² The author holds the view that the CJEU, whilst not a specialized constitutional court of the EU, has important features of a constitutional jurisdiction, including the assessment of the consistency of acts of the EU and Member States with the letter and spirit of the constituent Treaties, the general principles of EU law, the compliance with fundamental rights, and the observance of the inter-institutional balance of power. In taking this stance, the article joins the scholarly work supporting the constitutional character of the CJEU. On the constitutional features of the CJEU. See Vauchez, Antoine, Brokering EuropeEuro-Lawyers and the Making of a Transnational Polity, 19 Lse Law Society And Economy Working Papers, 8 (2013); Búrca, Grainne De, The ECJ and the international legal order: a re-evaluation, in The Worlds of European Constitutionalism, 105–150 (Joseph H.H. Weiler and Grainne De Búrca eds., 2011).Google Scholar

³ See, e.g., Spanish Constitutional Tribunal referral in Melloni, Sentence 26/2014; Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court], Case No. 2 BvR 2728/13, Order of 14 January 2014; French Conseil Consitionnel referral in Jeremy F, Decision No 2013-314P of 4 April 2013.Google Scholar

⁴ See L'obligation De Renvoi Prejudiciel À La Cour De Justice Une Obligation Sanctionnee? (Laurent Coutron ed., 2014); Kumm, Mattias, Rebel Without a Good Cause: Karlsruhe's Misguided Attempt to Draw the CJEU into a Game of “Chicken” and What the CJEU Might do About It, 15 German L. J. (2014); see also Piqani, Darinka, Supremacy Of Eu Law And The Jurisprudence Of Constitutional Reservations In Central Eastern Europe And The Western Balkans: Towards A ‘Holistic’ Constitutionalism (2010).Google Scholar

⁵ In line with Art. 267(3) TFEU and CJEU's CILFIT doctrine, Case C–283/81, CILFIT v. Ministero della Sanità, 1982 E.C.R. I-03415.Google Scholar

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¹¹ High Court, Decision of 16 March 1912.Google Scholar

¹² Constitution of Romania 1923, Art. 103.Google Scholar

¹³ Constitution of Romania 1938, Art. 75.Google Scholar

¹⁴ The 1952 Constitution made no reference to the constitutional review, whereas Article 53 of the 1965 Constitution delegated the constitutional control to the legislator, namely the Constitutional and Legal Committee of the Popular Assembly.Google Scholar

¹⁵ For a short constitutional history of Romania, see Association Pro-democracy, The Constitutional Reform in Romania, 17–22 (2008), available at http://legislatie.resurse-pentru-democratie.org/constitutie/reforma-constitutionala-in-romania.pdf.Google Scholar

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¹⁷ Constitution of Romania 1991, revised in 2003, Official Monitor Part I, No. 758 of 20 October 2003, available in English at http://www.cdep.ro/pls/dic/site.page?id=371&idl=2. Article 1(5) thereof reads, “In Romania, the observance of the Constitution, its supremacy and the laws shall be mandatory.” Art. 142(1) states, “The Constitutional Court shall be the guarantor for the supremacy of the Constitution.”Google Scholar

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²⁰ Constitution of Romania, Art. 126(3) (“The High Court of Cassation and Justice shall provide a unitary interpretation and application of the law by the other courts of law, according to its competence.”). Rules are detailed in Articles 514-18 Romanian Code of Civil Procedure, Article 471 Romanian Code of Criminal Procedure. The legal standing in the procedure is limited to the General Prosecutor's Office attached to the High Court of Cassation and Justice, acting ex officio or at the request of the Minister of Justice, the College Board of High Court of Cassation and Justice, leading boards of the courts of appeal, and the Ombudsman, which have the duty to ask the High Court of Cassation and Justice to rule on questions of law which have been solved differently by the courts. The solution and interpretation of the High Court is compulsory on all the other Courts from the day of its publication in the Official Monitor of Romania.Google Scholar

