Dragoș Călin (Judge at the Bucharest Court of Appeal and co-president of the Romanian Judges' Forum Association)
1. Some decisions of the Constitutional Court of Romania and the requests for preliminary ruling filed by the courts in Romania
In Romania, the decisions of the Constitutional Court (CCR) have been the subject of endless public discussion in recent years.
Most recently, due to the fact that, according to a press release issued at the beginning of June by the National Anticorruption Directorate, the public opinion found out that, in a number of 801 criminal files regarding the offence of abuse of office, the solution of discontinuance of proceedings was ordered, as an effect of CCR Decision no. 405/2016, according to which, when establishing that the offence of abuse of office was committed, the judicial bodies must take into account only the infringement of the normative prescriptions of the law, and not also the infringement of certain obligations provided by Government decisions or other infra-legal rules. The value of the damage established during the criminal investigation, which has remained unrecovered, according to the Romanian prosecutors, amounts to RON 1,380,564,195, EUR 118,467,830 and USD 25,636,611.
In fact, the normative content of the offence of abuse of office was reconsidered by several CCR decisions. For example, by Decision no. 392/2017, the legislator was requested to regulate a value threshold of the damage (financial) and the intensity of the damage caused to the right or legitimate interest and resulting from the deed committed. The CCR invoked the Report on the Relationship between Political and Criminal Ministerial Responsibility, adopted at the 94th Plenary Session of the Venice Commission of 11 March 2013, but there are indications of an incorrect reception of recommendations. The Spokesperson of the Venice Commission, Mr. Panos Kakaviatos, when answering to a request for clarification of some key issues, at the initiative of a Romanian journalist, showed that “The report on the relationship between political and criminal ministerial responsibility refers, according to its title, only to the situation of ministers; (…) The Venice Commission considers that national criminal provisions on abuse of office, excess of authority and other similar expressions should be interpreted narrowly and applied with a high threshold, so that they may only be invoked in cases where the offence is of a serious nature, such as, for example, serious offences against the national democratic processes, infringement of fundamental rights, violation of the impartiality of public administration etc. (par. 102). Therefore, the nature of the deed is decisive, and the threshold to which it refers is by no means a financial one. Moreover, this threshold applies, of course, only to the general rules of the criminal law on abuse of office or excess of authority, and not to other offences such as corruption, money laundering or breach of trust”.
In a country with endemic corruption, which results from all reports of relevant international organizations, by Decision no. 91/2018, CCR expressly ruled that corruption offencescannot be qualified as a threat to national security. The decision in question is part of a long series of similar solutions, including Decision no. 26/2019, which established the existence of a legal conflict of constitutional nature between the Public Ministry – The Prosecutor’s Office attached to the High Court of Cassation and Justice and the Romanian Parliament, on the one hand, and the High Court of Cassation and Justice (HCCJ) and the other courts, on the other hand, generated by the conclusion, between the Public Ministry – The Prosecutor’s Office attached to the High Court of Cassation and Justice and the Romanian Intelligence Service, of the Protocol of 8 December 2016, regarding only the provisions of Art.6 par. (1), Art.7 par. (1) and Art. 9, and the improper exercise of parliamentary control on the activity of the Romanian Intelligence Service. The decision was noted in the doctrine as creating a new constitutional concept, “the legal paradigm”, defined as “a unitary set of rules and concepts established and accepted in legal thinking”.
This type of decisions has led to the exclusion of numerous pieces of evidence in criminal cases pending before the courts and to the acquittal of defendants, especially in trials of corruption offenses.
A court did not accept such interpretation (the Bihor Tribunal), making a preliminary referral to the Court of Justice of the European Union in the pending case Procuror DNA – Serviciul Teritorial Oradea (C-379/19). Among other things, the court asks whether “The principle of the independence of judges, established by the second subparagraph of Article 19 (1) of TEU and by Art. 47 of the Charter of Fundamental Rights of the European Union (…) opposes the substitution of their competences by the decisions of the Constitutional Court (Decision no. 51/2016, Decision no. 302/2017 and Decision no. 26/2019), with the consequence of the lack of predictability of the criminal trial (retroactive application) and the impossibility of interpreting and applying the law to the specific cause? Does EU law oppose the existence of an internal rule governing disciplinary liability for the magistrate who removed from application the decision of the Constitutional Court, in the context of the question asked?”. The court’s dilemma started from “its role in the administration of justice, in relation to the role of CCR, which, according to Art. 146 of the Constitution, is that of verifying the conformity of laws with the fundamental law, and not of interpreting and applying laws, especially not of establishing legal rules that apply retroactively, with the possible effect of destabilization and lack of predictability of the criminal trial.”
