Costa v ENEL. It was stated that the lack of a judicial remedy would entail the denial of the principle of "priory application of Union law," which would be contrary to the Constitution and the obligations undertaken by the EU acceding Treaties. Decision No 1039/2012 On which issues has the national Constitutional Court acted in defense of national law and competence and how? What was the scope of the case from the point of view of the exercise of competence by the European Union and by the Member States? - The very way in which the CCR interprets Article 148 of the Constitution (the so-called integration/compliance clause), gives expression to the concept of the supremacy of the Constitution and the protection of this supremacy, including in relationships with EU law. - Starting with Decision No 148/2003 pronounced on the initiative for the revision of the Constitution and until now, in various tones, more cautious or more hesitant, more or less open/friendly, the Court expresses this idea, which has remained a consistent aspect of its case-law. - Over time, this idea was developed with reference to the concept of constitutional identity, which the CCR identifies it enshrined in Article 11(3) in conjunction with Article 152 of the Fundamental Law (the limits of revision of the Constitution), as a guarantee of a core identity of the Romanian Constitution and which should not be relativized in the process of European integration (paragraph 81 of Decision No 390/2021). However, from the analysis of the CCR case-law it can be noted that Article 152 of the Constitution, which enshrines the limits of the revision, represents only a "core identity", sense in which we gave as examples decisions in which aspects that are not in this core (such as the regulation of the status of parliamentarians or the judicial organization) were assessed as belonging to the same constitutional identity. - The protection of the supremacy of the Constitution and the jurisdiction of the constitutional court, in view of the relationship between the Constitution and EU law, sense in which the CCR found the unconstitutionality of an initiative for the revision of the Constitution that aimed at changing these relationships Decision No 80 of 16 February 2014 - The margin of appreciation of the legislator in various matters, related to the powers of the EU, and the integration/compliance provision covered by Article 148 of the Constitution (example: "the retirement of magistrates falls within the exclusive jurisdiction of the Member States, being a purely national situation, which does not bring into question European Union law." - The status of parliamentarians CCR invoked the limit of national constitutional identity, holding that "each Member State, by virtue of the principle of national constitutional identity, has full freedom in terms of establishing the normative framework regarding the status of parliamentarians active in the national legislative forum, including the legal regime of patrimonial rights regarding the exercise of these public offices." Decision No 964/2012 - Judicial organization CCR noted to this effect that "the way of organizing the national justice system is part of the constitutional identity of the Romanian State." Decision No 88/2022 Has the interpretation of Article 2 TEU (in particular with regard to the rule of law) been reflected in the practice of national constitutional courts and supreme courts, and if so, on what grounds did the court base its decision? - The Constitution of Romania characterizes the Romanian State in Article 1 and establishes in paragraph (3) of this article that "Romania is governed by the rule of law". - As a guarantor for the supremacy of the Constitution, the CCR has defined and applied this principle in its case-law, also in conjunction with the international treaties to which Romania is a party, through the appropriate enforcement of Articles 11, 20 and 148 of the Constitution, as well as the case-law of the European Court of Human Rights (ECHR) and the European Court of Justice (CJEU). Likewise, the CCR invoked in a series of decisions documents of the Venice Commission, in respect of which it pointed out, for example in a case on electoral matters where it envisaged the Code of Good Practices in Electoral Matters, drawn up by the Venice Commission," that indeed this act is not binding, but its recommendations establish the coordinates of a democratic election, in relation to which the States - which are characterized as belonging to this type of regime can express their free choice in electoral matters, complying with the fundamental human rights, in general, and with the right to be elected and to elect, in particular". Decision No 51/2012 - As for the provisions of Article 2 of the TEU (as well as the European Commission's Report on the rule of law of 20 July 2021), they were invoked recently by the Romanian Courts in preliminary references, as well as before the CCR in cases that analyzed the regulations that ordered the establishment and then the dismantle of the Section for the Investigation of offences committed within the Judiciary, in which it was raised the issue regarding the establishment of the effects of acts adopted within the Cooperation and Verification Mechanism imposed on Romania at the time of accession to the EU