Lunch seminar with Dragos Calin
The Impact of the Recent Case Law of CJEU regarding Article 2 TEU on National Constitutional Values in Romania
This presentation concerns the analysis of the refusal of the Constitutional Court of Romania, and more recently, of the High Court of Cassation and Justice in Romania to apply the judgments of the Court of Justice of the European Union regarding the rule of law.
In recent years, the Constitutional Court of Romania has tried to create an internal wall for not giving effect to the application of the supremacy of European Union law, respectively the judgment of the CJEU in Joined Cases C-83/19, C-127/19, C-195/19, C-291/19, C-355/19 and C-397/19, Asociația Forumul Judecătorilor din România and Others, as regards the Constitution itself, by developing an ultra vires control and an identity control in an original way.
Although the pressure to change such an approach is omnipresent, however, the reasons of Decision no. 390/2021 have not been revised until today by the subsequent case law of the Constitutional Court of Romania, but on the contrary, in two press releases, the idea of revising the Constitution for accepting the effects of the relevant case law of the Court of Justice of the European Union in the matter was launched exclusively.
However, a series of somehow sovereigntist decisions, also including here the interpretation in its own, extensive manner, of an opinion of the Venice Commission, seems rather on the way to be abandoned, an example in this regard being the recent Decision no. 283/2023, by which the Constitutional Court of Romania restated the need to impose a threshold in the case of the offence of abuse of office.
This sovereign discourse of the Constitutional Court of Romania is now taken over by the High Court of Cassation and Justice, which is again a fiercely defender of its own Decision No 67/2022, its arguments being considered, after thorough analysis, to be contrary to the jurisdiction of the European Union by the judgment of the Court of Justice from 24 July 2023 in Case C-107/23 PPU [Lin] and by the orders of 9 January 2024 in Cases C-75/23 and C-131/23.
The new interpretative decision of the High Court of Cassation and Justice, Decision No 37/2024, which is binding erga omnes in Romania, is virtually another declaration of war against European Union law, stating that the disapplying of provisions of national law falling within the standard of protection of foreseeability of criminal law, requested by the Court of Justice of the European Union, is not compatible with Article 7 (1) of the Convention for the Protection of Human Rights and Fundamental Freedoms.
It was also considered that the national standard of protection of fundamental rights, the mitior lex (corollary of the non-retroactivity/ultra-activity of the more severe criminal law), including in relation to limitation periods for criminal liability and its interruption, gives substance to the principle of the legality of the offence and the penalty, as governed by Article 7 of the European Convention on Human Rights and Article 49 of the Charter of Fundamental Rights of the European Union, ensuring the guarantees provided for therein and a higher level of protection, of which, in accordance with the provisions of Article 53 of the Charter, national courts must apply national standards, which provide greater protection.
At the same time, the High Court of Cassation and Justice held that the obligation imposed on the courts by the judgment in Case C-107/23 PPU [Lin] has the effect of ensuring a level of protection of fundamental rights which is not equivalent or comparable to the protection afforded by Article 7 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, and that, in those circumstances, measures taken by judicial authorities are justified only as long as the application of Union law protects fundamental rights in a manner which can be considered at least equivalent to the protection afforded by the European Convention on Human Rights.
The High Court of Cassation and Justice also ruled that the systemic risk of impunity for offences against the financial interests of the European Union, in the light of which Decision No 67/2022 of the High Court of Cassation and Justice should be disapplied, according to the judgment in Case C-107/23 PPU [Lin], cannot be assessed by the courts in the absence of criteria predefined by the legislature because it means a breach of the principle of the separation of powers, and the succession of laws in time is not susceptible to different legal treatment depending on the nature of the offence, depending on whether it is an offence directed against the financial interests of the European Union or another non-political offence, any other interpretation being liable to infringe Article 7 (1) of the European Convention on Human Rights, for the lack of precision and predictability of the law.
Regarding the contribution to iCourts, knowing these realities in Romania, practically ignored by the European Commission, is essential, because the "step by step" model of destroying the independence of a judicial system can become a source of inspiration for other EU Member States.
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4922540
Meeting ID: 685 0352 1724
Passcode: 868267
Bio
DRAGOȘ CĂLIN
Judge, Bucharest Court of Appeals (since April 2009); EU Law Trainer, The National Institute of Magistracy, Bucharest (since 2006); Associate Researcher of the Institute for Legal Research of the Romanian Academy - Centre for European Legal Studies (2010-2022; 2024); Founding member and Co-President of the Romanian Judges’ Forum Association (since 2007); Director of the Romanian Judges’ Forum Review (since 2009); Vice-President of GEMME - European Group of Magistrates for Mediation (May 2010-May 2012); Founding member (2009) and Vice-President of the International Conference for Mediation and Justice (2012-2016); Member of the Association of European Magistrates for Human Rights (since 2011); Member of the Franco-Romanian Lawyers Association (since 2009); Member of the Association of Magistrates of the European Union (since 2007).
