Trends and patterns in preliminary references in courts of Romania. Issues related to the charter of fundamental rights of the European Union and the European convention on human rights

Author:Daniel Mihail Sandru - Constantin Mihai Banu - Dragos Alin Calin
Pages:97-124
SUMMARY

The case-law of the courts of Romania reveals significant disparities concerning interpretation and application of the two main European sources in the field of human rights - the Charter of Fundamental Rights of the European Union and the European Convention on Human Rights. That is the reason that the present chapter deals with case-law of Romanian courts concerning the said issue raised in requests for a preliminary ruling, covering both references for a preliminary ruling and judgments rendered by courts of Romania in which those courts rejected such requests. The subject-matter is liable to trigger a heated debate about limits of powers and their exercise by courts in relation to references involving the application of different legal standards - national law, European Union law and the European Convention on Human Rights.

 
CONTENT
Trends and patterns in preliminary references in Courts of Romania 97
TRENDS AND PATTERNS IN PRELIMINARY REFERENCES IN
COURTS OF ROMANIA. ISSUES RELATED TO THE CHARTER
OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION
AND THE EUROPEAN CONVENTION ON HUMAN RIGHTS
Daniel Mihail ŞANDRU
Constantin Mihai BANU
Dragoş Alin CLIN*
Abstract
The case-law of the courts of Romania reveals significant disparities concerning interpretation
and application of the two main European sources in the field of human rights - the Charter of
Fundamental Rights of the European Union and the European Convention on Human Rights. That
is the reason that the present chapter deals with case-law of Romanian courts concerning the said
issue raised in requests for a preliminary ruling, covering both references for a preliminary ruling
and judgments rendered by courts of Romania in which those courts rejected such requests. The
subject-matter is liable to trigger a heated debate about limits of powers and their exercise by courts
in relation to references involving the application of different legal standards - national law,
European Union law and the European Convention on Human Rights.
Keywords: preliminary reference; Article 267 TFEU; national court or tribunal;
Constitutional Court of Romania; rejection of a request for a preliminary reference; European
Convention on Human Rights; Charter of Fundamental Rights of the European Union
1. Preliminary issues
There are few doubts that practice of courts in Romania and of the
Constitutional Court alike reveals difficulties in understanding and application of
A previous version of this paper – “Interpretarea şi aplicarea Cartei drepturilor fundamentale a
Uniunii Europene şi a Conveniei pentru aprarea drepturilor omului şi a libertilor fundamentale în cereri
privind trimiterile preliminare în faa instanelor din România” [“Interpretation and Application of the Charter
of Fundamental Rights of the European Union and the European Convention on Human Rights in References
for a Preliminary Ruling in Courts of Romania”] – was published in Revista român de drept european
[Romanian Journal of European Law] No 1/2013, 105-135.
* Daniel-Mihail Şandru, Professor – Universitatea Creştin Dimitrie Cantemir, Bucharest; Senior
Researcher – Center for European Legal Studies, Institute for Legal Research ‘Andrei Rdulescu’,
Romanian Academy. Constantin-Mihai Banu, Associate Researcher – Center for European Legal
Studies, Institute for Legal Research ‘Andrei Rdulescu’, Romanian Academy. Dragoş Alin Clin,
Judge at the Court of Appeal Bucharest, Associate Researcher – Center for European Legal Studies,
Institute for Legal Research ‘Andrei Rdulescu’, Romanian Academy.
Law Review vol. VI, issue 2, Jul
y
-December 2016, p. 97-124
98 DANIEL MIHAIL ŞANDRU, CONSTANTIN MIHAI BANU, DRAGOŞ ALIN CĂLIN
European Union law and such difficulties are confirmed also by the mix-up
between the mechanism of the European Convention for the Protection of Human
Rights and Fundamental Freedoms (hereinafter “ECHR”) and the legal order of the
European Union.
