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References for Preliminary Rulings Submitted in a priori Constitutional Review. Insights from Romania in Light of Decision No. 137 of 13 March 2019 of the Romanian Constitutional Court

Published online by Cambridge University Press:  14 May 2021

Marian Enache  and
Cristina Titirişcă
Marian Enache
Affiliation:
PhD in constitutional law, is a judge at the Constitutional Court of Romania.
Cristina Titirişcă
Affiliation:
PhD in law, is an assistant-magistrate at the Constitutional Court of Romania, associate lecturer at the Bucharest University of Economic Studies, Faculty of Administration and Public Management.
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Type
Case Notes
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European Constitutional Law Review , Volume 17 , Issue 1 , March 2021 , pp. 107 - 129
Copyright
© The Author(s), 2021. Published by Cambridge University Press on behalf of European Constitutional Law Review

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Footnotes

The authors would like to thank the editors and the anonymous reviewers for their useful comments. All websites cited were visited on 26 April 2021.

References

1 I.e. Law No. 207/2018 amending and supplementing Law No. 304/2004 on the judicial organisation, published in the Official Gazette of Romania, Part I, No. 636 of 20 July 2018, Law No. 234/2018 amending and supplementing Law No. 317/2004 on the Superior Council of the Magistracy, published in Official Gazette of Romania, Part I, No. 850 of 8 October 2018 and Law No. 242/2018 amending and supplementing Law No. 303/2004 on the status of judges and prosecutors, published in Official Gazette of Romania, Part I, No. 868 of 15 October 2018.

2 The supreme court in the hierarchy of ordinary Romanian courts.

3 The preliminary opinion of the Venice Commission on draft amendments to the Justice laws was issued on 13 July 2018, and the final opinion on 20 October 2018, subsequent to the promulgation of the new laws by the President of Romania and their publication in the Official Gazette of Romania, Part I. For details, see ⟨www.venice.coe.int/WebForms/documents/by_opinion.aspx?lang=EN⟩.

4 For details, see the Opinion of the Venice Commission, supra n.3.

5 For example, CCR Decision No. 619/2016, published in the Official Gazette of Romania, Part I, No. 6 of 4 January 2017.

6 Mehedinţi Tribunal in Case C-83/19, Asociaţia ‘Forumul Judecătorilor Din România’, Court of Appeal Piteşti in Cases C-127/19 and C-355/19, Asociaţia ‘Forumul Judecătorilor Din România’ and Asociaţia Mişcarea Pentru Apărarea Statutului Procurorilor, Bihor Tribunal in Case C-379/19, DNA-Serviciul Teritorial Oradea (pending).

7 The current Romanian Constitution was adopted in 1991 and subsequently revised in 2003. In terms of the two types of review, the 2003 revision mainly gave the People’s Advocate the possibility to refer to the Constitutional Court. When regulating the a priori and a posteriori constitutional review, the Romanian constituent legislator chose the French and the Italian model and, in 2005, in its case law, the Romanian Constitutional Court acknowledged that the Italian legislation served as a model for the latter. The a posteriori constitutional review could not have come from France, since France first established this type of review after the 2008 revision of the Constitution; it was subsequently detailed by organic law on 10 December 2009 and it became operational from 1 March 2010. For details, see, for example, F. Fabbrini, ‘Kelsen in Paris: France’s Constitutional Reform and the Introduction of A Posteriori Constitutional Review of Legislation’, 9 German Law Journal (2008) p. 1299 at p. 1312.

8 Art. 146(d) of the Constitution.

9 CCR Decisions Nos. 392 and 394 of 25 March 2008, published in the Official Gazette of Romania, Part I, No. 309 of 21 April 2008.

