At the hearing on 8 June 2021, the Constitutional Court, in the context of the review of laws subsequent to the promulgation, pronounced the following decisions:
I. By a majority,
Upheld the exception of unconstitutionality and found unconstitutional the provisions of Article 11 (3) of Government Emergency Ordinance No 78/2016 for the organisation and functioning of the Directorate for Investigating Organised Crime and Terrorism and amending certain legislative acts.
The provisions found to be unconstitutional are worded as follows: “If disjoinder is order during the criminal investigation procedure, the prosecutor of the Directorate for Investigating Organised Crime and Terrorism may continue to carry out the criminal investigation also in the case disjoint case.”
II. Unanimously,
1. Upheld the exception of unconstitutionality and found unconstitutional Article 72 (2) of Law No 55/2020 on certain measures to prevent and combat the effects of the COVID-19 pandemic, with reference to Article 42 (3) of Government Emergency Order No 21/2004 on the National Emergency Management System, and the legislative solution contained in Article 72 (1) of Law No 55/2020, pursuant to which the provisions of this Law shall be supplemented by the provisions of the general law applicable in this area as regards the resolution of actions brought against Government decisions establishing, extending or ending the state of alert, as well as against ordinances and instructions establishing the application of certain measures during the state of alert.
2. Dismissed as unfounded the exception of unconstitutionality and found that the provisions of Article 3 (2) and Article 4 (1), second sentence, of Law No 55/2020 on certain measures to prevent and combat the effects of the COVID-19 pandemic were constitutional in relation to the criticisms made.
3. Dismissed, as inadmissible, the exception of unconstitutionality of the provisions of Government Emergency Ordinance No 192/2020 amending and supplementing Law No 55/2020 on certain measures to prevent and combat the effects of the COVID-19 pandemic and amending Article 7 of Law No 81/2018 regulating teleworking activity.
The provisions of Article 72 (1) and (2) of Law No 55/2020 are worded as follows: (1) The provisions of this Law shall be supplemented by the rules of ordinary law applicable in the matter, in so far as the latter do not conflict with the provisions of this Law.
(2) For the state of alert established to prevent and combat a COVID-19 pandemic, the provisions of Articles 2 (f) and (m), 4 (1) (b), (2), (5) and (6), 20 (c) and 21 (c), 22 (c), 23 (c), 24 (c) and 42 of Government Emergency Ordinance No 21/2004 on the National Emergency Management System, published in the Official Gazette of Romania, Part I, No 361, of 26 April 2004, approved with amendments and supplementations by Law No 15/2005, as subsequently amended, shall not be applicable.”
III. Furthermore, with regard to the resolution of the exception of unconstitutionality in respect of the provisions of Article 88 ind. 1 and 9 of Law 304/2004 on judicial organisation, and of Government Emergency Ordinance No 90/2018 on certain measures for the operationalisation of the Judiciary Crime Investigation Section, the Court states the following:
Given that, at the hearing of 20 May 2021, when the public hearing before the Constitutional Court took place on the exception of unconstitutionality raised, both the Prosecutor’s Office attached to the High Court of Cassation and Justice — the Prosecutor General of Romania, as a party to the file, and the prosecutor present before the Court requested that, in their examination as to constitutionality, the Court would take into account the judgment of 18 May 2021, delivered by the Court of Justice of the European Union in Case C-355/19, regarded as an element that can determine a case-law reversal in terms of finding applicable Decision 2006/928/EC in the review of constitutionality, and, implicitly, the infringement of Article 148 of the Constitution, the Court examined the request thus made and found the following:
From the perspective of the review of constitutionality, the judgment of the Court of Justice of the European Union does not represent a novelty either with regard to the legal effects of Decision 2006/928 and of the CVM reports drawn up by the Commission on the basis of that decision, in the meaning that, as previously established by the Romanian Constitutional Court, Decision 2006/928 is binding in nature and the CVM reports represent mere recommendations, or with regard to the content of Decision 2006/928, stating that Romania has the task of collaborating in good faith with the European Commission “with a view to overcoming the difficulties encountered with regard to meeting the benchmarks”.
With regard to the rules on the establishment of the Judiciary Crime Investigation Section, in its judgment of 18 May 2021, the CJEU held that, in order for them to comply with EU law, they must: (i) be justified by objective and verifiable imperative requirements relating to the sound administration of justice, (ii) be accompanied by specific safeguards that remove any risk to the independence of judges and prosecutors, and (iii) in the investigation procedure, judges and prosecutors have the right to an effective remedy and to a fair trial, the presumption of innocence and the right of defence.
