European Union law precludes the application of case law from a Member State’s constitutional court if that case law could contribute to a systemic risk of impunity in the event of damage to the Union’s financial interests, the Court of Justice of the EU (CJEU) ruled on Tuesday 21 December (Joined Cases C-357-379-547-811-840/19).
The present cases are a continuation of the judicial reform in the fight against corruption in Romania, which is being monitored under the Cooperation and Verification Mechanism (CVM) (Decision 2006/928) established in 2007 upon accession to the EU. In particular, the question relates to whether the application of the case law of the Romanian Constitutional Court on the rules of criminal procedure applicable to fraud and corruption is likely to violate Union law aimed at protecting the financial interests of the Union, the guarantee of independence of judges, and the principle of the primacy of Union law.
The Court firstly confirms its case law that the CVM mechanism is mandatory in all its elements in Romania as long as Decision 2006/928 has not been repealed (see EUROPE 12566/22). Bucharest is therefore obliged to take appropriate measures to ensure respect for the Rule of law and to fight against high-level corruption.
Protection of financial interests. The Court recalls that Member States are required to combat any damage to the EU’s financial interests by dissuasive and effective sanctions (Article 325 TFEU) and in particular to ensure that the sanctions imposed are enforced.
However, the jurisprudence of the Romanian Constitutional Court has meant that fraud and corruption cases have to be re-examined several times, thus prolonging the duration of the corresponding criminal proceedings. Furthermore, in view of national rules on statutes of limitation, the review of the cases in question could exceed the statute of limitations for the offences and prevent convicted persons from being punished for committing serious acts of fraud and/or corruption in the exercise of their functions in high positions within the Romanian State.
As a result, the Court points out, the risk of impunity would become systemic for this category of persons.
Primacy of EU law. The European judges repeatedly stressed the principle of the primacy of EU law over national law. In particular, the governments of the Member States recalled this principle in Declaration No 17 annexed to the Final Act of the Intergovernmental Conference which adopted the Treaty of Lisbon.
The judges add that the equality of Member States before the Treaties is only guaranteed when they are unable to enforce a unilateral measure (adopted later) against the Union’s legal order. In this context, the Court also notes that, in the exercise of its exclusive jurisdiction to give a definitive interpretation of Union law, it is for the Court to clarify the scope of the principle of the primacy of Union law in light of the relevant provisions of that law.
According to the Court, the effects of the principle of the primacy of Union law are binding on all the organs of a Member State, and domestic provisions, including constitutional provisions, cannot prevent this. National courts are thus obliged to leave unapplied, on their own authority, any national regulation or practice contrary to a provision of Union law which has direct effect, without having to request or wait for the prior elimination of that national regulation or practice by legislation or by any other constitutional procedure.
Furthermore, it is an inherent guarantee of the independence of national judges that they not be exposed to disciplinary proceedings or sanctions for having exercised their right to refer cases to the Court (Article 267 TFEU), which falls within their exclusive competence. Thus, in the event that a national court of general jurisdiction considers, in light of a ruling of the CJEU, that the case law of the national constitutional court is contrary to Union law, the fact that this national court leaves this case law unapplied cannot engage its disciplinary responsibility.
See the Court’s judgment (in French): https://bit.ly/3eeZuut (Original version in French by Mathieu Bion)