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ECJ reminded of the limits of its powers by Romanian Constitutional Court

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The European Court of Justice assumes the role of supreme judge in areas where the signatory states of the European treaties have not ceded their sovereignty.

Romania/European Union – The propensity of the European Court of Justice (ECJ) to extend its prerogatives and to claim a general primacy of European Union law over national jurisdictions is increasingly coming up against the resistance of EU member states and national constitutional courts.

The European Commission has now initiated proceedings against Germany in an attempt to assert the primacy of European law after a ruling last year by the German Constitutional Court. In a case brought by Prime Minister Mateusz Morawiecki, the Polish Constitutional Tribunal will be considering the same issue in mid-July, and the judges of the Romanian Constitutional Court (CCR) have also reaffirmed the primacy of Romania’s Basic Law over EU law.

“Principle of primacy of EU law”

Last May 18, the ECJ claimed to have the power, by virtue of the principle of primacy of European law, to authorize individual judges to disobey national law if they consider it contrary to EU law. The ECJ held, inter alia, that Commission Decision 2006/928/EC of December 13, 2006, establishing a mechanism for cooperation and verification of progress in Romania to address specific benchmarks in the areas of judicial reform and the fight against corruption, “falls […] within the scope of the Treaty of Accession, because that decision is a measure adopted on the basis of the Act of Accession which has been binding on Romania since the date of its accession to the European Union,” and that

the principle of the primacy of EU law precludes national legislation with constitutional status which deprives a lower court of the right to disapply of its own motion a national provision falling within the scope of Decision 2006/928 and which is contrary to EU law.

“The Basic Law retains its superior position” 

On Tuesday, June 8, the Romanian Constitutional Court ruled by seven votes to two that

the Basic Law [the Romanian Constitution] retains its superior position (…), as Article 148 does not give priority to the application of Union law over the Romanian Constitution, so that a court does not have the power to review the conformity of a provision of a national law which has been declared constitutional by a decision of the Constitutional Court,” 

since “the obligations resulting from the decision [of December 13, 2006] are incumbent on the Romanian authorities competent to collaborate institutionally with the European Commission (paragraph 177 of the decision), as well as on the Romanian political institutions, parliament and government.” Therefore, “[these] obligations cannot be incumbent on the courts, as such state bodies are not entitled to cooperate with a political institution of the European Union.”

Consequently, the CCR ruled that

national judges cannot be put in the position of deciding on the priority application of certain recommendations to the detriment of national legislation.”

In other words, the CCR is resisting the ECJ’s push towards an EU federal superstate governed by judges…

25 NGOs call for the resignation of the seven CCR judges 

The ruling by the Romanian Constitutional Court quickly provoked passionate reactions. Twenty-five Romanian and foreign NGOs have “demanded” the resignation of the seven judges of the CCR who were in favor of the breakthrough ruling, considering that such a ruling “has turned the judicial world upside down” because “the Constitutional Court refuses to comply with the ECJ decision of May 18, 2021” and “contradicts the ECJ’s consistent jurisprudence according to which a national judge is a frontline European judge, and such a role cannot be forbidden by any authority, law, or practice.” Lawyer Monica Macovei, of the Initiative for European Democratic Culture, was quoted as saying by Monitorul Cluj: “The absolute power of the CCR over Romania has corrupted the minds of the seven CCR judges who do not accept the supremacy of the decisions of the European Court of Justice (ECJ).

Although the ECJ clearly stated that its decisions take precedence over the decisions of the CCR, after a few days the CCR places itself above the ECJ and takes the risk of leading to Romania’s withdrawal from the EU! ”

“The European Commission has been very clear on the primacy of European law”

Similar comments came from the European Commission, whose spokesman, Christian Wigand, said on Tuesday, June 22: “We will analyze this [CCR] decision in detail… The European Commission has been very clear on the primacy of European law.” His deputy, Dana Spinant, echoed:

As we have always said, and as we recalled again recently, the primacy of EU law is a fundamental pillar of the EU legal order, as is the fact that the decisions of the European Court of Justice are binding and must be enforced by national courts.