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Court of Justice of the European Union: National judges can leave not applied constitutional court decision contrary to EU law
The supremacy of EU law imposes on national judges to leave not applied a decision of a constitutional court that is contrary to that law, without being investigated, the Court of Justice of the European Union (CJEU) shows. In its Tuesday decision, very important for justice in Romania, CJEU also shows that the the Cooperation and Verification Mechanism (CVM) is “mandatory in all its elements” for Romania.
Mention should be made that in May CJEU decided that the December 2006 EC decision establishing the Cooperation and Verification Mechanism on the progress made by Romania in the field of reform in the judicial system and fight against corruption had a mandatory character. The decision was pronounced then in the trials opened by Romanian magistrates on the most important changes made by the PSD-ALDE government in justice, like setting up the controversial department investigating magistrates, as well as the mandatory character of CVM recommendations.
The Constitutional Court interpreted the CJEU decision saying that “the priority of applying EU law should not be seen as removing and ignoring national constitutional identity.” The Romanian Constitutional Court (CCR) said that, in virtue of this constitutional identity, it is entitled to ensure the supremacy of the fundamental law in Romania.
“EU law does not oppose Constitutional Court decisions as mandatory for common law courts, on condition that the independence of that court should be guaranteed by legislative and executive powers. In exchange, this law does not agree that the disciplinary responsibility of national judges should be engaged by not observing such decisions,” CJEU decided now.
The CJEU decision was made when the High Court of Cassation addressed CJEU to clarify if the supreme court can leave CCR decisions not applied on the unlawful composition of 3 and 5 judge courts, in the conditions in which the Constitutional Court decided that 3 and 5 judge courts were not legal because not all magistrates were specialized in judging corruption cases. Following CCR decisions, the court decided to cancel some sentences and start trials from scratch in famous trials.
The Magistrates' Forum addressed CJEU to clarify whether CVM recommendations were mandatory, showing that corruption were not sanctioned by applying CCR decisions on excluding DNA-SRI evidence.
CJEU shows that CVM is mandatory in all its elements for Romania. Thus, “documents adopted before joining EU institutions are compulsory for Romania following its accession,” and “reference targets which have in view to observe the rule of law have such a mandatory character.