10 Art. 148 is entitled ‘Integration into the European Union’ and reads as follows: ‘(1) Romania’s accession to the constituent treaties of the European Union, with a view to transferring certain powers to community institutions, as well as to exercising in common with the other member states the abilities stipulated in such treaties, shall be carried out by means of a law adopted in the joint sitting of the Chamber of Deputies and the Senate, with a majority of two thirds of the number of Deputies and Senators. (2) As a result of the accession, the provisions of the constituent treaties of the European Union, as well as the other mandatory community regulations shall take precedence over the opposite provisions of the national laws, in compliance with the provisions of the accession act. (3) The provisions of paragraphs (1) and (2) shall also apply accordingly for the accession to the acts revising the constituent treaties of the European Union. (4) The Parliament, the President of Romania, the Government, and the judicial authority shall guarantee that the obligations resulting from the accession act and the provisions of paragraph (2) are implemented. (5) The Government shall send to the two Chambers of the Parliament the draft mandatory acts before they are submitted to the European Union institutions for approval’.

11 CCR Decision No. 668/2011, published in the Official Gazette of Romania, Part I, No. 487 of 8 July 2011. The case concerned the provisions of a Government Emergency Ordinance on a pollution tax charged on first registration of motor vehicles. The Romanian Constitutional Court noted that, prior to its ruling in this matter, one of the ordinary courts submitted a reference for a preliminary ruling to the Luxembourg Court, where the question concerned the provisions of the said ordinance: ECJ 7 April 2011, Case C-402/09, Ioan Tatu v Statul român prin Ministerul Finanţelor şi Economiei and Others. The Romanian Court held that the Luxembourg Court interpreted EU law (namely Art. 110 TFEU) and did not rule on the validity of the internal norm, since it is not competent to perform such an assessment. The Romanian Constitutional Court noted further that there was no violation of Art. 148 of the Constitution, because the conditions for the use a rule of EU law as a rule interposed in the rule of reference were not fulfilled; as such, although the meaning of the EU norm was established by the Luxembourg Court, the requirements of the decision have no constitutional relevance because they are related to the duty of the legislator to enact in the direction set out by the decisions of the Luxembourg Court. A failure to comply with this duty results in the application of Art. 148(2) of the Constitution.

12 See, in detail, C. Titirişcă, ‘Brief considerations on the relationship between the Romanian Constitutional Court, the Strasbourg Court and the Luxembourg Court’, 11-12 May 2018, ⟨cks.univnt.ro/cks_2018.html⟩.

13 ECJ 5 June 2018, Case C-673/16, Relu Adrian Coman and Others v Inspectoratul General pentru Imigrări and Ministerul Afacerilor Interne. See also, for example, J. Rijpma, ‘You Gotta Let Love Move: ECJ 5 June 2018, Case C-673/16, Coman, Hamilton, Accept v Inspectoratul General pentru Imigrări’, 15(2) EuConst (2019) p. 324 at p. 339.

14 CCR Decision No. 534/2018, published in the Official Gazette of Romania, Part I, No. 842 of 3 October 2018. See also ‘Dreptul la viaţă intimă familială şi privată’ [‘The right to personal and family privacy’], in M. Enache and Ş. Deaconu, Drepturile şi libertăţile fundamentale în jurisprudenţa Curţii Constituţionale [Fundamental Rights and Freedoms in the Case Law of the Constitutional Court] (C.H. Beck 2019) p. 61 at p. 95.