The case-law of the courts of Romania concerning the Charter and the ECHR,
from the point of view of preliminary references (ordered by court or requested by
parties to proceedings), reveals certain intriguing and more or less consistent lines:
on one hand, certain courts managed well the relationship between EU law, ECHR
system and national law, on the other, there are courts that shown difficulties in
assessing the relevance of EU law or ECHR rules in proceedings1. In other words,
the latter line of case-law raised issues connected to scope ratione materiae of EU
law or of the preliminary ruling procedure. What might be the subject-matter of an
order for reference to the Court of Justice? Moreover, the Court of Justice
emphasized in some of its decisions rendered in preliminary references made by
courts of Romania the scope ratione materiae of EU law2.
In the first part of the chapter (Section 2) preliminary references made by
courts of Romania in the field of human rights (the Charter and/or the ECHR) are
discussed; then (Section 3) some judgments by which courts of Romania rejected
requests of parties to proceedings for an order for reference are examined. The next
part (Section 4) perhaps the most significant request made by a court of Romania
in the relevant field (the ECHR and the Charter), more precisely in the field of
European arrest warrant, along with the answer provided by the Court of Justice
and the subsequent judgment rendered by the referring court, is considered.3
All these judgments have a common feature: all concern interpretation and
application of various provisions of the ECHR and the Charter of Fundamental
Rights, in various circumstances linked more or less to the EU law. The chapter
ends with a brief account concerning the case-law of Romanian courts in the
relevant field.
1 For a more comprehensive collection of examples concerning mainly this latter case, see Mihai
Şandru, Mihai Banu, Dragoş Clin, Procedura trimiterii preliminare. Principii de drept al Uniunii Europene
si experiente ale sistemului roman de drept [Preliminary ruling procedure. Principles of European Union law
and experiences encountered in the Romanian legal order], C.H.Beck, Bucharest, 2013, especially Chapter 2.
2 On this issue, see ibid., Chapter 10 Section 3, pp. 593-595.
3 Court of Appeal Constana, chamber for criminal cases and children and family disputes, file
No 1230/36/2009, resolution of 18 May 2011 („Radu Ciprian Vasile”), not reported. For a record for this
case, see http://portal.just.ro/36/SitePages/Dosar.aspx?id_dosar=3600000000028408&id_inst=36.
The order for reference was registered at the Court of Justice as Case C-396/11, Radu, and the
judgment was rendered on 29 January 2013, not yet reported. It is worth another remark here: this
case is the only reference made by courts of Romania that was so far assigned to the Grand Chamber
of the Court.
Trends and patterns in preliminary references in Courts of Romania 99
2. References from courts of Romania for a preliminary ruling
2.1. Compensation granted to former political prisoners and international
instruments in the field of human rights as European “Community provisions”
The first preliminary reference discussed here was made by a resolution of the
Tribunal Argeş of 4 April 20114 (hereinafter “the resolution of 4 April 2011”),
request registered at the Court of Justice as Case C-483/11 (Boncea and Others). A
second reference was made by a resolution of 4 July 2011 of the same court5
(hereinafter “the resolution of 4 July 2011”), registered at the Court of Justice as
Case C-484/11 (Budan).6 These two cases were joined by the Court as their
subject-matter was very similar: both cases concerned claims for compensation
payable to persons sentenced in political trials during the Communist regime,
under Law No 221/20097, as amended. More precisely, these disputes rose as
consequence of a legislative vacuum caused by two decisions of the Constitutional
Court8 that established that certain provisions (concerning the amount of
compensation for non-material harm suffered as consequence of these trials) of the
said Law and of the amending act – the Government Emergency Ordinance No
62/20109 – were not compliant with the Constitution. The resolution of 4 April
2011 took note of the request filed on 21 February 2011 by the plaintiffs for a
preliminary reference “concerning the incompatibility of domestic provisions with
the Treaty on Functioning of the European Union, related to Article 5 of Law No
221/2009, as amended by the Constitutional Court of Romania by Decision No
1358 of 21 October 2010”; the plaintiffs supported the view that the law breached
“provisions to which Romania is a party as a result of accession, more precisely it
breaches Article 5 of the European Convention on Human Rights, according to
which “Everyone who has been the victim of arrest or detention in contravention
of the provisions of this article shall have an enforceable right to compensation.”,
and also Article 8 of the Universal Declaration of Human Rights, according to
which “Everyone has the right to an effective remedy by the competent national
tribunals for acts violating the fundamental rights granted him by the constitution
or by law.””
