European Union law precludes a national rule whereby national courts are not entitled to examine the conformity with EU law of national legislation that has been found to be constitutional by a judgment of the Member State’s constitutional court, the Court of Justice of the EU (CJEU) ruled on Tuesday 22 February (Case C-430/21).
Despite a CJEU ruling in May 2021 (see EUROPE 12721/30), the Romanian Constitutional Court refuses to comply with EU law and to deviate from previous judgments in which it had ruled that Romanian regulations providing for the possibility of creating a section of the prosecutor’s office to investigate criminal offences within the judiciary were constitutional. One of the reasons given for this is a question of national identity.
In its judgment, which is based on the opinion of the Advocate General (see EUROPE 12873/31), the Court rules that a Romanian judge may examine the conformity with EU law of the regulation deemed constitutional by the Romanian Constitutional Court.
The European Court emphasises that compliance with the obligation of the national court to apply in full any provision of Union law having direct effect is necessary to ensure the equality of the Member States before the Treaties and is an expression of the principle of sincere cooperation. In particular, the TEU provision (Article 19) on judicial protection and Decision 2006/928 establishing a Cooperation and Verification Mechanism (CVM) on the occasion of Romania’s accession to the EU have direct effect.
The CJEU then examines the Romanian Constitutional Court’s refusal to give a preliminary judgment on the basis, inter alia, of the Romanian constitutional identity and the consideration that the CJEU had exceeded its jurisdiction. It notes that it may, under the TEU (Article 4.2), be called upon to verify that an obligation under Union law does not infringe the national identity of a Member State. However, this provision has neither the object nor the effect of authorising a national constitutional court to exclude the application of a norm of EU law on the grounds that this norm would disregard the national identity of the Member State concerned.
If a national constitutional court considers that a provision of secondary Union law disregards the obligation to respect the national identity of the country concerned, it must refer the matter to the CJEU for a request for a preliminary ruling.
See the judgment: https://aeur.eu/f/gn (Original version in French by Mathieu Bion)