But the most sensitive recent decisions of CCR were delivered in the procedure of the legal conflict of constitutional nature. Among other things,the CCR Decision no. 358/2018 forced the Romanian President to dismiss the Chief Prosecutor of the National Anticorruption Directorate at that time, Mrs. Laura Codruța Kövesi. The Romanian press speculated that the deliberations took place in a CCR toilet. In the case Kövesi v. Romania (application no. 3594/19), the European Court of Human Rights held, unanimously, on May 5, 2020, that there had been a violation of Article 6 § 1 (right to a fair trial) of the European Convention on Human Rights regarding the former anti-corruption directorate chief prosecutor, now the first European Public Prosecutor. Regarding Article 6, ECtHR noted that “is not convinced that the applicant had an available domestic remedy for effectively attacking in court what she really intended to challenge, namely the reasons of her removal from the position of chief prosecutor of the DNA by the presidential decree of 9 July 2018” in accordance with the Decision of the Constitutional Court No 358/2018 (para.154). In fact, all possibility of judicial review was limited by the CCR to the formal review of the removal decree, while any examination of the appropriateness of the reasons, the relevance of the alleged facts on which the removal had been based or the fulfilment of the legal conditions for its validity, especially the endorsement of the proposal of the Minister of Justice by the SCM in accordance with Article 54(4) of Law no. 303/2004 was specifically excluded.
The CCR Decision no. 685/2018, by a majority of votes, upon the notification of the Prime Minister of the Romanian Government, in the context in which the former president of the ruling party, who was finally convicted in 2019 to 3 years and 6 months of imprisonment with execution, Nicolae Liviu Dragnea, was tried for committing an offence of corruption and had just challenged in court the manner of appointing the panel that was trying him at the High Court of Cassation and Justice, established the existence of a legal conflict of a constitutional nature between the Parliament and the High Court of Cassation and Justice, generated by the decisions of the Managing Board of the High Court of Cassation and Justice, starting with the decision no. 3/2014, by which only 4 of the 5 members of the Panels of 5 judges were appointed by lot, contrary to the provisions of Art. 32 of Law no. 304/2004 regarding judicial organization.
First, it must be shown that Art. 32 seemed to include the president and the vice presidents in the draw, which was in total contradiction with the provisions of Art. 33, which categorically stated that the president of the court and, in his/her absence, the vice-presidents, run the Panels of 5 judges as of right. Under these circumstances, the Managing Board of the High Court of Cassation and Justice, finding this fact, and that the provisions of Art. 33 of Law no. 304/2004 made void the provisions of Art.32, and the provisions of Art.32 made void the provisions of Art.33 of Law no.304/2004, had to take such organizational measures as to fulfil the two contradictory articles (Art.32 and Art.33) of Law no.304/2004, so that they can make sense, be applicable and not block the judicial activity of the Panels of 5 judges. The interpretation given by the Managing Board of the HCCJ was not contested by any concerned person in approximately 4 years, being also accepted by the Supreme Court judges. If the legal rules had been clear and precise, it would not have been necessary to take such measures.
CCR established that the interpretation given by the High Court of Cassation and Justice amended, by means of an administrative act, a law adopted by the Parliament, “which shows an opposition to the legislative policy. It results that, in these circumstances, the Managing Board of the High Court of Cassation and Justice conferred to itself a competence that was related to the judicial function of the supreme court, a function that is carried out through the court panels, the only ones entitled to decide on their legal composition. Thus, the Managing Board of the High Court of Cassation and Justice, by its administrative practice, unduly influenced the judicial practice of the 5-judge Panels, regarding the aspect of their legal composition, since the 5-judge Panels tacitly acquiesced to an illegal composition, violating the Law no. 304/2004 themselve, starting from 1 February 2014 and until present.” (par. 175)
As a result of the CCR decision, in two of the cases in which the composition of the five-judge court panel had to be replaced, by drawing lots, the High Court of Cassation and Justice notified the Court of Justice of the European Union [Euro Box Promotion and Others (C-357/19), respectively Asociaţia Forumul Judecătorilor din România (C-547/19)],asking whether the provisions of Art. 19 par. (1) of the Treaty on European Union “must be interpreted as opposing the adoption of a decision by a body outside the judiciary, the Constitutional Court of Romania, which assesses the legality of forming court panels with the consequence of creating the necessary premises for admitting extraordinary remedies against final court decisions delivered within a period of time?”.