15 CCR Decision No. 533/2018, published in the Official Gazette of Romania, Part I, No. 673 of 2 August 2018.

16 CCR Decision No. 650/2018, published in the Official Gazette of Romania, Part I, No. 97 of 7 February 2019.

17 CCR Decision No. 137/2019, published in the Official Gazette of Romania, Part I, No. 295 of 17 April 2019.

18 The CCR mentioned ECJ 16 July 1992, Case C-83/91, Wienand Meilicke v ADV/ORGA F. A. Meyer AG, para. 22; ECJ 28 July 2016, Case C-379/15, Association France Nature Environnement v Premier ministre and Ministre de l’Écologie, du Développement durable et de l’Énergie, para. 51; ECJ 9 September 2015, Case C-160/14, João Filipe Ferreira da Silva e Brito and Others v Estado português, para. 40; ECJ 9 November 2006, Case C-205/05, Fabien Nemec v Caisse régionale d’assurance maladie du Nord-Est, para. 25 and ECJ 14 December 2006, Case C-217/05, Confederación Española de Empresarios de Estaciones de Servicio v Compañía Española de Petróleos S.A., para. 26; ECJ 23 April 2009, Joined Cases C-261/07 and C-299/07, VTB-VAB NV v Total Belgium NV (C-261/07) and Galatea BVBA v Sanoma Magazines Belgium NV (C-299/07), para. 33; ECJ 23 November 2006, Case C-238/05, Asnef-Equifax, Servicios de Información sobre Solvencia y Crédito, SL v Asociación de Usuarios de Servicios Bancarios (Ausbanc), para. 17.

19 For example, see ECJ 23 April 2009, Joined Cases C-261/07 and C-299/07, supra n. 18, para. 32 or ECJ 22 September 2016, Case C-110/15, Microsoft Mobile Sales International Oy and Others v Ministero per i beni e le attività culturali (MiBAC) and Others, para. 18 or ECJ 7 July 2011, Case C-310/10, Ministerul Justiţiei şi Libertăţilor Cetăţeneşti v Ştefan Agafiţei and Others, para. 25.

20 The CCR mentioned ECJ 7 July 2011, Case C-310/10, supra n. 19, paras. 38, 39 and 47; ECJ 27 March 2014, Case C-265/13, Emiliano Torralbo Marcos v Korota SA and Fondo de Garantía Salarial, paras. 27, 28 and 30; ECJ 15 November 2016, Case C-268/15, Fernand Ullens de Schooten v État belge, paras. 50, 55 and 53; ECJ 20 December 2017, Case C-372/16, Soha Sahyouni v Raja Mamisch, para. 28; ECJ 23 November 2017, Joined Cases C-427/16 and C-428/16, ‘CHEZ Elektro Bulgaria’ AD v Yordan Kotsev and ‘FrontEx International’ EAD v Emil Yanakiev, para. 36.

21 ECJ 19 October 2017, Case C-303/16, Solar Electric Martinique v Ministre des Finances et des Comptes publics, para. 27.

22 ECJ 27 February 2018, Case C-64/16, Associação Sindical dos Juízes Portugueses v Tribunal de Contas, paras. 38, 40 and 43.

23 ECJ 16 December 2008, Case C-210/06, Cartesio Oktató és Szolgáltató bt, paras. 55 and 56.

24 Supra n. 13.

25 ECJ 15 September 2011, Case C-197/10, Unió de Pagesos de Catalunya v Administración del Estado, paras. 17 and 18 or ECJ 6 July 2017, Case C-392/16, Marcu Dumitru v Agenţia Naţională de Administrare Fiscală (ANAF) and Direcţia Generală Regională a Finanţelor Publice Bucureşti, para. 38.

26 Supra n. 16, para. 202.

27 Published in the Official Journal of the European Union No. 439 series C of 25 November 2016.

28 The Romanian Constitutional Court obviously considered the Decision on the status of judges and prosecutors as ‘established case law’ in case of two questions proposed for referral to the Luxembourg Court, since it did not refer to the interpretation of the concept of ‘any reasonable doubt’, which would have meant invoking the CILFIT criteria, in order to justify its decision either to bring or indeed not to bring the matter before the Luxembourg Court.

29 Published in the Official Journal of the European Union L 354 of 14 December 2006. The decision was based on Arts. 37 and 38 of the Act of Accession of the Republic of Bulgaria and Romania, which empower the Commission to take appropriate measures in case of imminent risk that Romania would cause a breach in the functioning of the internal market by a failure to implement the commitments it has undertaken, respectively to take appropriate measures in case of imminent risk of serious shortcomings in Romania in the transposition, state of implementation, or application of acts adopted under Title VI of the EU Treaty and of acts adopted under Title IV of the EC Treaty.

30 The deadline was the end of October 2018.

31 See ⟨ec.europa.eu/info/policies/justice-and-fundamental-rights/upholding-rule-law/rule-law/assistance-bulgaria-and-romania-under-cvm/reports-progress-bulgaria-and-romania_en⟩.

