Constitutional judges and European Union law: Activism versus deference in the use of the preliminary reference to the European Court of Justice

https://doi.org/10.63189/CVRL4072

1.     Introduction

The effectiveness of constitutional justice primarily depends on how constitutional courts enforce their powers in relation to other government bodies and establish their own boundaries according to the constitution and law. Within the purview of constitutional review in Romania, these limits of constitutional jurisdiction are ensured under the concept of “causes of inadmissibility,” which is characterised[1] as legal reasons that prevent the initiation or extension of the procedure of constitutional reviews of laws.

Our analysis of this topic[2] reveals that, unlike the inadmissibility cases concerning the legality of the referral, which are clearly defined by law (the subject matter and subjects of the referrals), the inadmissibility cases related to the powers of the Constitutional Court entail a wide margin of appreciation of the Court because, according to law (in both Romania[3] and other states[4]), the Constitutional Court is the only court entitled to decide on its jurisdiction. The developments in this respect have critics calling into question the constitutional judge’s assumption of the role of a legislator or an ordinary judge.[5] In Judicial activism. Pros and cons,[6] we examine this issue by focusing on the relationship between the Constitutional Court of Romania (CCR) and Romanian authorities. However, we clarify that the topic can be examined in terms of the relationships between the CCR and international courts—the European Court of Human Rights and the ECJ. In this intricate system, defining jurisdictional boundaries can create moments of both harmony and tension and have repercussions beyond national borders.[7]

Based on these premises, we explore the issue of activism versus judicial deference in the context of constitutional courts’ use of preliminary references to respond to the following questions: How active should a constitutional court be in using preliminary references while maintaining a balance between activism and deference in its relationship with state authorities, including the legislature and ordinary judges? To what extent can the powers of a constitutional court be distinguished from those of the ECJ in cases where European Union (EU) law interferes, such as explaining the avoidance of the ECJ's involvement in interpreting EU law using a preliminary reference?

 In this study, we refer to the experience of CCR and the circumstances in which the use of a preliminary reference has been questioned thus far: the exceptions of unconstitutionality (a posteriori review of the laws and government ordinances in force) and the objections of unconstitutionality (a priori review of laws before promulgation).

2. Preliminary references within the settlement of exceptions of unconstitutionality

The exception of unconstitutionality (by Article 146 d of the Constitution] provides the access of natural and legal persons to constitutional justice through courts of law or commercial arbitration. The exception of unconstitutionality can be raised directly before the constitutional court by an Advocate of the People, as well. The admissibility of the exception of unconstitutionality shall be verified in both the “judicial stage,” which begins with the invocation of the exception before the court of law or commercial arbitration and ends with a referral to the CCR, and the “constitutional contentious” stage, which is held before the CCR according to procedural rules that are similar to those of courts of law (e.g., notifying the parties and contradictory debates). A court of law notifies the CCR only when the exception satisfies the admissibility requirements laid down in Law No. 47/1992. Further, the CCR is empowered to settle the exception only if it decides that the exception is admissible. Preliminary references to the ECJ can be submitted in both stages.

Courts of law actively utilize the preliminary reference mechanism, unlike the CCR, which is rather hesitant to use it. In the almost 17 years of joining the European Union (EU), the CCR sent one preliminary reference to the ECJ. This was in a case on the exception of the unconstitutionality of Article 277 of the Civil Code, which prohibits marriage between persons of the same sex and the recognition of these marriages concluded in other states. Following the pronouncement of the ECJ Judgment in Case Coman C-673/16, the CCR issued an interpretive decision[8] establishing that the provisions of Article 277 of the Civil Code

… are constitutional in so far as they permit the granting of the right of residence on the territory of the Romanian State, under the conditions laid down in European law, to the spouses—citizens of the Member States of the European Union and/or citizens of non-member countries—of marriages between persons of the same sex concluded or contracted in a Member State of the European Union.

Even in this case, there was no unanimity in judges’ votes, and three out of eight judges in the panel formulated a separate opinion by invoking inadmissibility causes.

Hence, one of the judges[9] formulated a separate opinion regarding both the ECJ’s notification and the CCR’s final decision. The judge argued, inter alia,

Article 277 (2) of the Civil Code has nothing to do with the settlement of the case, from the point of view of the plaintiffs’ claims; so the exception of unconstitutionality regarding it had to be rejected as inadmissible. Likewise, (...) the whole exception of unconstitutionality was inadmissible, as it was up to the court of law to apply Article 277 (4) of the Civil Code (…) in accordance with Article 21 (1) of the Treaty.