Last but not least, the CCR Decision no. 417/2019 admitted the referral made by the President of the Chamber of Deputies and found that there was a legal conflict of a constitutional nature between the Parliament, on the one hand, and the High Court of Cassation and Justice, on the other hand, generated by the fact that the High Court of Cassation and Justice did not establish the specialized panels of judges for hearing in the first instance the offences provided by the Law no.78/2000 on preventing, discovering and sanctioning corruption deeds. It was decided that all cases pending before the High Court of Cassation and Justice and solved by it in the first instance prior to the Decision of the Managing Board of the High Court of Cassation and Justice no. 14 of 23 January 2019, to the extent that they have not become final, are to be retried by the specialized panels established according to Art. 29 par. (1) of Law no. 78/2000, as amended by Law no. 161/2003.
It should be mentioned, ab initio, that Law no. 78/2000 provided for the need to set up specialized panels only in the first instance, and not also for appeals, which are heard, per a contrario, by non-specialized panels. The rule on the HCCJ jurisdiction is that it is the highest court of judicial review, meaning that it hears appeals against criminal judgments delivered in the first instance by courts of appeal and military courts of appeal, as well as cassation appeals against final criminal judgments. It is indisputable that, in the light of Law no. 78/2000, the HCCJ functions mainly as a court of judicial review, namely the hearing of appeals (in a collegiate panel of 3 judges) was made without the restriction of setting up a specialized panel. Consequently, all judges forming panels of appeals against lower court decisions (composed of 3 judges) gain specific experience in this matter (anti-corruption cases).
The uniqueness of justice, from the perspective of the specialization of judges who administer it and, respectively, the equality before the law that they interpret and apply, mean precisely the fact that the same judges who gain professional experience in this field, in appeals (which involve a much higher complexity, since they can reform the judgment under appeal), must be considered equally competent (“specialized”) to also hear, in the same composition (of 3 judges), cases of the same nature, but regarding deeds committed by certain social-professional categories (senators, deputies and Romanian members of the European Parliament, members of the Government, CCR judges, members of the Superior Council of Magistracy, HCCJ judges and prosecutors from the Prosecutor’s Office attached to the HCCJ). However, it is difficult to accept that the HCCJ has the ability to provide all these procedural safeguards through 3-judge panels, resolving appeals in its capacity of higher court, but that the same judges forming the same panel, but for the trial on the merits, do not have the “specialization” to ensure the same procedural safeguards. The interpretation given by the Managing Board of the HCCJ was also not contested by any concerned person, being also accepted by the Supreme Court judges.
However, by a majority, CCR assessed that, by not forming panels specialized in the first instance hearing of the offences regulated by Law no. 78/2000, the HCCJ infringed the provisions of Art. 29 of Law no. 78/2000, therefore the panels that were considered competent to hear such cases were not set up according to the law, by disregarding their constitutional mission provided by Art. 126 par. (4) of the Constitution of Romania, which, in terms of the fundamental rights, is equivalent to an infringement of the provisions of Art. 21 par. (3) of the Constitution. The resulting panel was not established by law, but by the contra legem will of the judiciary, represented in this case by the HCCJ.
Both by Decision no. 685/2018, and by the CCR Decision no.417/2019, the Constitutional Court of Romania transformed the procedure of the legal conflict of a constitutional nature into a common law procedure and ruled by acting like an ordinary administrative court, given that the latter was the only one having jurisdiction to rule on the legality of administrative acts represented by the decisions of the Managing Board of the HCCJ.
In several cases regarding the specialization of judges hearing corruption cases, the High Court of Cassation and Justice referred to the Court of Justice of the European Union – Ministerul Public (C-811/19), Ministerul Public (C-840/19), Parchetul de pe lângă Înalta Curte de Casaţie şi Justiţie – Direcţia Naţională Anticorupţie (C-859/19), Parchetul de pe lângă Înalta Curte de Casaţie şi Justiţie – Direcţia Naţională Anticorupţie and Others (C-926/19), CD (C-929/19), asking whether the previously indicated rules of the European Union law ”must be interpreted as precluding the adoption of a decision by a body outside the judicial system, the Curtea Constituțională a României (Constitutional Court of Romania), which adjudicates on a procedural objection alleging that the composition of the panel seized of the case is unlawful, in the light of the principle that the judges of the Înalta Curte de Casație și Justiție (High Court of Cassation and Justice, Romania) must be specialised (not provided for in the Romanian Constitution), and which obliges a judicial body to refer cases which are at the (full-merits) appeal stage for re-examination within the first procedural cycle before the same court?”. At the time of writing, all these cases are pending.