32 Report of 13 November 2018 under the Cooperation and Verification Mechanism (CVM) established under the European Commission Decision 2006/928/EC of 13 December 2006, ⟨ec.europa.eu/info/sites/info/files/progress-report-romania-2018-com-2018-com-2018-851_en.pdf⟩.

33 CCR Decision No. 137/2019, paras. 68-69.

34 CCR Decision No. 33/2018, published in the Official Gazette of Romania, Part I, No. 146 of 15 February 2018, paras. 134-159.

35 CCR Decision No. 137/2019, para. 81.

36 The applicants mentioned ECJ 6 October 2011, Case C-302/09, ECJ 22 December 2010, Case C-304/09 and ECJ 29 March 2012, Case C-243/10.

37 Art. 147(2) of the Constitution.

38 CCR Decision No. 137/2019, para. 71.

39 Ibid., paras. 72-73.

40 According to recital (8) in the preamble to the Decision, ‘This Decision does not preclude the adoption of safeguard measures at any time on the basis of Articles 36 to 38 of the Act of Accession, if the conditions for such measures are fulfilled’.

41 CCR Decision No. 137/2019, para. 75.

42 CCR Decision No. 104/2018, published in the Official Gazette of Romania, Part I, No. 446 of 29 May 2018, para. 89.

43 CCR Decision No. 137/2019, para. 76.

44 Ibid., para. 77.

45 Ibid., para. 78.

46 Ibid., para. 99.

47 Supra n.42, para. 88, final sentence.

48 Ibid.

49 CCR Decision No. 137/2019, para. 101.

50 CCR Decision No. 80/2014, published in the Official Gazette of Romania, Part I, No. 246 of 7 April 2014, para. 456.

51 See, to the same effect, the Judgment of 11 May 2005, K 18/04, delivered by the Constitutional Tribunal of the Republic of Poland.

52 CCR Decision No. 683/2012, published in the Official Gazette of Romania, Part I, No. 479 of 12 July 2012.

53 Art. 18(1) of Law No. 47/1992, republished in the Official Gazette of Romania, Part I, No. 807 of 3 December 2010, as subsequently amended and supplemented.

54 See supra n.11.

55 For example: Mehedinţi Tribunal in Case C-83/19, Court of Appeal Piteşti in Cases C-127/19 and C-355/19, Bihor Tribunal in Case C-379/19. These cases are still pending at the time of writing.

56 CCR Decision No. 383/2011, published in the Official Gazette of Romania, Part I, No. 281 of 21 April 2011 or CCR Decision No. 1039/2012, published in the Official Gazette of Romania, Part I, No. 61 of 29 January 2013.

57 See, to that effect, Pt. 1 of ECJ 5 February 1963, Case 26/62, Van Gend en Loos v Nederlandse Administratie der Belastingen, taken in ECJ 27 March 1963, Joined Cases 28, 29 and 30/62, Da Costa and Others v Nederlandse Belastingadministratie or ECJ 24 June 1969, Case 29/68, Milch-, Fett- und Eierkontor GmbH v Hauptzollamt Saarbrücken, Pt. 3.

58 Bihor Tribunal in Case C-379/19. Translation as rendered on the official website of the ECJ, ⟨curia.europa.eu/juris/document/document.jsf?text=&docid=216395&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=3392732⟩. See also supra n.6.

59 Decision of the Second Senate [2 BvR 859/15], 5 May 2020. See ⟨www.bundesverfassungsgericht.de/SharedDocs/Entscheidungen/EN/2020/05/rs20200505_2bvr085915en.htm⟩.

60 It is to be noted that, concerning this law issue, the Luxembourg Court is expected to give its judgment in Case C-195/19, where the public hearing took place on 21 January 2020.

61 Supra n. 58.

62 Art. 146 (4) of the Constitution.

63 Supra n. 53, Art. 1(2) and (3) of Law No. 47/1992.