On The Intricate Dialogue Between The Constitutional Court Of Romania And The Court Of Justice Of The European Union

On The Intricate Dialogue Between The Constitutional Court Of Romania And The Court Of Justice Of The European Union Presented by: Dr. Károly Date: 13 October 2023 Periodization - 2003-2006 is the pre-accession period in which the CC tries to create a jurisprudential connection with the EU/ CJEU; - 2007-2008 is a period of adaptation characterized by amateur or contradictory decisions; - 2009-2018 is a period in which we can notice a more confident CC, open to a direct dialogue with the CJEU and with a case law that seems to be consolidated; - 2018-2022 is a period of jurisprudential tensions and failed dialogue; - After 2022 a turn to a lenient approach toward the CJEU. Amendment of the Constitution/ Accesion - Accession to the EU structures starts from the fact that the member states of the EU agreed to place the acquis Communautaire - the constitutive treaties of the European Union and the other EU binding normative acts - on an intermediate position between the Constitution and the other laws (D.148/2003) - Complementing the Constitution via CJUE case law - non-discrimination on age criterion (D. no.513/2006) 2009-2018 - Article 148(2) of the Constitution includes, implicitly, a clause for compliance of internal laws with European Union acts (D. 64/2015) - The Constitution makes a clear distinction between the Constitution and internal laws. It uses the two notions either together or separately, so the CC also follows the same matrix. - An initiative for the amendment of the Constitution established that European Union law applies without any distinction within the national legal order and that the same initiative did not distinguish between the Constitution and other internal laws (D. 80/2014) - The Court was dissatisfied by this content of the initiative for the amendment of the Constitution as it placed the Constitution in the background of the legal order of the EU-reference to the Polish CC case law - Coman case (2018) Norma Interposta - The paradigm of using EU law in the framework of constitutional review as a norma interposta to the reference rule (D. no.668/2011) - Such an operation involves a cumulative conditionality: • The EU norm has to be sufficiently clear, precise and unequivocal by itself or its meaning must have been established in a clear, precise and unambiguous manner by the CJUE • The norm must be subject to a certain level of constitutional relevance, so that its normative content would support a possible violation by the national law of the Constitution - the only direct rule of reference for the review of constitutionality. - Coman case (2016) - request for preliminary ruling - norma interposta National Constitutional Identity - Control Miti theory • The CC emphasized that the essence of the EU is the conferral of powers made by the Member States- more and more in number - in order to achieve their common objectives, without, of course, ultimately undermining the national constitutional identity (Verfassungsidentität) by that transfer of competences (D. no.683/2012) • The content of the national constitutional identity of Romania can be assessed by making reference to the identity clause, the eternity clause and the integration clause? • CC-national constitutional identity = supremacy of the Constitution • ECJ - Boriss Cilevičs and Others Case C-391/20 - language case • There is simply no nucleus of sovereignty that the Member States can invoke, as such, against the Community - Lenaerts, 1990 • The national constitutional identity regards the people's profound roots. So, there is no constitutional provision that contains such a expressis verbis clause, being the task of the CC to interpret the Constitution in order to identify the values and principles that are inherent to such an identity. • The identity substrate that can be opposed to the EU is a much finer one, it touches the very root of the state's existence, peculiarities of wider general accepted principles or the key, deep and sensitive elements of fundamental rights and freedoms; CVM - 2011-2012 • the CC seemed to have considered that it is also bound by the obligations established by that decision. Thus, it used this act in the framework of the constitutional review as an independent one, however, as an obiter dictum independent argument; • the Court tried to identify in an evaluation report drawn up by the representatives of the European Commission in the basis of the same EC decision a justification/a point of support in its analysis regarding the relationship between the independence and responsibility of the judge from the courts with general jurisdiction - 2018-2022 • The meaning of Decision 2006/928/EC was not clarified by the CJEU in terms of its content, character and temporal extent, so that it cannot constitute a norma interposta in the framework of constitutional review; • Even if Decision 2006/928/EC passes the test of cumulative conditionality, it would not have an impact on the case, because its content recommends general aspects, and not specific ones that could be valued in the case - CC • 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 • Decision 2006/928/CE is binding in its entirety on Romania, as long as it has not been repealed. • The principle of the primacy of EU law must be interpreted as precluding legislation of a Member State having constitutional status, as interpreted by the constitutional court of that Member State, according to which a lower court is not permitted to disapply of its own motion a national provision falling within the scope of Decision 2006/928, which it considers to be contrary to that decision 2018-2022 - The CC found that the CJEU, declaring the binding character of Decision 2006/928, limited its effects because it pointed out that the Romanian authorities have to collaborate institutionally with the European Commission; however, the courts are not empowered to collaborate with a political institution of the EU, but only the national political institutions, such as the Parliament and the Government of Romania (D. 390/2021) - The national judge cannot be put in a position to decide on the priority application as long as the national legislation was declared in accordance with the Constitution by the national constitutional court in light of the provisions of Article 148 of the Constitution - article that requires compliance with the principle of the primacy of EU law. - ECJ - EU law precludes 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 - 51/2016 - evidence obtained with the help of secret services - 26/2019-unconstitutional protocols between the PP-secret services - 302/2017 - lack of competence of DNA - nullity of the evidence so obtained - 685/2018-5 members panel - 417/2019-3 members specialized panel - C-357/19 • - Systemic risk of impunity C-127/2019 • The principle of the primacy of EU law must be interpreted as precluding legislation of a Member State having constitutional status, as interpreted by the constitutional court of that Member State, according to which a lower court is not permitted to disapply of its own motion a national provision ... - 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 timitation period that were interrupted before 2018 as mitior lex ECJ - Lin case (C-107/23) it applies only if the discontinuance took place between 2018-2022 • systemic risk of impunity