17 November 2021

A Tale of Primacy, part III

Game of Courts

On 18 May 2021, the CJEU issued a judgment on several requests for preliminary rulings by Romanian national courts, regarding the impact of EU law on Romanian laws on the judiciary and the value of the Decision 2006/928 of the European Commission establishing a mechanism for cooperation and verification of progress in Romania to address specific benchmarks in the areas of judicial reform and the fight against corruption, by reference to national law. The European Court provided a framework to national judges in respect of the primacy of EU law.

On 8 June 2021, the Romanian Constitutional Court gave a decision in which it practically rendered the ECJ Judgment devoid of any effect. In previous posts (here and here) Elena-Simina Tănăsescu and I discussed the two cases and their potential outcome on national courts.

The third act, but not the end, of this „game of Courts” came on 9 November 2021, with a letter addressed by the Romanian Constitutional Court, under the signature of its president, to the acting minister of justice, as a response to a request to assist the ministry in preparing a „reply to Mr. Didier Reynders on the issue of the principle of priority for the application of European law in the light of the Constitutional Court Decision no. 390 of 8 June 2021”.

The letter mainly reiterates the ideas expressed in the Decision 390/2021, with few clarifications and even fewer relevant arguments to the actual matter under discussion, i.e. the flagrant contradiction between the mentioned decision and the fundamental principles of EU law (as stated in the letter addressed by Commissioner Reynders).

I will not comment again on the arguments, already developed by the Constitutional Court in its decision, but I will try to emphasize, through relevant quotes, the disregard of the rule of law requirements stated in the CJEU judgment as well as the absence of the capacity of a true dialogue with the European Court.

The CJEU’s position

The CJEU had as a starting point, in assessing the matter of the nature of the Decision 2006/928 of the Commission and of the reports issued thereof, the principle of the primacy of the EU law:

”It is important to note that, under Article 2 of the Act of Accession, the acts adopted by the EU institutions before accession, which include Decision 2006/928, are to be binding on Romania from the date of its accession to the European Union and, in accordance with Article 2(3) of the Treaty of Accession, are to remain in force until they are repealed.” (para. 163).

Also, the Court emphasized the binding nature of Decision 2006/928 on Romania and particularly the obligation, set forth in this Decision,  to address the benchmarks (independence of the judiciary and fight against corruption) and to report yearly the progress made.   (paras. 167 and 168).

The CJEU reiterated that

”[A]ccording to settled case-law of the Court, it follows from the principle of sincere cooperation, laid down in Article 4(3) TEU, that the Member States are obliged to take all the measures necessary to guarantee the application and effectiveness of EU law and to eliminate the unlawful consequences of a breach of that law, and that such an obligation is owed, within the sphere of its competence, by every organ of the Member State concerned” (para 176).

Applying these principles to the particular case, the Court held that

”In order to comply with the benchmarks set out in the Annex to Decision 2006/928, Romania must take due account of the requirements and recommendations formulated in the reports drawn up by the Commission under that decision. In particular, Romania cannot adopt or maintain measures in the areas covered by the benchmarks which could jeopardise the result prescribed by those requirements and recommendations.” (para. 177).

Therefore, besides the general obligation, resulted from the principle of sincere cooperation, to take the necessary measures related to the benchmarks set forth in the binding Decision 2006/928, Romania also has the obligation NOT to adopt measures that could affect the progress envisaged by the Commission’s recommendations. This is exactly what happened with the adoption of the so-called “reforms of the judiciary”, including the establishment of the SIIJ.

The RCC’s response

In response to the CJEU, the Romanian Constitutional Court (RCC), in both the Decision 390/2021 and in the recent Letter of the president, firstly explained its own position on the matter of who is obliged by the Commission’s Decision:

“The CJEU, declaring the binding nature of Decision 2006/928 of the European Commission, limited its effects from a twofold perspective: on the one hand, it has established that the obligations resulting from the decision fall on the Romanian authorities responsible for working institutionally with the European Commission (…)[T]he obligations of the European Commission’s prior decision cannot be imposed on the courts, which are not empowered to cooperate with a political institution of the European Union. (…) those obligations cannot, let alone, concern the Constitutional Court.”

To the statement of the CJEU that ”where the Commission expresses doubts, in such a report, as to whether a national measure is compatible with one of the benchmarks, it is for Romania to cooperate in good faith with the Commission with a view to overcoming the difficulties encountered with regard to meeting the benchmarks, while at the same time fully complying with those benchmarks and the provisions of the Treaties”, the RCC replies that

The CVM reports, drawn up on the basis of Decision 2006/928, by virtue of their content and effects, as established by the judgment of 18 May 2021 in the C.J.U.E., do not constitute rules of European law which the court should apply as a matter of priority, disregarding the national rule. In other words, Article 148(2) of the Constitution cannot be incident, because the CVM reports lack the character of binding European law.”

