Insights

In a request for a preliminary ruling of an action brought by RS seeking to challenge the duration of criminal proceedings instituted in response to a complaint lodged by his wife, the Court of Justice was called upon to rule on the principle of judicial independence in the context of Article 19(1) TEU, in a situation in which an ordinary court of a Member State has no jurisdiction, under national law, to examine the conformity with EU law of national legislation that has been held to be constitutional by the constitutional court of that Member State.

In the present case, RS was convicted of criminal proceedings in Romania. His wife lodged a complaint concerning, inter alia, several judges in respect of offences allegedly committed during those criminal proceedings. Subsequently, RS brought an action before the Curtea de Apel Craiova (Court of Appeal, Craiova, Romania) seeking to challenge the excessive duration of the criminal proceedings instituted in response to that complaint.

In order to rule on that action, the Court of Appeal, Craiova, should first assess the compatibility of the national legislation with EU law.

The Romanian Constitutional Court rejected as unfounded the plea of unconstitutionality raised emphasising that when that court declared national legislation consistent with the provision of the Constitution, which requires compliance with the principle of the primacy of EU law, an ordinary court has no jurisdiction to examine the conformity of that national legislation with EU law.

Within this context, the Court of Appeal, Craiova, decided to refer the matter to the Court of Justice to clarify, in essence, whether EU law precludes a national judge of the ordinary courts from having no jurisdiction to examine whether legislation is consistent with EU law.

The Court (Grand Chamber), in its findings of the case at hand, stated that Article 19(1) TEU does not preclude national rules, or a national practice under which the ordinary courts of a Member State are bound, by a decision of the constitutional court of that Member State finding that national legislation is consistent with that Member State’s constitution. National law must however guarantee the independence of that constitutional court from the legislature and the executive.

The Court further pointed out that compliance with the obligation of national courts to apply in full any provision of EU law having direct effect is necessary in order to ensure respect for the equality of Member States before the Treaties. This constitutes an expression of the principle set out in Article 4(3) TEU, which requires any provision of national law which may be to the contrary to be disapplied, whether the latter is prior to or subsequent, to the EU legal rule having direct effect.

The Court further pointed out that the ordinary Romanian courts have, as a rule, jurisdiction to assess the compatibility of Romanian legislative provisions with those provisions of EU law, without having to make a request to that end to the Romanian Constitutional Court.

However, they are deprived of that jurisdiction where the Romanian Constitutional Court has held that those national legislative provisions are consistent with a national constitutional provision providing for the primacy of EU law, in that those ordinary courts are required to comply with that judgement of that constitutional court.

Such a national rule or practice would preclude the full effectiveness of the rules of EU law at issue, insofar as it would prevent the ordinary court called upon to ensure the application of EU law from itself assessing whether those national legislative provisions are compatible with EU law.

In interpreting Article 19(1) TEU, the Court further noted that if it is not possible to interpret the national provisions in a manner consistent with the second subparagraph of Article 19(1) TEU or those benchmarks, the ordinary Romanian courts must disapply those national provisions of their own motion.

In this regard, the Court pointed out that the ordinary Romanian courts have, as a rule, jurisdiction to assess the compatibility of Romanian legislative provisions with those provisions of EU law, without having to make a request to that end to the Romanian Constitutional Court.

The Court pointed out that it may, under Article 4(2) TEU, be called upon to determine that an obligation of EU law does not undermine the national identity of a Member State. By contrast, that provision has neither the object nor the effect of authorising a constitutional court of a Member State, in disregard of its obligations under EU law, to disapply a rule of EU law on the ground that that rule undermines the national identity of the Member State concerned as defined by the national constitutional court. Therefore, if the constitutional court of a Member State considers that a provision of secondary EU law, as interpreted by the Court, infringes the obligation to respect the national identity of that Member State, it must make a reference to the Court for a preliminary ruling, in order to assess the validity of that provision in the light of Article 4(2) TEU, the Court alone having jurisdiction to declare an EU act invalid.

The Court emphasised that since the Court alone has exclusive jurisdiction to provide the definitive interpretation of EU law, the constitutional court of a Member State cannot, on the basis of its own interpretation of provisions of EU law, validly hold that the Court has delivered a judgement exceeding its jurisdiction and, therefore, refuse to give effect to a preliminary ruling from the Court.

The Court made it clear that Article 2 and the second subparagraph of Article 19(1) TEU preclude national rules or a national practice under which a national judge may incur disciplinary liability for any failure to comply with the decisions of the national constitutional court and, in particular, for having refrained from applying a decision by which that court refused to give effect to a preliminary ruling delivered by the Court.

This article was first published in the Malta Indpendent.