A provision or practice of national law under which the courts of a Member State are not entitled to examine the conformity with European Union law of a national provision which has been found to be constitutional by a judgment of the Constitutional Court of that Member State is contrary to the principle of the primacy of Union law, the Advocate General of the Court of Justice of the EU (CJEU), Anthony Collins, ruled in his opinion delivered on Thursday 20 January (Case C-430/21).
Despite a CJEU ruling in May 2021 (see EUROPE 12721/30), the Romanian Constitutional Court ruled in June that it saw no reason to comply with EU law or to deviate from previous judgments in which it had found Romanian regulations providing for the possibility of creating a section of the prosecutor’s office to investigate criminal offences within the judicial system to be constitutional. One of the reasons given for this is a question of national identity.
The current case concerns the possibility for a Romanian judge to examine the conformity with EU law of the regulation deemed constitutional by the Romanian Constitutional Court.
In his opinion, the Advocate General answers in the affirmative. In his view, the national court is necessarily bound by the interpretation of the relevant regulation by the Court of Justice of the EU.
Where a State invokes national identity as a justification for not complying with EU law, the Court will examine whether this provision constitutes a real threat to a fundamental interest of society or to the basic political and constitutional structures of the Member State. Vague, general and abstract statements do not meet this threshold, says Collins. And any claim to national identity must respect the fundamental values of the EU (Article 2 TEU) and the EU Charter of Fundamental Rights.
In this regard, the Advocate General has serious doubts as to whether the Romanian Constitutional Court will respect the essential principles of EU law as interpreted by the CJEU in May 2021.
Furthermore, Mr Collins emphasises that national courts dealing with issues of interpretation and application of EU law must be able to carry out their functions autonomously, without being subject to any hierarchical relationship or subordination to anyone else and without receiving orders or instructions from any source. These prohibited external interventions or pressures include, in his view, decisions of a national constitutional court which aim to prevent national courts from ensuring the full application of EU law.
The Advocate General concludes that the Romanian Constitutional Court has unlawfully assumed jurisdiction in breach of Article 19 TEU on effective judicial protection, the principle of primacy of Union law and the fundamental requirement of the independence of the judiciary.
See the opinion: https://bit.ly/3AjJLor (Original version in French by Mathieu Bion)