4 Tribunal Argeş, civil chamber, file No 2984/109/2010, resolution of 4 April 2011, not reported.
5 Tribunal Argeş, civil chamber, file No 2217/109/2011, resolution of 4 July 2011, not reported.
6 Mihai Şandru, “Respingerea trimiterilor preliminare ca fiind vdit inadmisibile: Corpul Naional al
Poliiştilor (C-434/11), Cozman (C-462/11), cauzele conexate Boncea şi Budan (C-483/11 şi C-484/11) [“The
rejection of preliminary references as manifest inadmissible: Corpul Naional al Poliiştilor (C-434/11),
Cozman (C-462/11), Joined Cases Boncea and Budan (C-483/11 and C-484/11)”], Curierul Judiciar,
No 1/2012, p. 61-62.
7 Law No 221 of 2 June 2009 on political convictions and administrative measures who are
equated to those, rendered from 6 March 1945 to 22 December 1989, published in Monitorul Oficial
[Official Gazette of Romania] No 396 of 11 June 2009.
8 Decision No 1354 of 20 October 2010 and Decision No 1358 of 21 October 2010, respectively,
both published in Monitorul Oficial No 761 of 15 November 2010.
9 Published in Monitorul Oficial, No 446 of 1 July 2010.
100 DANIEL MIHAIL ŞANDRU, CONSTANTIN MIHAI BANU, DRAGOŞ ALIN CĂLIN
Subsequently, the same resolution lists provisions considered relevant, in
order that these should be interpreted by the Court of Justice: Article 5 of the
European Convention on Human Rights and Article 8 of the Universal Declaration
of Human Rights, and concludes that “[t]herefore, according to Community
provisions, every person who has been a victim of a political conviction contrary to
[those] provisions, has a right to compensation, yet according to Article 5 as
amended by Decision No 1358/2010 of the Constitutional Court this right is
precluded.”
The two referred questions were the following:
“Do the provisions of Article 5 of Law No 221/2009, as amended by decision
No 1358 of the Constitutional Court of Romania of 21 October 2010, infringe
Article 5 of the European Convention for the Protection of Human Rights and
Fundamental Freedoms and Article 8 of the Universal Declaration of Human
Rights?
Do Article 5 of the European Convention for the Protection of Human Rights
and Fundamental Freedoms and Article 8 of the Universal Declaration of Human
Rights preclude national legislation which, in the case of the politically-motivated
conviction of an individual by a decision contrary to law, allows that individual’s
right to compensation for the non-material damage suffered to be limited?”
By the second resolution, that of 4 July 2011, having a similar background, the
same court (Tribunal Argeş) supported the need to make a preliminary reference
“taking into account the following rules of Community law, that enjoy primacy
according to Articles 11(1) and 20 of the Constitution of Romania”10; the relevant
European “Community” law in the instant case were: Article 6 TEU, Article 267
TFEU, “Chapter I: Dignity” of the Charter of Fundamental Rights of the EU
(Article 1 “Human dignity” and Article 4 “Prohibition of torture and inhuman or
degrading treatment or punishment”).
The proceedings were stayed pending “forwarding” the Court’s answer. The
questions referred were the following: “In the interpretation given by the Court of
Justice of the European Union of the fundamental principles laid down by the
Charter of Fundamental Rights of the European Union and by the Treaties of the
European Union – and in the absence of any domestic legislation (as result of the
declaration that Article 5 of Law No 221/[2009] is unconstitutional) – are the
10 There has been a manifest confusion between the scope of those two provisions and that of
Article 148 of the Constitution. Article 11 of the Constitution, which establishes the relationship
between international law and national law and Article 20 of the Constitution, that provides the status
of international treaties on human rights in the national legal order were considered as applicable in
the instant case, even if the Article 148 of the Constitution (“Integration into the European Union”)
establishes a lex specialis in that regard, providing inter alia the status of EU law in the domestic legal
order. In various instances, courts of Romania referred to Article 20 rather to Article 148 of the
Constitution.
