Dorneanu’s court claims that the ruling of the EU Court of Justice on the supremacy of European law can be applied in Romania only after the revision of the Constitution

The Romanian Constitutional Court de facto rejects, in a press release, the major decision of the EU Court of Justice, according to which national judges may not apply the decisions of the Constitutional Courts that are contrary to EU law, according to a press release.

In a statement, the RCC states that the effects of the CJEU decision can only occur if the Romanian Constitution is revised.

Relevant passage from the RCC Communiqué:

  • Moreover, the CJEU also recognizes, in its Judgment of 21 December 2021, the binding nature of the decisions of the Constitutional Court. However, the conclusions of the CJEU ruling that the effects of the principle of the rule of law on the rule of law are binding on all bodies of a Member State, without internal provisions, including those of a constitutional nature, preventing national courts from ex officio, any national regulation or practice contrary to a provision of EU law, entails a revision of the existing Constitution. In practical terms, the effects of this Decision can occur only after the revision of the Constitution in force, which, however, cannot be done by law, but exclusively at the initiative of certain subjects of law, in compliance with the procedure and under the conditions provided even in the Romanian Constitution.

Context. National judges may not apply, without the risk of disciplinary action, decisions of the Constitutional Courts, which are contrary to European Union law and where the EU’s financial interests are necessarily neglected – is the decision of the Court of Justice of the European Union, according to a CJEU statement. In addition, the CJEU emphasized that the recommendations of the European Commission for Romania, within the MCV, are binding.

In essence, the CJEU came up with the following arguments:

* European law takes precedence over national law, including CCR decisions

We remind you that, in a summer decision, the JRC interpreted another CJEU judgment of 18 May 2021 in the sense that European law takes precedence over national law, only with regard to infra-constitutional legislation, ie legislation above the Constitution. In addition, the JRC has ruled that national judges cannot leave CCR decisions unenforceable, arguing that they oppose European law and CJEU decisions.

What the Romanian Constitution says

ARTICLE 148
(1) Romania’s accession to the constitutive treaties of the European Union, in order to transfer attributions to the Community institutions, as well as to exercise jointly with the other Member States the powers provided in these treaties, is made by law adopted in the joint sitting of the Chamber of Deputies. Senate, with a two-thirds majority of deputies and senators.

(2) Following accession, the provisions of the Treaties establishing the European Union, as well as other binding Community regulations, have priority over the contrary provisions of national law, in compliance with the provisions of the Act of Accession.

CCR’s full communiqué:

Having regard to the judgment of the Court of Justice of the European Union (CJEU) of 21 December 2021 in Cases C-357/19 Euro Box Promotion and Others, C379 / 19 DNA – Oradea Territorial Service, C-547/19 “Romanian Judges Forum”, C-811/19 FQ and others and C-840/19 NC, which generated debates in the public space regarding its impact on the Romanian Constitutional Court, we make the following clarifications:

By Decision no. 685/2018, the Court ruled on a legal conflict of a constitutional nature which concerned the illegal composition of the Panels of 5 judges organized at the level of the High Court of Cassation and Justice. Finding that they were illegally constituted, the Court established the constitutional conduct to be followed, conduct which is found in art. 503 para. (2) point 1 of the Code of Civil Procedure, according to which the decisions of the court of appeal may be challenged with an annulment appeal when they were given by a court in violation of the rules on the composition of the court and art. 426 lit. d) of the Code of Criminal Procedure, according to which an appeal for annulment may be made against final criminal judgments, when the court has not been composed according to law

By Decision no. 417/2019, the Court ruled on a legal conflict of a constitutional nature which concerned the non-establishment by the High Court of Cassation and Justice of specialized panels for the trial in the first instance of the offenses provided in Law no. 78/2000 for the prevention, discovery and sanctioning of corruption. Finding that these, contrary to the law, were not constituted, the Court established the constitutional conduct to be followed, conduct which is found in art. 421 pt. 2 lit. b) of the Code of Criminal Procedure, according to which when there is a case of absolute nullity regarding the incompetence, the appellate court orders the retrial by the competent court, respectively, in the analyzed case, by the specialized panels.

By Decision no. 51/2016, the Court found unconstitutionality of the phrase “or by other specialized bodies of the state” within the provisions of art. 142 para. (1) of the Code of Criminal Procedure, which means that the mandate of technical supervision can be executed by the prosecutor and the criminal investigation bodies, which are judicial bodies, according to art. 30 of the Code of Criminal Procedure, as well as by the specialized workers within the police, in the conditions in which they may hold the approval of judicial police officers, under the conditions of art. 55 para. (5) of the Code of Criminal Procedure.

By Decision no. 26/2019, the Court ruled on a legal conflict of a constitutional nature which aimed at concluding collaboration protocols between the Public Ministry – the Prosecutor’s Office attached to the High Court of Cassation and Justice and the Romanian Intelligence Service. Noting that these could not be concluded between the two public authorities, the Court established the constitutional conduct to be followed, which is found in point 3 of the operative part of the decision, namely the High Court of Cassation and Justice and other courts, as well as the Public Ministry. – The Prosecutor’s Office attached to the High Court of Cassation and Justice and its subordinate units will verify, in pending cases, the extent of a violation of the provisions on material competence and the quality of the person of the criminal investigation body, and will order the appropriate legal measures ”.

As noted above, these decisions have raised specific issues regarding:

– the composition of the Panels of 5 judges at the level of the High Court of Cassation and Justice;

– when establishing specialized panels in the field of corruption offenses at the level of the High Court of Cassation and Justice;

– implementation of the technical supervision mandate;

– within the competence of the Public Ministry – the Prosecutor’s Office attached to the High Court of Cassation and Justice to conclude collaboration protocols with the Romanian Intelligence Service.

Therefore, none of these decisions was aimed at creating impunity for acts of serious fraud which would harm the financial interests of the Union or corruption, nor would it remove criminal liability for such offenses.

We emphasize that, according to Article 147 paragraph (4) of the Constitution, the decisions of the Constitutional Court are and remain generally binding.

Moreover, the CJEU also recognizes, in its Judgment of 21 December 2021, the binding nature of the decisions of the Constitutional Court. However, the conclusions of the CJEU ruling that the effects of the principle of the rule of law on the rule of law are binding on all bodies of a Member State, without internal provisions, including those of a constitutional nature, preventing national courts from ex officio, any national regulation or practice contrary to a provision of EU law, entails a revision of the existing Constitution. In practical terms, the effects of this Decision can occur only after the revision of the Constitution in force, which, however, can not be done by law, but exclusively at the initiative of certain subjects of law, in compliance with the procedure and under the conditions provided in the Romanian Constitution.

External Relations, Press Relations and Protocol Department

above photo: I say Photos/ Octav Ganea

Read also: EU Court of Justice, decision with major impact: National judges may not apply the decisions of the Constitutional Courts that oppose EU law / Judgment, taken in the context of the sovereignist tendencies of Hungary, Poland and Romania / The decision has a direct impact on Udrea and Valcov cases

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