Having regard to the judgment delivered on 21 December 2021 by the Court of Justice of the European Union (CJEU) in Joined Cases C-357/19 Euro Box Promotion, C379/19 DNA- Serviciul Teritorial Oradea, C-547/19 Asociaţia «Forumul Judecătorilor din România », C-811/19 FQ and Others and C-840/19 NC, which gave rise to public debates on its impact on the Romanian Constitutional Court, we would point out the following:
By Decision No 685/2018, the Court ruled on a legal dispute of a constitutional nature concerning the unlawful composition of the 5-judge panels organised at the level of the High Court of Cassation and Justice. Having found that they were unlawfully set up, the Court established the constitutional conduct to be followed, as set out in Article 503 (2), point 1, of the Code of Civil Procedure, according to which decisions of the appeal court may be challenged by an appeal for annulment where they have been adopted by a court in breach of the rules on the composition of the court and Article 426 (d) of the Code of Criminal Procedure, under which an appeal may be lodged against final criminal judgments where the court has not been set up in accordance with the law.
By Decision No 417/2019, the Court ruled on a legal dispute of a constitutional nature concerning the failure by the High Court of Cassation and Justice to set up specialised panels to hear at first instance the offences laid down in Law No 78/2000 for the prevention, detection and punishment of acts of corruption. Finding that, contrary to the law, they had not been set up, the Court established the constitutional conduct to be followed, as set out in Article 421 (2) (b) of the Code of Criminal Procedure, according to which, where there is an absolute nullity case relating to lack of jurisdiction, the appeal court is to order the retrial of the case by the court having jurisdiction, or, as in the case under consideration, by the specialised panels.
By Decision No 51/2016, the Court found that the expression “or by other specialised bodies of the State” in the provisions of Article 142 (1) of the Code of Criminal Procedure was unconstitutional, meaning that the technical supervision mandate may be executed by the prosecutor and the criminal investigation bodies, which are judicial bodies, in accordance with Article 30 of the Code of Criminal Procedure, and by specialised police staff, provided that they have received endorsement as judicial police officers, in accordance with Article 55 (5) of the Code of Criminal Procedure.
By Decision No 26/2019, the Court ruled on a legal dispute of a constitutional nature concerning the conclusion of cooperation protocols between the Public Prosecutor’s Office attached to the High Court of Cassation and Justice and the Romanian Intelligence Service. Noting that they could not be concluded between the two public authorities, the Court established the constitutional conduct to be followed, as set out in point 3 of the operative part of the decision, namely “the High Court of Cassation and Justice and the other courts, as well as the Public Prosecutor’s Office attached to the High Court of Cassation and Justice and the subordinate units, shall verify, in pending cases, whether there has been an infringement of the provisions relating to substantive jurisdiction and according to the status of the person of the prosecution body and order the appropriate legal measures”.
As indicated above, those decisions raised specific problems concerning:
- the setting up of 5 judge-panels at the level of the High Court of Cassation and Justice;
- the setting up specialised panels on corruption offences at the level of the High Court of Cassation and Justice;
- the enforcement of the technical surveillance mandate;
- the competence of the Public Prosecutor’s Office — the Prosecutor’s Office attached to the High Court of Cassation and Justice to conclude collaboration protocols with the Romanian Intelligence Service.
Therefore, none of those decisions concerned either the creation of impunity in respect of acts constituting serious fraud offences affecting the financial interests of the European Union or corruption offences or the removal of criminal liability for those offences.
We would point out that, according to Article 147 (4) of the Constitution, the decisions of the Constitutional Court are and remain generally binding.
Moreover, in its judgment of 21 December 2021, the Court of Justice also recognised the binding nature of the decisions of the Constitutional Court. However, the conclusions of the CJEU ruling that the effects of the principle of the primacy of EU law apply to all organs of a Member State, without national provisions, including those of a constitutional nature, being capable of hindering this, and according to which national courts are obliged to disapply, of their own motion, any national legislation or practice contrary to a provision of EU law, requires revision of the Constitution in force. From a practical point of view, this judgment can only produce effects after the revision of the Constitution in force, which, however, cannot be done by operation of law, but only on the initiative of certain subjects of law, in compliance with the procedure and under the conditions laid down in the Romanian Constitution itself.
External Relations, Press and Protocol Department of the Constitutional Court