Trends and patterns in preliminary references in Courts of Romania 101
applicant and the intervener entitled to compensation for non-material damage as
victims of the Communist regime and now citizens of the European Union?”
By Order of 14 December 201111, the Court of Justice found that it lacked
jurisdiction to answer the referred questions in both cases. The Court held that in
the framework of Article 267 TFUE, it is called to interpret Union law only within
competences it was granted12. In a reference for a preliminary ruling, where
national legislation falls within the scope of Union law, the Court must provide all
the criteria of interpretation needed in order for the national court to determine
whether that legislation is compatible with the fundamental rights which derive in
particular from the Charter13. The lesson learned from here is twofold: on one
hand, the national legislation has to fall within the scope of EU law in order the
Court to answer the preliminary reference; on the other, the source of fundamental
rights is the Charter. The latter issue is emphasized by the Court in its Judgment in
Case Radu: in other words, even if an order for reference mentions rights provided
by the ECHR, the Court of Justice will most likely strive to find and assess the
equivalent provisions of the Charter.
On the contrary, other Romanian courts, in a similar framework, rejected
requests for making a preliminary reference to the Court of Justice, relying on the
Order rendered in Joined Cases Budan and Boncea.
By resolution of 18 May 201214, in a similar dispute, the Court of Appeal
Bucharest rejected a request containing four preliminary questions:
“1) Whether Article 5(1) first sentence point (a) of Law No 221/2009, in
original version, established or not a right to compensation for the plaintiff,
“legitimate expectation”, which is included in the concept of “goods” according to
Article 6 of the Treaty on the European Union, read in conjunction with Article 17
of the Charter of Fundamental Rights of the European Union in the light of
provisions of Article 1 of the Additional Protocol No 1 to the Convention for the
protection of human rights and fundamental freedoms to which the European
Union has acceded (sic!).
2. To establish that provisions of Article 5(1) first sentence point (a) of Law No
221/2009, in original version, are inapplicable to actions brought previously to
Decision No 1358/2010 [of the Constitutional Court] […], actions that rely on this
decision of the Constitutional Court to the disregard of the principle of equality
provided by Article 6 of the Treaty on European Union, read in conjunction with
11 Order of 14 December 2011, Joined Cases C-483/11 and C-484/11, Boncea and Budan, not
reported.
12 Judgment of 5 October 2010, Case C-400/10 PPU McB. [2010] ECR I-8965, para. 51; Order of 22
June 2011 Case C-161/11 Vino II, not reported, paras. 25 and 37.
13 Judgment of 29 May 1997 Case C-299/95 Kremzow [1997] ECR I-2629, para. 15; Judgment of 15
November 2011 Case C-256/11 Dereci and Others, not yet reported, para. 72.
14 Court of Appeal Bucharest, fourth chamber for civil cases, file No 12336/3/2010, not reported.
102 DANIEL MIHAIL ŞANDRU, CONSTANTIN MIHAI BANU, DRAGOŞ ALIN CĂLIN
Articles 20 and 21 of the Charter of Fundamental Rights of the European Union in
the light of Article 1 of Protocol No 12 to ECHR Convention (sic!), liable to
establish discriminatory legal positions between persons, as certain of them benefit
from final judgments prior to decision of establishing the incompatibility of these
[legislative] provisions to the Constitution, while in case of other persons
judgments or final judgments are not rendered, even if they brought proceedings
prior to the said decision […] [of the Constitutional Court].
3) To establish that Decision No 1358/2010 of the Constitutional Court finding
a contradiction of Article 5(1) first sentence point (a) of Law No 221/2009 with the
Constitution infringes the principle of equality provided by Article 6 of the Treaty
on European Union read in conjunction with Articles 20 and 21 of the Charter of
Fundamental Rights of the European Union in the light of provisions of Article 14
ECHR and Article 1 of the Protocol No 12 to ECHR Convention (sic!).