Finally, the judge concluded as follows: ‘The issue has become one of interpretation and application of European law; it is no longer one of constitutionality’.

Further, the conclusion of inadmissibility on the basis of the competence of the constitutional judge versus that of the ordinary judge results from another separate opinion[10] signed by two judges, which, inter alia, states.

The exact and direct application of the above lies with the court of law, which (…) is perfectly entitled to apply the provisions of the TFEU as they are construed by the ECJ, this all the more so as the ECJ Judgment requires the “State authorities” to apply the provisions of Article 21 (1) of the TFEU in the interpretation given, and the direct application of the provisions of the TFEU, in this case, instead of the contrary provisions of the internal legislation, lies exclusively with the court of law, not with the Constitutional Court.

Based on the reasoning of the separate opinions, the plea of strict adherence to the formal rules that define the powers of the CCR with respect to those of the court of law may sound convincing. Perhaps, an ordinary judge can identify by himself a method of interpreting the law in question. However, the majority of CCR judges embraced an interpretation of competence that crossed formal boundaries and allowed a jurisdictional dialogue for the purpose of the convergent interpretation of the law. This interpretation is in the spirit of the Constitution because it serves the goal of legal certainty by achieving normative coherence in the EU. Reuniting the constitutional reviews of the CCR and ECJ entails (through the cumulative general binding effect of the acts of the two courts) the uniform application of the law for all public authorities without necessitating an appeal to the ordinary judge for other specific cases in which issues of interpretation, constitutionality, or conformity with EU law of the same legal text may arise. At the same time, such an approach represents a direct appeal to the Romanian legislature to correct the law, in accordance with Article 147 (the effects of the CCR decisions) and Article 148 (integration into the EU) and, also, for the legislator from other Member States, in accordance with their obligations laid down in the EU Treaties.

3. Preliminary references within objections of unconstitutionality

The subject matter of the objection of unconstitutionality is an abstract, a priori constitutional review of the laws after their enactment by the Parliament and before their promulgation by the President of Romania (Article 146 letter a) of the Constitution). It is a preventive review available to only certain institutional actors expressly established by the Constitution (parliamentarians, the Government, the High Court of Cassation and Justice, and the Advocate of the People).

Initially, being vested with preliminary references, the CCR rejected them considering them inadmissible and stating, ‘within the a priori constitutional review, the constitutional court cannot refer the ECJ, pursuant to Article 267 of the Treaty on the Functioning of the EU’[11] because

the a priori review does not even lato sensu entail a pending litigation, i.e., the establishment of a legal relationship, since a law that is not in force cannot lead to a litigation, unlike the hypothesis of an a posteriori constitutional review by way of exception.[12]

Recently, we noticed an implicit upturn, in the sense that the CCR considered inadmissible and rejected a request for a preliminary referral to the ECJ without invoking the incompatibility of this instrument with the a priori constitutional review.[13] On the contrary, the CCR extensively analysed the request in this respect. Further, although the conclusion was the inadmissibility of the ECJ referral, it was based on a reasoning that aimed at the constitutional relevance of the issue that would have been submitted to the ECJ. This change in perspective seems to be confirmed by the president of the CCR, who gave the following explanation:[14]

According to the case law of the CCR, it is possible to formulate a request for a preliminary ruling within the a priori constitutional review, to the extent that the European act is of interest in settling the referral of unconstitutionality. (…) The CCR considers itself competent to formulate requests for a preliminary ruling within both the a posteriori constitutional review and the a priori constitutional review.

Nevertheless, to date, the CCR has not made preliminary references within the objections of unconstitutionality. However, there are some cases in which EU law issues occur. For example, in the objection of unconstitutionality of the law transposing Directive No. 2019/1937 on whistle-blowers in public interest, the violation of Article 148 of the Constitution was invoked, inter alia, with the argument of the non-transposition/defective transposition of the directive. The CCR rejected these criticisms[15] noting that ‘it does not have the competence to verify whether all the provisions of a directive have been transposed or not, this being a matter of legislation and not of constitutional review’. Similarly, the CCR argued the following:

It does not belong to its role and jurisdiction to interpret Article 346 of the TFEU and to derive from its content the requirements resulting from the interpretation of the ECJ case law in order to be included in the analysed law. Any issues in the interpretation of the analysed text determined by the reference to Article 346 of the TFEU can be settled by the competent national courts of law, even by formulating a preliminary question according to Article 267 of the TFEU.