2. Decisions of the Constitutional Court of Romania in the context of the Cooperation and Verification Mechanism imposed by the European Commission
Starting with 1 January 2007, Romania has become a Member State of the European Union. All Member States must have impartial, independent and effective judicial and administrative systems, properly equipped to fight corruption. The judicial system inherited from the communist period has been deeply reformed but, however, prior to the accession and for this purpose, by the Commission Decision 2006/928 of 13 December 2006 establishing a mechanism for cooperation and verification of the progress in Romania to address specific benchmarks in the areas of judicial reform and the fight against corruption, it was noted that the European Commission identified remaining issues, in particular in terms of the accountability and efficiency of the judicial system in Romania.
Therefore, the effectiveness of the fight against corruption and the compliance with the principle of the rule of law, as well as with the guarantee of the independence of the judiciary, fall within the scope of Decision 2006/928, being provided for by section I (3) and section I (5) of annex IX to the Act of Accession. Respect for the principle of the rule of law and the guarantee of the independence of the judiciary is part of the requirement to reform the judiciary, as established by the Law on the organization of the judiciary, the Law on the status of magistrates and the Law on the Superior Council of Magistracy, provided for in section I (3) of Annex IX to the Act of Accession, but also of the requirements regarding the fight against corruption provided n sections I (4) and (5). According to section I (7) of Annex IX to the Act of Accession, the Romanian state undertook “to develop and implement a coherent multi-annual strategy against crime, including concrete actions to reduce Romania’s status as a country of origin, transit and destination of victims of trafficking in human beings and to present annually, starting with March 2005, reliable statistics on how this criminal phenomenon is controlled”.
The CVM Report of 22 October 2019 presented by the European Commission notes that “Although the Constitutional Court rulings do not apply to closed court cases, the follow-up of the ruling on the 5-judge panels has given rise to major uncertainty. In early 2019, consideration was given to adopting an emergency ordinance, which, if adopted, could have made it possible to reopen all high-level corruption cases closed by a final High Court judgment handed down since 2014 by a 5-judge panel. Whilst domestic and international criticism of the proposal helped to prevent the adoption of such emergency ordinance, it would be important for the Romanian authorities to renounce the pursuit of the objectives of such a measure and to make clear that legislation affecting past cases is not needed, following the Constitutional Court rulings, reiterating their commitment to effectively combat corruption. The Constitutional Court rulings directly impact ongoing high-level corruption cases, entailing delays and restarts of trials, and have allowed the re-opening of several final cases, under certain conditions. The full consequences are yet to unfold. This clear knock-on on the process of justice also raised broader doubts about the sustainability of the progress made so far by Romania in the fight against corruption – all the more so when coming at the same time as amendments on the criminal code and the criminal procedure code, which did not take into account the November 2018 recommendation on the need for compatibility with EU law and international anti-corruption instruments (see also Benchmark 1 – independence of the judiciary and judicial reform).”
The effects of the Romanian Constitutional Court decisions, which do not even refer to the Cooperation and Verification Mechanism, although the constitutional court acted like an ordinary administrative court and could thus have entered under the European Commission’s monitoring, indicate that the Romanian State disregarded the anti-corruption requirements set out in sections I (4) and (5), and the fight against crime, according to section I (7) of Annex IX to the Act of Accession, given that many of the cases of high-level corruption were reopened, some of them risking the expiry of criminal liability.
Finally, two years ago, on 18 March 2018, the President of the Romanian Constitutional Court communicated to the European Commission delegation assessing the progress of Romania and Bulgaria in the field of justice that “The CCR plenary expressed, by a majority, its desire to no longer be involved in the program of the European Commission delegations in the CVM context“, in the context of reinterpreting the effects of the CVM and its recommendations.
On September 23, 2020 the Advocate General of the Court of Justice of the European Union Michal Bobek presented his conclusions in the first six cases referred to the Court of Justice by the Romanian courts regarding the rule of law (joined cases C-83/19, C-127/19, C-195/19, Asociația Forumul Judecătorilor din România and Others, case C-291/19, SO, caseC-355/19, Asociația Forumul Judecătorilor din România and Others, case C-397/19, Statul Român – Ministerul Finanţelor Publice). In essence, according to Bobek, the interim appointment of the head of the Judicial Inspection and the national norms regarding the establishment of a specific prosecutor’s office with exclusive competence for the investigation of crimes committed by judges and prosecutors, such as the Section for the Investigation of Criminal Offences in the Judiciary, are contrary to the European Union law.
