Who’s Afraid of the „Big Bad Court”?

The end of 2021 brought a new chapter in the saga of how should the primacy of the EU law be applied by Romanian courts. A press release of the Romanian Constitutional Court, issued on 23 December 2021, raised concerns about the conformity with the principles set forth in the case law of the CJEU regarding the primacy (more about the origins of this situation here and here). The press release, albeit a non-legal document, might have a dissuasive effect upon the judges who would be, otherwise, willing to disapply some norms of internal law, according to the latest judgment of the CJEU on the matter. In Romania, the disregard of the decisions of the Constitutional Court can be a ground for disciplinary action against judges.

What is the context in which this statement was released? On 21 December 2021, the Court of Justice of the European Union gave a preliminary ruling judgment on five joined cases brought by Romanian courts. The requests of the national judges concerned „the problem of the application of the Constitutional Court’s case law on the rules of criminal procedure applicable in cases of fraud and corruption is liable to breach the Union’s law, especially the dispositions that aim at the protection of the financial interests of the Union, the guarantee of the independence of judges and the value of the rule of law, as well as the principle of primacy of the Union’s law”.¹⁾ In short, the case law in question regards, on the one hand, the decisions of the Constitutional Court by which the gathering of evidence with the help of the intelligence service was „declared unconstitutional”, thus determining the retroactive exclusion of evidence from criminal cases and, on the other hand, the decision of the RCC by which it declared illegal the composition of the 5-judges panels of the High Court of Cassation and Justice. Nota bene: these decisions are not given in the  constitutional review of legislation, but in „solving constitutional conflicts” between authorities, at the request of political authorities (the Government, the presidents of the Chambers of Parliament) and affected high-level corruption cases in which members of the governmental majority were involved.²⁾

Two days later, just before the Christmas break, press release issued by the „Foreign Relations, Press and Protocol Department” of the Court and signed by the Court’s President, judge Valer Dorneanu gave a “response” to the European Court’s judgment but, most of all, gave a “direction” to the national judges to whom the judgment was addressed. Thus, after mentioning four of its decisions whose effects were analysed by the CJEU in its judgment, the press release ends by saying that „the conclusions of the CJEU judgment according to which the effects of the principle of the EU law primacy are binding upon all authorities of a member state, without any obstruction from a national legal disposition, including the constitutional ones, and according to which the national courts are bound to automatically disapply any national rule or practice contrary to a disposition of the EU law, require the revision of the current Constitution. In practice, the effects of this Judgment can occur only after the revision of the Constitution which cannot be made ex officio, but only at the initiative of certain legal subjects, with the observance of the procedure and in the conditions prescribed in the Constitution of Romania” [my translation].

Some pointed out that it is „only” a harmless press-release and not a binding ruling of the Constitutional Court. It is true, a press release is not an act of the Court, it does not have legal force and, although its content has not been contested by other constitutional judges, it does not reflect the official position of the whole Court.

However, up to what point such a statement is „only” a press release?

The interferences with the judiciary of the Romanian Constitutional Court were numerous and the collision between the RCC’s decisions and the outcome of specific high-level corruption cases is also a well-known situation.³⁾ Even more concerning is that many of these interferences were not the result of a constitutionality review of legislation, but of the exercise of an „ancillary” power of the Court which transforms it more and more into a political actor: solving constitutional conflicts between authorities. The quality of many of these decisions is more than questionable: in many cases, the Court acknowledged the existence of such a constitutional conflict where there were none and clearly acted ultra vires by ordering a certain conduct to an authority, in clear breach of its own independence (see an example here). Therefore, it is somehow not surprising that the RCC entered in a strange „game of courts” with the Luxembourg Court, using its case law but also press releases and letters signed by the President in an attempt to show its muscles to the national judges who would have the “audacity” to apply the primacy of the European law.

One of these demonstrations of power is the latest press release, which, it is true, is „only” a press release, but one with a twist.

Let us not forget the fact that the judge of the Pitesti Court of Appeal who dared to apply for the first time the CJEU judgment from 18 May 2021 is under disciplinary proceedings opened against him by the Judicial Inspection (an institution whose leadership, according to the same judgment of the Luxembourg Court, was appointed against the principle of the rule of law).

Let us not forget that other judges who criticized the changes of the laws of the judiciary are also under the scrutiny of the Judicial Inspection, for various accusations and that recently, one of them has been excluded from the magistracy (as the case is pending before the High Court of the Cassation and Justice, I will not make more comments about it).

Let us not forget that several associations of magistrates publicly demanded the abrogation of the provision in the law on the status of magistrates that sets forth the disciplinary offence of disregarding the decisions of the Constitutional Court, an offence which can be used as a tool of pressure against „undesirable” judges. Back in 2014, in the context of a human rights analysis, I was rhetorically asking „what happens when a Constitutional Court decision comes in conflict with a ECHR article or with the interpretation given by the ECtHR?”.⁴⁾ The same question is valid as regards the judgments of the CJEU. I also pointed out that „the jurisprudence of the Constitutional Court (…) should not be forcefully imposed on judges, under the threat of disciplinary sanctions. They must, by their authoritative power and wise reasoning, become a part of the precedential-value set of sources of law. Whether a judge has gone wrong by disregarding them, it is the task of higher courts, by the legal means of appeal, to decide”.⁵⁾

It may be not a decision but „only” a press release; nevertheless, alongside the decisions of the RCC which produced serious interferences with the judicial activity, it can be regarded as a form of pressure against judges, in order to deter them to correctly apply the CJEU judgment. Ironically, the press release signed by the RCC’s president only confirms the concerns expressed by CJEU when it said that “ „the decisions of the constitutional court are binding to the ordinary courts provided that the national law guarantees the independence of the said constitutional court especially as regards the legislative and executive powers (…). However, if the national law does not guarantee this independence, these dispositions of the European Union’s law are opposed to such a regulation or national practice (…).”⁶⁾