Certainly, it is possible to support a delimitation from the legislator and courts of law in these terms. Nevertheless, a debate on such a context will aim to respect the spirit of the Constitution (as in the Coman Case), as well as the role of the preventive nature of review through the objections of unconstitutionality. Therefore, as long as Article 148 of the Constitution requires the Parliament to fulfil the obligations resulting from the act of accession and before the CCRinvokes the non-transposition or defective transposition of a directive, a preliminary reference will clarify the directive’s meaning and the obligations of the Parliament in terms of transposition. Therefore, the preliminary reference in the a priori constitutional review seems to be a tool for the uniform interpretation of directives, facilitating the transposition process and preventing the occurrence of complicated and expensive infringement procedures that will ultimately end up before the ECJ. In this manner, bringing together the constitutional review done by the CCR and the one carried out by the ECJ entails (through the cumulative general binding effect of the acts of the two constitutional courts) the uniform application of EU law and the adoption of laws in accordance with this law. The settlement of such cases (constitutional reviews of the laws transposing directives) should certainly be achieved with increased speed to ensure that the mechanism of this dialogue does not create a delay that will, in itself, lead to the infringement procedure.

4.     Conclusions

Due to its relationships with national authorities, the CCR was accused of activism and undertaking the role of a positive legislator or court of law.[16] Similarly, due to its relationships with the ECJ, the CCR was criticised for its reluctance to use the mechanism of preliminary references.[17] Compared to the selected benchmarks, one of the reasons for the precariousness of the dialogue at this level seems to be the application of the rules of competence/causes of inadmissibility in a self-restrained manner. Case Coman[18] proved that such “barriers” can be overcome by an interpretation oriented towards the achievement of the principles and spirit of the Constitution perceived as an integrated part of a legal order based on harmonious coexistence.

To answer the questions mentioned in the Introduction, we suggest that constitutional courts should follow an active approach towards the use of preliminary references. Too much deference to the legislature can be dangerous because it will delay the examination of national laws' compatibility with EU law when it can be done before the law becomes effective. Similarly, too much deference to lower courts undermines the constitutional courts' role, because they miss the opportunity to align the legislation with EU law by appealing to the ECJ and making a constitutional interpretation. In this context, going beyond formal limits to preserve the constitution’s essence and equilibrium highlights the creative aspect of constitutional interpretation and its contribution to EU law development.

[1] Muraru, I and Constantinescu, M (1998), ‘The cases of inadmissibility in the constitutional jurisdiction’, Dreptul, 2, pp. 3-20.

[2] Toader, T and Safta, M (2016), Guide of Admissibility to the Constitutional Court of Romania, Hamangiu Publishing House, Bucharest.

[3] See Article 3 of Law No. 47/1992 on the organization and operation of the Constitutional Court, Official Gazette no. 807 of 3 December 2010.

[4] For example, Spain, Article 4 of the Organic Law 2/1979 on the Constitutional Court (https://www.tribunalconstitucional.es/es/tribunal/normativa/Normativa/LOTC-en.pdf). See also German Federal Constitutional Court—Judgment of the First Chamber of 10 June 1964, BverGE 18, 85, in Selection of decisions of the German Federal Constitutional Court, C.H. Beck Publishing House, Bucharest, p. 38.

[5] Ciobanu, VM (2019), ‘Constitutional Court—guarantor of the supremacy of the Constitution, legislative power or parliamentary expert?’, Romanian Review of Private Law, 3, pp. 72-95.

[6] Published in the Romanian Case Law Review/Revista Română de Jurisprudenţă (2022), 3, p. 407, https://openurl.ebsco.com/EPDB%3Agcd%3A7%3A10311671/detailv2?sid=ebsco%3Aplink%3Ascholar&id=ebsco%3Agcd%3A160948527&crl=f  Accesed 10 March 2024.

[7] See the recent saga of CCR-ECJ relationships—Selejan-Gutan, B (2021), “A tale of primacy, part III: Game of courts”, VerfBlog, 2021/11/17, Available at https://verfassungsblog.de/a-tale-of-primacy-part-iii/, DOI: 10.17176/20211117-202225-0. Accessed 10 March 2024.

[8] Decision No. 534/2018, Official Gazette no. 842 of 3 October 2018.

[9] Judge Mona- Maria Pivinceru, separate opinion published in the Official Gazette no. 842 of 3 October 2018.

[10] Judges Mircea-Ștefan Minea and Petre Lăzăroiu, separate opinion published in the Official Gazette no. 842 of 3 October 2018.

[11] Decision No. 650/2018, Official Gazette no. 97 of 7 February 2018, par. 202.