Bobek proposes that the Court rule that the Decision 2006/928 establishing the Mechanism for Cooperation and Verification is an act of an EU institution, was validly adopted on the basis of the Treaty of Accession and is legally binding on Romania; however, the periodic reports established by the Commission on its basis are not legally binding, but they are to be duly taken into consideration by that Member State. The Advocate General’s approach thus departs from the point of view of the CCR.
3. Challenges and sensitive issues for the Court of Justice of the European Union
The principle of the lawful judge, the objective of which is to guarantee the independence of judicial power with respect to the executive, stems from that requirement, which must be interpreted as meaning that the composition of the court and its jurisdiction must be regulated beforehand by legal provisions. As it is apparent from the case-law of the ECtHR, the principle of the lawful judge requires compliance with the provisions governing the procedure for the appointment of judges (ECtHR, 9 July 2009, Ilatovskiy v. Russia).
In Réexamen Simpson v Council (joined cases C‑542/18 RX-II and C‑543/18 RX-II), the Court decided that “an irregularity committed during the appointment of judges within the judicial system concerned entails an infringement of the first sentence of the second paragraph of Article 47 of the Charter, particularly when that irregularity is of such a kind and of such gravity as to create a real risk that other branches of the State, in particular the executive, could exercise undue discretion undermining the integrity of the outcome of the appointment process and thus give rise to a reasonable doubt in the minds of individuals as to the independence and the impartiality of the judge or judges concerned, which is the case when what is at issue are fundamental rules forming an integral part of the establishment and functioning of that judicial system”. (para.75) It was considered that the irregularity resulted exclusively from the Council’s disregard for the public call for applications of 3 December 2013 concerning the appointment of judges to the Civil Service Tribunal “could not, therefore, by itself justify the setting aside of a judicial decision adopted by the panel of judges to which the judge appointed to the third post was assigned”. (para.79)
In the Kreil (C-285/98) case, the judgment of 11 January 2000, ECLI:EU:C:2000:2, the Court of Justice established that the European Union law prevails inclusively on the national constitutional rules. According to established case law, a Member State invoking national provisions, even of constitutional nature, cannot affect the effect of the European Union law on the territory of that state (see in this regard, in particular, the Judgment of 26 February 2013, Melloni (C‑399/11), EU:C:2013:107, section 59 and the quoted case law). Constitutional courts must provide an interpretation of the constitutional law in the light of the European Union law.
Pursuant to the principle of sincere cooperation of the Member States, under Art. 4 par. (3) of the Treaty on the European Union, the national constitutional courts, as bodies of such states, are bound to comply with the priority of the European Union law.Therefore, Article 2 and the second subparagraph of Article 19 (1) of the Treaty on the European Union could preclude the obligation of a national court to comply with the decisions of a constitutional court, in so far as the latter has ruled ultra vires, in breach of the European Union law and of the exclusive jurisdiction to interpret of the Court of Justice, but also when it ruled arbitrarily, in breach of the powers of such constitutional court, conferred by national law, in the field of application of the European Union law, infringing the principle of legal certainty.
The elements that should possibly be taken into account in this regard may be, in the case of Romania, those relating to the interpretation and application of Decision 2006/928/EC (the respect for the principle of the rule of law and the guarantee of judicial independence are part of the requirement to reform the judiciary), which could jeopardize the supremacy, unity or effectiveness of the European Union law which the national court must apply.
The Court of Justice is not in a position to censor the analysis made by the Constitutional Court of Romania, but neither to absolutely refer to it, being able to make an interpretation of the notion of “rule of law”, which is used by Art. 2 of the TEU, in relation to Art. 19 paragraph (1), the second sub-paragraph of the Treaty on the European Union, in order to establish whether, in a situation like the one in the given cases, the activity of the supreme court of a Member State can be controlled and sanctioned by the intervention (outside its constitutional and legal competences) of a body such as the Constitutional Court of Romania, which is not included in the system the courts and has no judicial powers. The arbitrary intervention of this body, in order to verify the activity of the High Court of Cassation and Justice, by exceeding its own powers, is considered, by the referring courts, as having a negative impact not only on the independence of justice, but also on the foundations of the rule of law, in the interpretation given to Art.2 of the TEU by the Court of Justice.