²¹ One could mention with the title of example the decriminalization of insult and calumny clash between the two courts. The decriminalization of the offences was declared unconstitutional by the CCR based on human dignity concerns by Decision No. 62/2007, Official Monitor No.104 of 12 February 2007; solution overturned by the High Court by Decision No. 8/2010, Official Monitor No. 416 of 14 June 2011. Finally, the CCR intervened again and declared the interpretation of the High Court unconstitutional, explaining at the same time that the recourse in the interest of law procedure may not be turned into a constitutionality review in Decision 206/2013, Official Monitor No. 350 of 13 June 2013.Google Scholar

²² For a comparison see the structure and function of the CCR as provided by the Constitution of Romania (note 17), Title V, Arts. 142-47 as compared to the Constitution of French Republic of 1958, Title VII, Arts. 56–63.Google Scholar

²³ Constitution of Romania, Art. 142(2)-(3).Google Scholar

²⁴ Id. at Art. 142(5); Law 47/1992.Google Scholar

²⁵ Constitution of Romania, Art. 146.Google Scholar

²⁶ Constitution of Romania, Art. 146 b). Once the constitutionality of the international treaty has been established a priori it may not be the object of an a posteriori constitutionality claim. The international treaty declared unconstitutional cannot be ratified by the Parliament or the Government.Google Scholar

²⁷ Id. at Art. 146 a).Google Scholar

²⁸ Understood as both Government Ordinances and the Emergency Ordinances, which are forms of delegated legislative acts adopted by the Government, pursuant to Article 115 of the Constitution.Google Scholar

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³⁰ Constitution of Romania, Title V, “Constitutional Court.”Google Scholar

³¹ Id. at Title III, Chapter VI ‘Judicial Authority'.Google Scholar

³² Law 47/1992, Art. 6.Google Scholar

³³ Id. at Arts. 21, 47.Google Scholar

³⁴ Constitution of Romania, Art. 147(4).Google Scholar

³⁵ Id. at Art. 147(1). In addition, according to Article 147(3), where an international treaty is found incompatible with the Constitution it cannot be ratified by the Parliament, unless the Constitution is revised. At the same time, the international treaty may not be subject to an a posteriori constitutional review once its constitutionality is confirmed a priori by the CCR.Google Scholar

³⁶ Id. at Art. 147 (2).Google Scholar

³⁷ Id. at Art. 11(2) (“The treaties ratified by the Parliament, pursuant to the legal provisions, are part of the national law.”).Google Scholar

³⁸ MacCormick, Niel, Beyond the Sovereign State, 56 Mod. L. Rev. I-18 (1993).Google Scholar

³⁹ Constitution of Romania, Art. 20(2) (“Where any inconsistencies exist between the covenants and treaties on the fundamental human rights Romania is a party to, and the national laws, the international regulations shall have priority ['prioritate'], unless the Constitution or national laws comprise more favorable provisions.”).Google Scholar

⁴⁰ Constitution of Romania, Title VI: Euro-Atlantic Integration, Art. 148 “Integration into the European Union.”Google Scholar

⁴¹ Witte, Bruno de, Direct Effect, Primacy and the Nature of the Legal Order, in the Evolution of Eu Law 346, 353 (Paul Craig & Gráinne de Búrca eds., 2011).Google Scholar

⁴² Constitution of Romania, Art. 148 reads:Google Scholar

⁴³ Based on the textual interpretation of Articles 148(4) and 148(2), corroborated with the provisions of Title V “Constitutional Court” and Title III, Chapter VI “Judicial Authority.”Google Scholar

⁴⁴ CCR, Decision 871 of 25 June 2010, Official Monitor of Romania No. 433 of 28 June 2010.Google Scholar

⁴⁵ Id. Google Scholar

⁴⁶ Constitution of Romania, Arts. 1(5) and 142(1).Google Scholar

⁴⁷ Id. at Art. 20 (2), Art. 148 (2).Google Scholar

⁴⁸ Mancini, G. Federico & Keeling, David T., From CILFIT to ERT: the Constitutional Challenge facing the European Court, 11 Y.B. Eur. L. I-13, (1991).Google Scholar