To the requirement, deduced by the CJEU, that the State ”will take due account of the reports drawn up by the Commission based on Decision 2006/928, especially of the recommendations formulated in the mentioned reports”, the RCC replies that

”the CVM reports lack the character of binding European law. Therefore, the national judge cannot be placed in a position to decide on the priority of application of recommendations to the detriment of national legislation. (…) CVM reports (…) do not contain legal rules, so they are not likely to conflict with national law.”

In its judgment (para.189), the CJEU enounced a well-established principle: ”The very existence of effective judicial review designed to ensure compliance with EU law is of the essence of the rule of law” and the RCC answers that:

“When finding the constitutionality of the contested provisions of Law No 303/2004, the Court, in its Decision No 390/2021, took into account the requirements of the rule of law, also set out in the judgment of the Court of Justice of 18 May 2021, stating that this principle, enshrined in Article 1(3) of the Constitution, entails legal certainty, the same legal certainty/stability invoked in Mr. Didier Reynders’ letter (…). In so far as some national courts, in cases of the same nature, apply certain domestic provisions, considering them to be in conformity with European law, while others disapply the same provisions, since they consider them to be contrary to European law, the standard of predictability of the rule would be greatly affected, which would lead to serious legal uncertainty and, implicitly, infringement of the principle of the rule of law.”

Finally, to the ruling of the CJEU from para. 7 of the operative part of its judgment that ”the principle of the primacy of EU law must be interpreted as precluding legislation of a Member State having constitutional status, as interpreted by the constitutional court of that Member State, according to which a lower court is not permitted to disapply of its own motion a national provision falling within the scope of Decision 2006/928, which it considers, in the light of a judgment of the Court, to be contrary to that decision (…)”, the Romanian Constitutional Court replies, in the letter of November 2021:

”We are convinced in principle that a judgment of the CJEU and a decision of a constitutional court cannot be viewed in contrast, but in a relationship of complementarity. (…) The national judge cannot be placed in a position to decide on the priority application of recommendations to the detriment of national legislation since the normative hypothesis of Article 148 of the Constitution, which allows it, cannot find its application/incidence in the case of CVM reports. (…) If the SIIJ is to be abolished, this can only be done by a law adopted by the Parliament.”

By this statement, the RCC disregards the core of the CJEU judgment on primacy of EU law, most particularly on the matter of the nature of the Decision 2006/928 as European law and indirectly prohibits (although it has no jurisdiction to do so) the national courts to apply the European Court’s judgment. Thus, the RCC, despite having previously declared unconstitutional some of the provisions of the legislation that established the SIIJ, with some positive effects regarding the potential threat to the rule of law (the SIIJ cannot withdraw anymore the appeals previously declared by the anticorruption directorate),  indirectly upholds the legislation that, according to the CJEU, jeopardises the progress made by Romania in meeting the benchmarks set by the Decision 2006/928 of the European Commission.

Disciplinary actions

The RCC’s decision had as a consequence the initiation of disciplinary actions against judges who started to apply the CJEU judgment and tried to disapply the problematic national law provisions on the SIIJ. The case of Cosmin Stancu, judge at the Pitesti Court of Appeal is pending at the disciplinary section of the Superior Council of Magistracy. It is worth mentioning that, following the filing of the disciplinary action, judge Stancu changed his solution on the primacy of the EU law to a completely opposite one in two other cases. Meanwhile, new preliminary ruling requests are formulated by other courts in order to clarify what judges should do facing such a decision of the Constitutional Court (see a pertinent analysis here).


Is this only a game of power or the start of an actual war of judges, following the Polish example? The 2021 CVM Report on Romania mentioned the CJEU judgment and recalled that „it is essential that the judgment is duly reflected in the new legislation to be adopted”, in line with the Court’s statement that a Member State cannot amend its legislation, particularly as regards the organisation of justice, in such a way as to bring about a reduction in the protection of the value of the rule of law. However, until the Parliament will bring the legislation in line with these requirements (and the recent developments in Romanian politics lead rather to the opposite direction), the national courts must be guaranteed the right to disapply contrary provisions of national law, especially those on the SIIJ, which were heavily criticised by European fora (Venice Commission, European Commission, GRECO).    

To conclude, I quote the President of the Court of Justice, Koen Lenaerts, who recently pointed out that “while the EU does not impose any particular model on the judicial systems of the Member States, it does lay down red lines. Respect for those red lines and for the rule of law in general is the foundation for mutual trust. The European project – and the solidarity among Member States that this project entails – depends on that trust.

The Court of Justice has been entrusted by the Member States with the task of deciding what the law is at EU level. That is why all subjects of EU law, including the Member States and in particular their courts, must comply, immediately and in full, with judgments of the Court of Justice, thereby upholding the EU rule of law and the equality of Member States before that law.”

SUGGESTED CITATION  Selejan-Gutan, Bianca: A Tale of Primacy, part III: Game of Courts, VerfBlog, 2021/11/17, https://verfassungsblog.de/a-tale-of-primacy-part-iii/, DOI: 10.17176/20211117-202225-0.

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