Conflict of jurisdiction between Brussels and the EU’s East getting nasty (Part 2)

Using the principle of the primacy of EU law as a pretext, the ECJ now places its own case law above member states’ constitutions.

Conflict of jurisdiction between Brussels and the EU’s East getting nasty (Part 2)

Thus, Romania is today the scene of a jurisdictional conflict between the ECJ and its Constitutional Court that is very similar to the conflict on the Brussels–Warsaw axis, although it is less talked about because the Romanian government, and in particular President Klaus Iohannis, are less radically opposed to the Eurofederalist, immigrationist and progressive line of the European elites, and Romania therefore arouses less hostility from the European Commission and Parliament.

Nevertheless, the conflict of jurisdictions between the EU and Romania was recently the occasion of a historic ruling by the ECJ, in which the judges in Luxembourg affirmed for the first time in such an open manner the primacy of their case law over the member states’ constitutions, thus risking future conflicts with the constitutional courts of major EU countries such as Germany, France, Italy or Spain. The constitutional courts of these countries all consider that the national constitution is above other sources of law, including EU law and its interpretation by the ECJ.

In the Romanian case, the jurisdictional conflict refers to a decision of the Romanian Constitutional Court (CCR), which had invalidated corruption convictions by the High Court of Cassation and Justice (HCCJ) on the grounds that the panel of judges had been formed without respecting the law (one judge had not been appointed by lot and not all judges on the panel were specialised in corruption cases). The CCR also ruled that the Romanian intelligence service’s involvement in the collection of evidence for this type of criminal case was unconstitutional.

Following this decision, judges from the HCCJ and the Bihor High Court sent preliminary questions to the ECJ, as the corruption case involved EU funds, and these judges found that the CCR decision did not allow for the application of the Cooperation and Verification Mechanism adopted in 2006 by the European Commission on the occasion of Romania’s accession to the EU. The judges who submitted the preliminary questions also challenged – in the light of the principle of independence of the judiciary mentioned in general terms in the EU Treaty in relation to the implementation of EU law – the disciplinary proceedings initiated against the magistrates who were responsible for the flaws in this corruption case.

In a ruling issued on 18 May, 2021, the ECJ attacked the Romanian judicial reforms that led to this decision of the Constitutional Court in Bucharest. As in the Polish case (see “Part 1: Warsaw demands EU treaties be complied with and refuses to pay fines imposed by the ECJ”), the ECJ considered that it could authorise any Romanian judge to disobey national law and the Constitution with regard to provisions that such a judge finds to be contrary to EU law. If this new principle, which emerged in a November 2019 ruling against Poland, were to be applied, it would lead to great legal uncertainty or even outright judicial anarchy, with each judge becoming an interpreter of the constitution in the light of his or her perception of European general principles and EU law.