⁴⁹ Proposal for a Council Decision on the principles, priorities, intermediate objectives and conditions contained in the accession partnership with Romania, COM (99) 0530 final, 13 October 1999, endorsed by the Council Decision 1999/852/EC of 6 December 1999, O.J. 1999 L 335/15.Google Scholar

⁵⁰ Treaty of Accession of Romania and Bulgaria to the EU, signed in Luxemburg on 25 April 2005, O.J. L157/11, 2005.Google Scholar

⁵¹ Id. at Notice on the entry in force (“Subject to the ratification procedure, the Treaty of Accession will enter into force on 1 January 2007 ….”).Google Scholar

⁵² Alter, supra note 8, at 465–66.Google Scholar

⁵³ Barrett, Kathleen, Pre-Accession Influence of the European Court of Justice: Do Constitutional Courts Use the European Court of Justice?, Georgia State University, 19–22 (2007), available at http://citation.allacademic.com//meta/p_mla_apa_research_citation/1/7/8/4/7/pages178478/p178478-2.php.Google Scholar

⁵⁴ Id. According to Barrett, the CCR referred to the CJEU case law in seven decisions and to European values in more than twenty decisions; Barrett also shows that the overall activity of the Court and its judges showed an increasing openness towards the European legal system.Google Scholar

⁵⁵ CCR, Decision no 253/2000, Official Monitor of Romania No 261 of 22 May 2000 [hereinafter CCR Decision no 253/2000].Google Scholar

⁵⁶ Council Directive 93/83/EEC of 27 September 1993 0. J. 1993 L 248.Google Scholar

⁵⁷ CCR, Decision no 253/2000.Google Scholar

⁵⁸ Id. Google Scholar

⁵⁹ Parliament of Romania, Law 154/2005 on the Ratification of the Treaty of Accession of Romania and Bulgaria to the EU signed in Luxemburg on 25 April 2005, adopted in the joint session of the Chamber of Senate and Chamber of Deputies of 17 May 2005, available at http://www.cdep.ro/pls/proiecte/upl_pck.proiect?cam=2&idp=6308. The treaty entered into force on 1 January 2007.Google Scholar

⁶⁰ CCR, Decision 408/2005, Official Journal of Romania No. 706 of 4 August 2005 [hereinafter CCR Decision 408/2005].Google Scholar

⁶¹ EC Directive 1999/62 of 17 June 1999, O.J. 1999 L 187, Article 6(2) b).Google Scholar

⁶² CCR Decision 408/2005.Google Scholar

⁶³ CCR, Decision no 513 of 20 June 2006 Official Monitor of Romania no 598 of 11 July 2006, para. 1.Google Scholar

⁶⁴ Case C–144/04, Werner Mangold v. Rüdiger Helm, 2005 E.C.R. I-09981.Google Scholar

⁶⁵ Law 51/1995 on the organization and exercise of the profession of a lawyer. The provision declared unconstitutional reads, “[t]he person who fulfills the legal requirements to access the profession of a lawyer may require that at least 5 years before the normal retirement ageGoogle Scholar

⁶⁶ Decision no 513 of 20 June 2006 Official Monitor of Romania No 598 of 11 July 2006.Google Scholar

⁶⁷ Mangold, Case C–144/04.Google Scholar

⁶⁸ Case C–28/62, Da Costa en Schaake NV and others v. Administratie der Belastingen, 1963, E.C.R. 1963.Google Scholar

⁶⁹ CCR, Decision 148/2003, Official Monitor of Romania No 317 of 12 May 2003.Google Scholar

⁷⁰ Id. Author's translation from Romanian.Google Scholar

⁷¹ The formulation may be contested from several points of view. First, the genesis of the principle of primacy may not be attributed to the Member States’ agreement; quite on the contrary, it has known a jurisprudential inception following the CJEU's Costa v. ENEL judgment. Second, the limitation of EU acquis to EU treaties and binding regulations is an overly narrow definition of the term. Third, the claim that the EU law enjoys generally an infra-constitutional position in all the Member States is false.Google Scholar