[12] Decision No. 533/2018, Official Gazette no. 673 of 3 August 2018.

[13] Decision No. 137/2019, Official Gazette no. 295 of 17 April 2019.

[14] Message by Mr. Marian Enache (2020), the President of the Constitutional Court, on the occasion of his participation in the Conference titled 'Evolution of the European Union Law—Dialogue between the Court of Justice of the European Union and the Constitutional Courts’,https://www.ccr.ro/mesajul-presedintelui-curtii-constitutionale-cu-ocazia-participarii-%e2%80%8bla-conferinta-evolutia-dreptului-uniunii-europene-dialogul-intre-curtea-de-justitie-a-uniunii-europene-s/, Accesed 10 March 2024.

[15] Decision No. 390/2022, Official Gazette no .746 of 25 July 2022.

[16] Ciobanu, VM cited work.

[17] Efrim, DA, Zanfir-Fortuna, G and Moraru, M (2013), “The hesitating steps of the Romanian courts towards judicial dialogue on EU Law matters”, Available at SSRN: https://ssrn.com/abstract=2261915 or http://dx.doi.org/10.2139/ssrn.2261915. Accessed 1 February 2023.

[18] C-673/16, Judgment of the Court (Grand Chamber) of 5 June 2018.Relu Adrian Coman and Others v Inspectoratul General pentru Imigrări and Ministerul Afacerilor Interne.

References

Ciobanu, VM (2009), “Constitutional Court—guarantor of the supremacy of the Constitution, legislative power or parliamentary expert?”, Romanian Review of Private Law, 3, pp. 72-95.

Efrim, DA, Zanfir-Fortuna, G and Moraru, M (2013), “The hesitating steps of the Romanian courts towards judicial dialogue on EU law matters”, Available at SSRN: https://ssrn.com/abstract=2261915 or http://dx.doi.org/10.2139/ssrn.2261915. Accessed on 1 February 2023.

Enache, M (2020), The message on the occasion of participation in the Conference “Evolution of the European Union Law—Dialogue between the Court of Justice of the European Union and the Constitutional Courts”, Available at https://www.ccr.ro/mesajul-presedintelui-curtii-constitutionale-cu-ocazia-participarii-%e2%80%8bla-conferinta-evolutia-dreptului-uniunii-europene-dialogul-intre-curtea-de-justitie-a-uniunii-europene-s/. Accessed on 10 March 2024

Muraru, I and Constantinescu, M (1998), “The cases of inadmissibility in the constitutional jurisdiction”, Dreptul, 2, pp. 3-20.

Safta, M (2022), “Judicial activism. Pros and cons”, Romanian Case Law Review/Revista Română de Jurisprudenta, 3, p. 407, Available at https://openurl.ebsco.com/EPDB%3Agcd%3A7%3A10311671/detailv2?sid=ebsco%3Aplink%3Ascholar&id=ebsco%3Agcd%3A160948527&crl=f. Accesed 10 March 2024.

Selejan-Gutan, B (2021), “A tale of primacy, part III: Game of courts”, VerfBlog, 2021/11/17, Available at https://verfassungsblog.de/a-tale-of-primacy-part-iii/, DOI: 10.17176/20211117-202225-0. Accessed 10 March 2024,

Toader, T and Safta, M (2016), Guide of Admissibility to the Constitutional Court of Romania, Hamangiu Publishing House, Bucharest.

Law No. 47/1992 on the organization and operation of the Constitutional Court, Official Gazette no. 807 of 3 December 2010.

Organic Law No. 2/1979 on the Constitutional Court of Spain (https://www.tribunalconstitucional.es/es/tribunal/normativa/Normativa/LOTC-en.pdf).

German Federal Constitutional Court—The decision of the First Chamber on 10 June 1964, BverGE 18, 85, in Selection of Decisions of the German Federal Constitutional Court, C.H. Beck Publishing House, Bucharest, p. 38.

Constitutional Court of Romania.

Decision No. 534/2018, Official Gazette no. 842 of 3 October 2018.

Decision No. 650/2018, Official Gazette no. 97 of 7 February 2018.

Decision No. 533/2018, Official Gazette no. 673 of 3 August 2018.

Decision No. 137/2019, Official Gazette no. 295/17 April 2019.

Decision No. 390/2022, Official Gazette no. 746 of 25 July 2022.

Decision No. 54/2022, Official Gazette no. 212 of 3 March 2022.

Decision No. 137/2010, Official Gazette no. 182 of 22 March 2010.