124 DANIEL MIHAIL ŞANDRU, CONSTANTIN MIHAI BANU, DRAGOŞ ALIN CĂLIN
points of view, without the latter being under a duty to follow the solution
proposed by the Community administration. Recommendations, unlike opinions,
may be rendered by own motion, representing only the position of the issuing
institution, their real nature being moral or political one.”
Unfortunately, such confusions between acts of Council of Europe and of
European Union were meant to continue, so one might say that recent preliminary
references concerning right to compensation for former political prisoners and
reduction in remuneration respectively from the point of view of scope of the
Charter of Fundamental Rights of the European Union continue the said chain of
errors in interpreting and applying EU law.
One extreme example is a resolution issued by the Court of Appeal, Piteşti, in
which that court labelled five times the European Court of Human Rights as the
“European Constitutional Court of Human Rights” (sic!)63.
An even more recent judgment - judgment No 9333 of 13 June 201264, by which
the court rejected a request for a preliminary reference to the European Court of
Justice contains a confusion between EU law and ECHR system. The court was
asked to grant a request for a preliminary reference containing two questions in
order to assess the compatibility of provisions of Government Emergency
Ordinance No 119/200765 with Directive 2000/35/EC66. That court concluded that
“there [were] not any uncertainties in transposing Directive 2000/35/EC [...], so
that a request to the European Court [was] of no use; secondly, the court
contemplate[d] opportunity criteria, assessing that, according to case-law of the
ECJ, a dispute of such a value (sic!) [did] not prompt a reference.” The apparent de
minimis criterion is reminiscent of the ECHR system, and more precisely of the
Protocol No 14 to the Convention67, by which a new admissibility criterion was put
in place - that of a lack of a significant disadvantage.
An a final word: in the preliminary ruling procedure, the national court plays
(or at least has to play) the crucial role, by establishing the need to refer to the
European Court of Justice, the relevance of the questions sent, the usefulness of
Court’s answer in order to solve the issues raised in the main action.
63 Court of Appeal, Piteşti, chamber for civil, labour, social security and family disputes,
resolution of 20 June 2011, file No 1594/109/2010, not reported.
64 Court of the Second District, Bucharest, civil chamber, file No 783/300/2012, not reported.
65 Government Emergency Ordinance No 119 of 24 October 2007 concerning meas ures to combat
late payment in commercial transactions, Monitorul Oficial No 738 of 31 October 2007 (currently
66 Directive 2000/35/EC of the European Parliament and of the Council of 29 June 2000 on
combating late payment in commercial transactions, OJ L 200, 8.8.2000, p. 35.
67 Adopted on 13 May 2004, into force since 1 June 2010. Romania ratified it by Law No 39/ 2005,
Monitorul Oficial No 238 of 22 March 2005. The decision Adrian Mihai Ionescu v. Romania of 1 June
2010 is the first example in which the European Court of Human Rights assessed this new
admissibility criterion, in case the subject-matter of the case having a value of 90 EUR. See among later
decisions rendered by the ECtHR: Dorina Margareta Gaftoniuc v. Romania, decision of inadmissibility of
22 February 2011; Manuela Ştefnescu v. Romania, decision of inadmissibility of 12 April 2011.