⁷² CCR, Decision 59/ 2007, Official Monitor of Romania No 98 of 08 February 2007 [hereinafter CCR Decision 59/2007].Google Scholar

⁷³ Treaty of Accession of Romania and Bulgaria to the EU, signed in Luxemburg on 25 April 2005, O.J. L157/11, 2005.Google Scholar

⁷⁴ We adapted the metaphor of Joseph H.H. Weiler, The 2013 European Constitutional Law Network Conference: “When the ECJ gets it wrong,” Florence, 18–19 November 2013.Google Scholar

⁷⁵ Constitution of Romania, Art. 135(2) on the obligation of the state to ensure a loyal market competition.Google Scholar

⁷⁶ Id. at Art. 148.Google Scholar

⁷⁷ CCR Decision 59/2007.Google Scholar

⁷⁸ Id. (dissenting Opinion of Judges Vida and Cochinescu).Google Scholar

⁷⁹ Elena Simina Tänäsescu, Tendances dans la jurisprudence de la Cour Constitutionnelle après l'adhesion de la Roumanie à l'UE, in Le Role Et La Place Des Cours Constitutionnelles Dans Le Systeme Des Authorites Publiques 159-62 (Genoveva Vrabie ed., 2010).Google Scholar

⁸⁰ CCR Decision 59/2007.Google Scholar

⁸¹ Joined Cases C–293/12 and C–594/12, Digital Rights Ireland Ltd v. Minister for Communications, Marine and Natural Resources, Minister for Justice, Equality and Law Reform, The Commissioner of the Garda Síochána, Ireland and the Attorney General, (Apr. 8, 2014), http://curia.europa.eu/.Google Scholar

⁸² Council Framework Decision 2002/584/JAI of 13 June 2002, O.J. 2002 L 190, implemented by Law 302/2004 on international judicial cooperation in criminal matters as amended by Law 224/2006, Official Monitor of Romania No. 594 of 1 July 2004.Google Scholar

⁸³ CCR, Decision 400/2007, Official Monitor of Romania No.296 of 4 May 2007.Google Scholar

⁸⁴ CCR, Decision 419/2007, Official Monitor No 330 of 16 May 2007 [hereinafter CCR Decision 419/2007].Google Scholar

⁸⁵ Id. Author's translation from Romanian.Google Scholar

⁸⁶ With a title of example, in Decision 443/2007, Official Monitor No 318 of 11 May 2007, CCR cites the EAW Framework Decision to confirm that the national implementing norms are consistent on the language of correspondence on EAW issues. As well, by Decision 583/2007 Official Monitor no 422 of 25 June 2007, the CCR sends exclusively to its first precedent Decision 400/2007 see, supra note 83, and does not engage in any further argument of EU law.Google Scholar

⁸⁷ CCR, Decision 1127/2007, Official Monitor No 2 of 03 January 2008 [hereinafter CCR Decision 1127/2007].Google Scholar

⁸⁸ For a comprehensive study on the European Arrest Warrant and the decisions of the Constitutional Courts, See Pollicino, O., The New Relationship between National and the European Courts after the Enlargement of Europe: Towards a Unitary Theory of Jurisprudential Supranational Law?, 29 Y.B. Eur. L. 65–111 (2010).Google Scholar

⁸⁹ CCR Decision 1127/2007.Google Scholar

⁹⁰ CCR Decision 419/2007.Google Scholar

⁹¹ CCR Decision 59/2007.Google Scholar

⁹² Law 343/2006, Official Monitor of Romania No. 662 of 1 August 2006, Art. 1.Google Scholar

⁹³ Letter of Formal Notice IP/07/372, Brussels, 21 March 2007. According to the letter, “[s]imilar infringement procedures regarding discriminatory car taxation had been opened against Cyprus, Poland and Hungary upon their entry to the EU.”Google Scholar

⁹⁴ Emergency Ordinance 50/2008, Official Monitor of Romania No 327 of 25.04.2008.Google Scholar