Given that the three issues on which the Court of Justice has ruled, which are derived from EU law and in particular from the value of the rule of law laid down in Article 2 TEU, the Constitutional Court has examined to what extent the principle of the rule of law, which is expressly enshrined in national law, in Article 1 (3) of the Romanian Constitution, is affected by the rules governing the establishment of the Judiciary Crime Investigation Section and found that these represent an option of the national legislator and fulfil the guarantees laid down in the judgment of the CJEU, in accordance with the provisions of Article 1 (3) and Article 21 (1) and (3) of the Constitution on free access to justice, right to a fair trial, and settlement of cases in a reasonable time, and, implicitly, in line with the provisions of Articles 2 and 19 (1) TEU.
With regard to the jurisdiction of the court on the interpretation and application of European law, the Court has held, first, that a court has jurisdiction to examine the conformity of a provision of ‘national law’ with provisions of European law in the light of Article 148 of the Constitution and, if it finds that it is contrary, it has jurisdiction to apply, as a matter of priority, the provisions of EU law in disputes concerning the individual rights of citizens. In all cases, through the notion of ‘national law’, the Constitution refers exclusively to sub-constitutional legislation. The Basic Law maintains its superior position under Article 11 (3) of the Basic Law, and Article 148 does not give EU law priority over the Romanian Constitution, so that a court does not have the power to examine the conformity of a provision of the ‘national law’, found to be constitutional by a decision of the Constitutional Court, with the provisions of European law in the light of Article 148 of the Constitution.
In the second place, the Court found that the CJEU, declaring Decision 2006/928 to be binding, limited its effects from a twofold perspective: on the one hand, it has established that the obligations resulting from the Decision fall within the responsibility of the Romanian authorities competent to collaborate institutionally with the European Commission (paragraph 177 of the judgment), and thus within the responsibility of political institutions, the Parliament and the Government of Romania, and, second, that the obligations are exercised in accordance with the principle of sincere cooperation laid down in Article 4 TEU. In both respects, the obligations cannot be binding on the courts, State bodies which are not empowered to collaborate with a political institution of the European Union.
Thirdly, the Court found that the operative part of the judgment of the CJEU, according to which a court “is authorised to disapply of its own motion a provision of national law which falls within the scope of Decision 2006/928 and which it considers, in the light of a judgment of the Court, to be contrary to that decision or to the second subparagraph of Article 19(1) TEU” has no basis in the Romanian Constitution, since Article 148 of the Constitution enshrines the primacy of EU law over conflicting provisions of national laws. The CVM reports, drawn up on the basis of Decision 2006/928, in terms of their content and effects, as established by the judgment of the Court of Justice of 18 May 2021, do not constitute rules of European law which the court should apply as a matter of priority by disregarding the national rule. That being so, the national judge cannot be called upon to decide on the application of recommendations as a matter of priority to the detriment of national legislation, declared to be in accordance with the national Constitution by the Constitutional Court, since the CVM reports do not establish norms, so they are not likely to conflict with national law.
In conclusion, since the judgment of the Court of Justice of the European Union of 18 May 2021 in Case C-355/19 cannot be regarded as an element capable of giving rise to a reversal of case-law as regards the finding of the effect of Decision 2006/928/EC in the review of constitutionality and, consequently, of an infringement of Article 148 of the Constitution, the Constitutional Court:
1. By a majority vote, dismissed as unfounded the exception of unconstitutionality and found that the provisions of Article 88 (1) to (5), Article 88 (2) to (1), Article 88 (1) (a) to (c) and (e) and Article 88 (2) of Law No 304/2004 on judicial organisation are constitutional in relation to the criticisms raised;
2. Unanimously dismissed, as having become inadmissible, the exception of unconstitutionality of the provisions of Article 88 ind. 1 (6), Article 88 ind. 8 (1) (d) of Law No 304/2004 on judicial organisation;
3. Unanimously dismissed, as inadmissible the exception of unconstitutionality of Government Emergency Ordinance No .90/2018 on certain measures for the operationalisation of the Judiciary Crime Investigation Section.
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Decisions are final and generally binding.
The arguments set out in the reasoning part of the decisions of the Constitutional Court will be set out in the decisions, which will be published in the Official Gazette of Romania, Part I.
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