În perioada 3-4 mai 2018, domnul Benke Károly, magistrat-asistent șef al Curții Constituționale, a participat la Conferința „Constitutional Identity and Social memories in Central and Eastern Europe”, organizată de Facultatea de Drept, din cadrul Universităţii de Vest din Timişoara, Centre for Legal Education and Social Theory şi Central and Eastern European Forum of Young Legal, Political and Social Theorists. În cadrul panelului Judicial Dialogue in the European Union a prezentat lucrarea The Romanian Constitutional Court’s approach toward constitutional identity. Abstract
The constitutional courts’ case law is often seen as the invisible Constitution of a nation. While the Constitution itself contains rules on the general organization of the state and enshrines the fundamental rights and freedoms, the jurisprudence role is to solve the inherent conflicts between different state actors and to determine the concrete sphere of protection provided by the fundamental rights and liberties. In both cases, the Court has to interpret the constitutional norm in an evolving manner, as, like other fields of law, the Constitution is a living law. A great challenge for every constitutional court is to interpret the normative content of the national Constitution as much as possible in line with the requirements derived from the EU accession. This adaptation process has its limits, too, taking into account that there is no such constitutional obligation.
The Romanian Constitutional Court’s approach to the EU law is a euro-friendly one, as a great number of its decisions cite EU law/ ECJ case law. But, in the same, time one can notice that there is a certain fear of the national court to rely its rationale exclusively or in a decisive manner on EU law/ ECJ case law and uses these EU instruments to legitimize the adopted solution. There are some decisions in which the Court adopts the EU approach, but warns that it will do it as long as the question at stake does not affects the national constitutional identity. As it may be noticed, there is no definition provided by the court concerning this concept, but still the Court uses it. That means that we will be the witnesses of a step by step development of this concept that will comprise the hard core principles/ rights of a nation. In this context, the next step that has to be analyzed is that such a development can become a barrier in the unitary application of the EU law throughout the EU. The Romanian Constitutional Court’s case law offers some examples in which this concept has been affirmed, but never explained. So, the analysis will focus on the decisions that imported this concept in our legal order, emphasizing the advantages and disadvantages of such constitutional transplants, too.