⁹⁵ Letter of Formal Notice, IP/09/1012, Brussels, 25 June 2009.Google Scholar

⁹⁶ Decision of the High Court of Cassation and Justice no. 24/2011 of 14 November 2011 regarding the uniform interpretation and application of the legal provisions regulating the pollution tax, Official Monitor No. 1 of 3 January 2012.Google Scholar

⁹⁷ See, supra note 20.Google Scholar

⁹⁸ Law 9/2012, Official Monitor of Romania No 17 of 10 January 2012.Google Scholar

⁹⁹ According to CCR database search results by keyword “Ordonanta 50/2008”, during the 2008-2011 period, 122 a posteriori exceptions of unconstitutionality were brought in front of the CCR, challenging the constitutionality of the Government Emergency Ordinance 50/2008 establishing the tax, available at http://www.ccr.ro.Google Scholar

¹⁰⁰ Joined Cases C–29/11 and C–30/11, Aurora Elena Sfichi v Direcţia Generalâ a Finanţelor Publice Suceava and Others, 2011 E.C.R. I–00059; Case C–573/10, Sergiu Alexandru Micşa v. Administraţia Finanţelor Publice Lugo, 2011 E.C.R. I–00101; Case C–441/10, loan Anghel împotriva Direcţia Generalâ a Finanţelor Publice Bacâu, 2010 E.C.R. I–00164; Case C–440/10, SC SEMTEX SRL împotriva Direcţa Generalâ a Finanţelor Publice Bacâu, 2010 E.C.R. I–00163; Case C–439/10, SC DRA SPEED SRL v. Direcţia Generalâ a Finanţelor Publice Bacâu, 2010 E.C.R. I–00162; Case C–438/10, Direcţia Generalâ a Finanţelor Publice Bacâu and Administraţia Finanţelor Publice Bacâu v. Lilia Druţu, 2011 E.C.R. I–00100; Case C–335/10, Administraţia Finanţelor Publice a Municipiului Târgu-Jiu şi Administraţia Fondului pentru Mediu v. Claudia Norica Vijulan, 2011 E.C.R. I–00099; Case C–336/10, Administraţia Finanţelor Publice a Municipiului Târgu-Jiu şi Administraţia Fondului pentru Mediu împotriva Victor Vinel Ijac, 2011 E.C.R. I–00058; Joined Cases C–136/10 and C–178/10, Daniel lonel Obreja v. Ministerul Economiei, 2011 E.C.R. I-00057; Case C–402/2009, loan Tatu v. Statul Român prin Ministerul Finanţelor şi Economiei and Others, 2011 E.C.R. I–02711; Case C–263/10, lulian Nisipeanu v. Directia Generala a Finantelor Publice Gorj, 2011 E.C.R. I–00097.Google Scholar

¹⁰¹ Cases Tatu, Case402/2009; Nisipeanu, Case C–263/10.Google Scholar

¹⁰² See, supra note 42.Google Scholar

¹⁰³ CCR, Decision 1596/2009, Official Monitor of Romania No. 37 of 18 January 2010.Google Scholar

¹⁰⁴ Id. at para. 4. The CCR seems to have adopted a similar reasoning to its Polish and Hungarian counterparts, confronted with the same case of car pollution tax conflicting with the Treaty. See PIQANI, supra note 4, at 246–47. See, for the same line of reasoning, the Constitutional Courts of Hungary and Poland, Allan F. Tatham, Central European Constitutional Courts in The Face of Eu Membership: The Influence of the German Model in Hungary And Poland 164 (2013).Google Scholar

¹⁰⁵ CCR, Decision 1596/2009, (note 103), para. 4 (Author's translation from Romanian).Google Scholar

¹⁰⁶ CCR, Decision 668/2011, Official Monitor of Romania No. 487 of 08 July 2011. [hereinafter CCR Decision No. 668/2011].Google Scholar

¹⁰⁷ See, supra note 30.Google Scholar

¹⁰⁸ According to the Constitution of Romania, “Judicial Authority” is enshrined at Title III, Chapter VI, pursuant to which justice is realized through the High Court of Cassation of Justice and other courts as established by law. The Constitutional Court enjoys a separate Title V.Google Scholar