In the separate opinion on the CCR Decision no. 417/2019, two judges show that, “interfering with the exclusive jurisdiction of the courts, by arbitrarily applying legal provisions intended only for them and by modulating their effects according to criteria known only to it, the Constitutional Court questions the legal security and the independence of the judiciary. The legislation in force provides for ways in which the parties concerned may challenge in court both the administrative acts issued by the Managing Board of the High Court for the concrete organization of the administration of justice, and the illegal composition of the courts. The possible illegality of an act adopted by the Managing Board of the Supreme Court and concerning administrative measures, namely the illegality of an administrative act, cannot be established by resolving a legal conflict of a constitutional nature but, in accordance with the legislation in force, exclusively by administrative litigation. The exceeding of powers is equivalent to an intrusion into the scope of the judiciary, with serious repercussions on the normative development of the Romanian state.”
According to the Study no. 538/2009 on individual access to constitutional justice, the Venice Commission recommended, in order to avoid tensions and conflicts of competences between the supreme courts and the constitutional courts, that the constitutional court would not act as a “super-Supreme Court” interfering in the regular application of the law by ordinary courts and that it should only look into constitutional matters, restraining its scope ratione materiae and avoiding also its overburdening (of course, we exclude the systems that have developed constitutional complaints, and the competences of constitutional courts are very extensive, which is not the particular case of Romania). Moreover, “a Constitutional Court should not have the interpretation of ordinary law as its competence; it should be limited to interpretation of the constitution. Usually, interpretations of ordinary laws are given by a Supreme (High) Court.” – Venice Commission, CDL-AD(2009)014, Opinion on the Law on the High Constitutional Court of the Palestinian National Authority, para.25.
A constitutional court, like any other state authority, must comply with its own procedures. Under the rule of law, it is essential that the constitutional bodies decide within the limits of their legal authority and responsibility, so that the robustness of state institutions, in accordance with the Constitution, is not seriously undermined and the democratic operation of state institutions is not irreparably compromised.
In Romania, the procedure of the legal conflict of a constitutional nature is not intended to bring forward civil rights, respectively the civil rights of a certain person, nor to allow the intervention of third parties in the proceedings, with the mention that the individual appeal before the constitutional court is not regulated by law, given that the constitutional court chooses to act like an ordinary court, by exceeding its powers. Similar aspects were recently sanctioned, by the judgment delivered on 5 May 2020, in the case Kövesi v. Romania.
It will have to be determined whether or not the conditions for such a drastic option were met, given that there were no exceptional circumstances in which, for example, the HCCJ flagrantly disregarded the constitutional interpretation previously established by the CCR; in fact, the 5-judge panels acquiesced to the composition established by the Managing Board, by interpretation of the law, which was unchallenged by any party in any pending judicial case for about four years, thus creating a well-established case law. At the same time, CCR considered that ”latent pressure can be created on the panel members, which consists in the judges obeying their judicial superior or, at least, in a hesitation/unwillingness of judges to contradict them”, by inaccurately using the Judgment of the European Court of Human Rights of 22 December 2009, delivered in the case Parlov-Tkalčić versus Croatia, although the situation was completely different, and no personal interest of the president, vice-presidents or section presidents of the HCCJ in the resolution of cases by the 3 or 5-judge panels was proved, like in the Parlov-Tkalčić case, therefore possible latent pressure was excluded ab initio.
Of course, any constitutional court could invalidate a law if the case law of the ordinary courts has interpreted it in a way that is incompatible with the constitutional interpretation previously established by the constitutional court (without infringing the European Union law and the exclusive jurisdiction for interpretation of the Court of Justice, but also without infringing the powers of that constitutional court, conferred by national law, including the Constitution).But such a drastic option can be exercised only in exceptional circumstances and can hardly be reconciled with the preference for constitutional courts to stay out of positive enactment.
There are challenges and sensitive issues that the Court of Justice of the European Union will discuss in relation to a constitutional court of a Member State, at a time immediately following a visible clash, that with the German Federal Constitutional Court.
In essence, the relations of the constitutional courts of the European Union Member States with the Court of Justice can be addressed with a view to a natural cooperation, through dialogue, based on shared values, ensuring the connection between two distinct legal systems. Even if, most of the times, the Court of Justice has tended to be more permissive, so as not to contradict the constitutional courts, these “shared values” will have to be sought in the requests for preliminary rulings presented in this article because, in their absence, there can be no risk of collision, but only a simple realignment of fundamental elements for the rule of law. By protecting a true union of values, the Court of Justice will probably have to defend its foundations against any authoritarian developments in the Member States.
Picture credits: WilliamCho.