PhD in Law (University of Bucharest, Faculty of Law) - The Dialogue between Constitutional Courts and the Court of Justice of the European Union (2018). I graduated the Faculty of Law of the University of Bucharest in 1998 and the National Institute of Magistracy in 2003, the second from my series of graduates. Postgraduate studies at the Faculty of Law of the University of Bucharest (2013) and the Academy of Economic Sciences in Bucharest, Faculty of Administration and Public Management (2015).
Author of numerous books and articles (more then 200) in the field of law, published in Romania, France, United States, Portugal, Spain, Germany, Great Britain, Japan, Belgium, Italy, Czech Republic, the Netherlands, Switzerland, Poland, Bulgaria, Mongolia, Lebanon, Columbia, India, Indonesia, Armenia and Argentina, among which Limitele libertatii de exprimare. Politicieni, jurnalisti, magistrati. Comentarii si jurisprudenta, 2014; Hotararile CEDO in cauzele impotriva Romaniei. Analiza, consecinte, autoritati potential responsabile – in perioada 1994-2014 (vol. I-X), 2010-2015; Quelle justice pour la France? 31 personnalités répondent aux préoccupations des Français, Éditions l'Harmattan, Paris, 2012; Procedura trimiterii preliminare. Principii de drept al Uniunii Europene si experiente ale sistemului roman de drept, 2012; Noul Cod civil – comentarii, doctrina, jurisprudenta. Vol. II. Mosteniri si liberalitati. Obligatii, 2012; Refuzul instantelor nationale de a trimite intrebari preliminare. Jurisprudenta romaneasca, 2013; Dictionar de drepturile omului, 2013; Cooperarea judiciara in materie civila si comerciala in Uniunea Europeana, 2014; La Médiation, un chemin de paix pour la justice en Europe, Éditions l'Harmattan, Paris, (ed.), 2015; Dreptul Uniunii Europene şi tribunalele constituţionale ale statelor membre. Interviuri (ed.), 2015; Directiva – act de dreptul Uniunii Europene şi dreptul român (ed.), 2016; La mediation entre l'habitude d'avoir recours au systeme traditionnel de justice et le remboursement de l'integralite des frais de justice in New Developments in Civil and Commercial Mediation - Global Comparative Perspectives (Ius Comparatum - Global Studies in Comparative Law), eds. Carlos Esplugues and Louis Marquis, Springer, Heidelberg, 2015; La Charte des droits fondamentaux de l’Union européenne en Roumanie, in Laurence Burgorgue Larsen (ed.), La Charte des droits fondamentaux de l’Union européenne saisie par les juges en Europe, Col. Cahiers européene, IREDIES - Institut de recherche en droit international et européen de la Sorbonne, Université Paris 1 Panthéon-Sorbonne, Pedone, Paris, 2016; Dialogul dintre tribunalele constituționale și Curtea de Justiție a Uniunii Europene, 2018; 900 days of Uninterrupted Siege upon the Romanian Magistracy. A Survival Guide, 2020; Recent Controversy Regarding the Promotion of Judges in Romania: Searching for Meritocracy - International Journal for Court Administration (iacajournal.org), Volume 12, Issue 1, 2021; Constitutionalism and Politics | The Court of Justice of the European Union, ultima ratio for saving the independence of the judges in Romania – a commentary of the CJEU preliminary ruling in C‑83/19, C‑127/19, C‑195/19, C‑291/19 and C‑355/19 and C‑397/19, AFJR and others - Constitutionalism and Politics (eui.eu), in European University Institute - Constitutionalism and Politics Blog, 2021; The priority of the EU law in Romania: between reality and Fata Morgana – Official Blog of UNIO, in UNIO EU Journal Blog; Constitutional courts cannot build brick walls between the CJEU and national judges concerning the rule of law values in Article 2 TEU: RS - Kluwer Law Online, in Common Market Law Review 60(2023), Issue 3.
Courses of Specialization at the Court of Justice of the European Communities in Luxemburg (April-June 2005), CEELI Institute Prague (Building Judiciary Integrity - October-November 2007), Tribunal Superior de Justicia Madrid, Spain (September 2010), Consejo General del Poder Judicial Madrid and European Judicial Training Network (EJTN) - Espacio Judicial Europeo Social (December 2010 - October 2011). I have participated in hundreds of scientific conferences organized in Romania or other countries, as a lecturer or participant (among others, in Paris, Luxembourg, Rome, Nice, Lübeck, Budapest, Palermo, Ankara, Barcelona, Madrid, Lisbon, Trier, Sofia, Aix-en-Provence, Fontevrault, Wienn, St. Vincent de Mercuze, La Rochelle, Chisinau, The Hague, Krakow, Katowice, Ljubljana). Romania's International Rapporteur for the XIX International Congress of Comparative Law (Vienna, 2014); U.S. Department of State, IVLP Project "Rule of Law and the U.S. Judicial System" (Washington, Manchester, East Lansing, Santa Fe, 2022).
Website: www.dragoscalin.ro