¹⁰⁹ Decision no. 137/2010, Official Monitor of Romania no. 182 of 22 March 2010.Google Scholar

¹¹⁰ Id. Google Scholar

¹¹¹ Decision no. 1249/2010, Official Monitor of Romania 764 of 16 November 2010 (Author's translation from Romanian).Google Scholar

¹¹² CCR Decision No. 668/2011.Google Scholar

¹¹³ See, supra note 100.Google Scholar

¹¹⁴ Id. Google Scholar

¹¹⁵ Decision no. 668/2011, at point 3.Google Scholar

¹¹⁶ Id. (Author's translation from Romanian).Google Scholar

¹¹⁷ Contra CCR Decision No. 59/2007. It must be additionally stressed that in the dissenting opinion, Judge Moţoc found the matter to be precisely a constitutionality one, in view of the Article 148 accession clause, corroborated with Art. 135 (The Economy) on the obligation of the state to secure “the free trade, protection of fair competition, provision of a favorable framework in order to stimulate and capitalize every factor of production.”Google Scholar

¹¹⁸ CCR Decision No. 668/2011.Google Scholar

¹¹⁹ Joined Cases C–46/93 and C–48/93, Brasserie du Pěcheur SA v. Bundesrepublik Deutschland and The Queen v. Secretary of State for Transport, ex parte: Factortame Ltd. and others, 1996 E.C.R. I-01029.Google Scholar

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¹²¹ See supra note 96.Google Scholar

¹²² Law 299/2011, Official Monitor of Romania No 916 of 22 December 2011.Google Scholar

¹²³ Case C–119/05, Ministero dell'Industria, del Commercio e dell'Artigianato v. Lucchini SpA., 2007 E.C.R. I–06199, para. 63.Google Scholar

¹²⁴ CCR, Decision 1039/2012, Official Monitor of Romania no 61 of 20.01.2013.Google Scholar

¹²⁵ Id. at point II.Google Scholar

¹²⁶ Case C–26/62, Van Gend en Loos v. Administratie der Belastingen, 1963 E.C.R. 1.Google Scholar

¹²⁷ Case C–6/64, Costa v. ENEL, 1964 E.C.R. 1251, 1269.Google Scholar

¹²⁸ Law 298/2008 Official Monitor of Romania no 780 of 21 November 2008.Google Scholar

¹²⁹ CCR, Decision 1258/2009, Official Monitor of Romania No 798 of 23 November 2009 [hereinafter CCR Decision 1258/2009].Google Scholar

¹³⁰ Constitution of Romania, Art. 26(1) (“The public authorities shall respect and protect the intimate, family and private life.”).Google Scholar

¹³¹ Id. at Art. 28 (“Secrecy of the letters, telegrams and other postal communications, of telephone conversations, and of any other legal means of communication is inviolable.”).Google Scholar

¹³² Id. at Art. 30(1) (“Freedom of expression of thoughts, opinions, or beliefs, and freedom of any creation, by words, in writing, in pictures, by sounds or other means of communication in public are inviolable.”).Google Scholar

¹³³ Id. at Art. 23(11) (“Any person shall be presumed innocent till found guilty by a final decision of the court.”).Google Scholar

¹³⁴ CCR Decision 1258/2009. For comparison the pre-accession, see CCR Decision 253/2000.Google Scholar

¹³⁵ Id.; Cian C. Murphy, Romanian Constitutional Court, Decision No 1258 of 8 October 2009, 47 Common Mkt. L. Rev. 933-41 (2010).Google Scholar

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¹³⁷ For contrast, see the subsequent approaches of the Austrian Constitutional Court and the Irish High Court who chose both to address a reference for a preliminary ruling to the CJEU. Digital Rights Ireland, Case C–293/12.Google Scholar

¹³⁸ See in this sense the referral of the Austrian High Court of 11 June 2012 in Case C–293/12, where the Court does not limit the referral to the Charter provisions, but goes far beyond referring to the treaty articles and general principles of EU law.Google Scholar

