With a further ruling on Tuesday, the European Court of Justice (ECJ) attempted to bring Romania back on the path of the rule of law. After joining the EU in 2007, the judiciary initially took a self-confident course to fight corruption that did not spare the top floors either. And a country in which this same judiciary has been put in its place for several years with the help of “reforms”, largely operated by Liviu Dragnea, the once strong man in the socialist PSD – who then had to go to prison in 2019 for abuse of office.
The ECJ ruling was triggered by several Romanian proceedings for criminal offenses such as corruption and VAT fraud in connection with EU funds. The proceedings were supposed to result in judgments also against former parliamentarians and ministers, but somehow the Romanian Constitutional Court always got in the way. Some convictions by the Supreme Court of Cassation and Court, which is a kind of Romanian Federal Court of Justice, were unceremoniously annulled by the constitutional judges in Bucharest. Among other things, because the judgments were not made by a “panel” specializing in corruption – because of an allegedly incorrect composition of the court. In another case the question was whether wiretapping records of the Romanian secret service could be used as evidence in the corruption trials – which the constitutional judges had forbidden.
The ECJ first noted that Romania is under special EU trusteeship in matters of corruption because the country did not meet all the requirements when it joined in 2007 and was therefore subject to annual reviews. According to the ECJ, this procedure is of course binding – and has some consequences for the judicial system. The fact that a constitutional court can annul judgments for allegedly incorrectly staffed courts is in any case unacceptable if there is an abuse behind it. Or, in the words of the EU court: if this creates a “systemic risk of impunity” in the case of serious fraud and corruption. Because the intervention of the Constitutional Court would drag out the corruption proceedings so long that the allegations threatened to become statute-barred.
The Romanian courts, which want to adhere to the rule of law, are threatened with a conflict with their own constitutional court. The ECJ says the following about this: Of course, judgments by a constitutional court are usually binding on the lower instances – but only if its independence is guaranteed. This pointer also points to Poland.
In the judgment, the ECJ underpins the primacy of EU law
In addition, the EU court addresses a bizarre disciplinary regulation that threatens Romanian judges with a sanction if they fail to comply with a ruling by their constitutional court. The ECJ sees this as a violation of judicial independence – at least when every deviation and every error by a lower court is punished. Disciplinary punishments against judges should be “limited to very exceptional cases”.
The following are comments on the “primacy of Union law”, the addressees of which are not only located in Bucharest, Warsaw or Budapest. In 2020, the German Federal Constitutional Court certified that the European Central Bank and the ECJ had exceeded their powers in connection with bond purchases – although the ECJ had already waved through the purchases. The Karlsruhe court activated a national reservation of the Basic Law, which from its point of view takes precedence over EU law in rare individual cases.
The ECJ, on the other hand, assumes the unconditional primacy of EU law and is now going back very far to substantiate this. This priority had already been developed in the case law of the EEC Treaty, which came into force in 1958 – and was incorporated into the Lisbon Treaty decades later, together with an express declaration in the final act of the Intergovernmental Conference. In other words: This is not a new invention of the ECJ.
In addition, the primacy of Union law is a requirement of “equality between the Member States”. The ECJ sees this equality at risk if each state can determine, according to its own rules, where national law ends and European law begins. Only the interpretation of the ECJ is binding here. Even national constitutional law cannot change that. “The national courts are obliged to refrain from applying any national regulation or practice that contradicts a provision of Union law with direct effect,” the judge concluded.