¹³⁹ CCR Decision 253/2000, (note 55).Google Scholar

¹⁴⁰ See CCR, Decision 871/2010, Official Monitor of Romania No. 433 of 28 June 2010, para. 11.3; Decision 1.479/2011, Official Monitor of Romania No. 59 of 25 January 2012. See also the European Court And National Courts- Doctrine And Jurisprudence: Legal Change In Its Social Context 77–142 (Anne Marie Slaughter, Alec Stone Sweet & Joseph H.H. Weiler eds., 1998).Google Scholar

¹⁴¹ Case C–314/85, Foto-Frost v Hauptzollamt Lübeck-Ost, 1987 E.C.R. 04199, paras. 15–20.Google Scholar

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¹⁴⁴ See Sandru, Simona, Noul act normativ privind retinerea datelor—între constitutionalitate si europenitate, 8 Curierul Judiciar (2012). The author argues that the new legal text does not insert substantive differences in terms of human rights protection and that ultimately has adopted a border stance between constitutionality and the need to conform to EU obligations.Google Scholar

¹⁴⁵ Law 82/2012, Official Monitor of Romania No 406 of 18 June 2012.Google Scholar

¹⁴⁶ Digital Rights Ireland, Case C–293/12.Google Scholar

¹⁴⁷ CCR, Decision 440/2014, published in Official Monitor No 653 of 4 September 2014, http://www.ccr.ro/files/products/Decizie_440_2014_reviz.pdf.Google Scholar

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¹⁴⁹ Bundesverfassungsgericht [BVerFG] [Constitutional Court], 2 Mar. 2010, 1 BvR 256/08, http://www.bverfg.de/entscheidungen/rs20100302_1bvr025608.html.Google Scholar

¹⁵⁰ Constitutional Court of the Czech Republic, PI. ÚS 24/10 of 22 March 2011.Google Scholar

¹⁵¹ Supreme Administrative Court of Bulgaria, Decision No.13.627 of 11 December 2008.Google Scholar

¹⁵² CCR Decision 148/2003.Google Scholar

¹⁵³ For more details on the 2013 Constitutional reform, see Vita, Viorica, Country Report Romania, Constitutional Change through Euro Crisis Law, Section III, available at http://eurocrisislaw.eui.eu. See also: Venice Commission, Opinion 731/2013, On the Draft Law on the Review of the Constitution of Romania, available at http://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2014)010-e.Google Scholar

¹⁵⁴ Decision 80/2014, paras. 461–62, Official Monitor of Romania No 246 of 7 April 2014, available in Romanian at http://www.ccr.ro/files/products/Decizie_80_2014_opinii2.pdf.Google Scholar

¹⁵⁵ Id. at para. 458.Google Scholar

¹⁵⁶ Id. at para. 461 (“… accepting the new wording proposed at Article 148 (2) would amount to creation of necessary premises allowing the limitation of the jurisdiction of the Constitutional Court, in the sense that only the normative acts adopted in the areas not subject to the transfer of competences to the European Union would still be subject to constitutional review, whereas the normative acts […] adopted in the areas of shared competence, would be subject exclusively to the legal order of the European Union, being excluded from constitutional control. However, irrespective of the area of the legal acts, these must respect the supremacy of the Romanian Constitution, according to Article 1 para. 5 thereof.”) (Author's translation from Romanian).Google Scholar

¹⁵⁷ Id. at para. 462 (“Therefore, the Court finds that such a change would constitute a restriction of the citizens right to constitutional justice, to defend certain constitutional values, rules and principles, namely the suppression of a guarantee of these constitutional values, rules and principles, which also include the sphere of fundamental rights and freedoms.”) (Author's translation from Romanian).Google Scholar

¹⁵⁸ Constitutional Tribunal of Poland, Decision no K 18/04 of 11 May 2005.Google Scholar

¹⁵⁹ CCR Decision 80/2014 at para. 459.Google Scholar

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¹⁶¹ Case 11/70, Internationale Handelsgesellschaft mbH v Einfuhr- und Vorratsstelle für Getreide und Futtermittel, 1970 E.C.R. 1125 (hereafter Internationale Handelsgesellschaft case).Google Scholar

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¹⁶⁶ CCR Decision 148/2003.Google Scholar

¹⁶⁷ CCR Decision 80/2014.Google Scholar

¹⁶⁸ See CCR Decision 59/2007 at 124.Google Scholar

¹⁶⁹ CCR Decision 59/2007.Google Scholar

¹⁷⁰ CCR Decision 1039/2012.Google Scholar

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¹⁷³ Decision 871 of 25 June 2010, Official Journal of Romania no. 433 of 28 June 2010, para. 11.3.Google Scholar

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¹⁷⁵ On the phenomenon, see tatham, supra note 104, at 164.Google Scholar

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¹⁷⁹ Sadurski, Wojciech, “Solange, chapter 3”: Constitutional Courts in Central Europe – Democracy – European Union, European University Institute Working Papers, (2006).Google Scholar

¹⁸⁰ CCR Decision 440/2014.Google Scholar

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¹⁸⁶ Burley & Mattli, supra note 7, at 43.Google Scholar

¹⁸⁷ The pro-European attitude and the enthusiasm towards EU accession are most visible in the CCR's “inertial” Decision 59/2007. The Decision mentions repeatedly the moment of accession of 1 January 2007 and the duty to respect the EU accession treaty commitments.Google Scholar

¹⁸⁸ Alter, supra note 8, at 45–46.Google Scholar

¹⁸⁹ Id. Google Scholar

¹⁹⁰ Id. at 34.Google Scholar

¹⁹¹ Conant, supra note 9, at 1–30. The statement is endorsed by the most referrals of the Constitutional Courts. For instance, in the M. Jeremy F. referral, the French Conseil Consitutionnel formulates the questions strategically so as to clearly suggest its views on the legal issue and implicitly the preferred answer it would like to hear from the CJEU. Conseil Constitutionnel, Decision n° 2013-314P of 4 April 2013. See on this point: EUI, Centre for Judicial Cooperation, Database, M. Jeremy F., case note (“[t]he Constitutional Council included in the preliminary reference addressed to the CJEU its own interpretation of the balance between the principle of mutual recognition of criminal judgments and the right to effective remedy, seemingly in favor of higher guarantees for the right to an effective remedy, making a strategic attempt to influence the CJEU.”), available at http://judcoop.eui.eu/data/?p=data&fold=10&subfold=10.3.Google Scholar

¹⁹² Constitution of Romania, Arts. 126(1) & Art. 2(2) Law 304/2004 on judicial organization (“Justice shall be administered by the following courts: a) High Court of Cassation and Justice; b) courts of appeal; c) tribunals; d) specialized tribunals; e) military courts; f) district courts.”).Google Scholar

¹⁹³ Case C–33/07, Directia Generala de Pasapoarte Bucuresti v. Jipa, 2008 E.C.R I–0515.Google Scholar

¹⁹⁴ Id. The case concerned the free movement of citizens and the prohibition imposed on a Romanian citizen to enter the territory of another Member State following a decision for expulsion based on public security reasons.Google Scholar

¹⁹⁵ CJEU, Annual Report 2013, 109 (2013).Google Scholar

¹⁹⁶ See, supra note 154.Google Scholar

¹⁹⁷ Efrim, Dragos, Zanfir, Gabriela & Moraru, Madalina, The Hesitating Steps of the Romanian Courts Towards Judicial Dialogue on EU Law Matters, Social Science Research Network, 27 (2013), available at http://papers.ssrn.com/abstract=2261915.Google Scholar

¹⁹⁸ See, supra note 164.Google Scholar

¹⁹⁹ CCR, Decision 668/2011.Google Scholar

²⁰⁰ Weiler, Joseph H.H., In Defence of the European Status quo: Europe's constitutional Sonderweg, in European Constitutionalism Beyond The State 7-23 (Joseph H.H. Weiler & Wind Marlene eds., 2003).Google Scholar