4) To establish whether the Decision in the interests of the law No 12/2011 of
the High Court of Cassation and Justice, that provides that Article 5(1) first
sentence of Law No 221/2009 concerning political trial is no longer in force and is
not anymore able to be the legal basis for cases that are not yet final on the day of
publication of the decision of the Constitutional Court in Monitorul Oficial, is
contrary to principle of equality established in Article 6 of the Treaty on the
European Union read in conjunction with Articles 20 and 21 of the Charter of
Fundamental Rights of the European Union in the light of provisions of Article 14
of the ECHR Convention (sic!) and Article 1 of the Additional Protocol No 12 to the
ECHR Convention.”
In its ruling, the court reprised almost literally points of the Order of the Court
rendered in Joined Cases Boncea and Budan (along with references made by the
Court of Justice). The court rightly held that “Law No 221/2009 does not have a
basis in any Community act and it also does not aim to transpose any Community
act, be it primary or secondary, at national level or the European Charter (sic!), so
that interpretation and application of the domestic regulation escape the
jurisdiction of the European court.” In other words, for the point of view of that
court, the request for an order for reference was deemed as inadmissible.
Other judgments are consistent with this line: the resolution of 14 September
2011 of the Court of Appeal Bacu15, resolutions of 20 June 201216 and 22 June 2012
respectively of the Court of Appeal Bucharest17, and also the resolution of 12 April
2012 of Tribunal Argeş18.
15 Court of Appeal Bacu, chamber of civil cases, children, family, labour and social security
disputes, file No 2296/103/2010, not reported.
16 Court of Appeal Bucureşti, fourth chamber for civil cases, file No 12335/3/2010, not reported.
17 Court of Appeal Bucureşti, fourth chamber for civil cases, file No 41169/3/2010, not reported.
18 Tribunal Argeş, civil chamber, file No 4933/109/2011, not reported.
Trends and patterns in preliminary references in Courts of Romania 103
2.2. Reductions in remuneration and scope of the Charter in preliminary
references. The “Corpul Naional al Poliiştilor” series19
The first decision in the following series of preliminary references is a
resolution rendered by Tribunal Alba20, registered at the Court of Justice on 22
August 2011 as Case C-434/11, Corpul Naional al Poliiştilor. The main action
concerned reductions in remuneration (by 25%) for public sector employees (civil
servants). The plaintiff - an association representing the interests of policemen -
Corpul Naional al Poliiştilor - asked the court to make a reference to the
European Court of Justice. That request was (partly21) allowed by the court, which
referred the following question: “Must the provisions of Articles 17(1), 20 and 21(1)
of the Charter of Fundamental Rights of the European Union be interpreted as
precluding reductions in remuneration such as those imposed by the Romanian
State under Law No 118/2010 and Law No 285/2010?”
The substantive part of this reference raises the issue of the absence a link to
EU law, issue that was emphasized by the European Court of Justice in its answer:
by Order of 14 December 2011, Case C-434/11, Corpul Naional al Poliiştilor22,
relying on (former) Articles 92(1) and 103(1) of its Rules of procedure23, the Court
found it lacked jurisdiction to answer the question. Yes, according to the Court of
Justice, “the fact remains that the order for reference does not contain any specific
information enabling Law No 118/2010 and Law No 285/2010 to be considered as
aiming to implement Union law so that the jurisdiction of the Court to answer the
present preliminary reference is not proven.”24
Very shortly afterwards, in the same type of proceedings, Court of Appeal
Constana25 admitted the request of the appellant on points of law, Corpul
Naional al Poliiştilor, and made a preliminary reference to the European Court of
Justice (registered at the latter as Case C-134/12, Corpul Naional al Poliiştilor). The
two questions were the following:
“Must the provisions of Articles 17(1), 20 and 21(1) of the Charter of
Fundamental Rights of the European Union be interpreted as precluding
reductions in remuneration such as those imposed by the Romanian State under
Law No 118/2010 and Law No 285/2010?
19 Parts of this section were previously published as M. Banu, Reduceri salariale şi domeniul de
aplicare a Cartei drepturilor fundamentale a UE în contextul unei trimiteri preliminare [Reductions in
remuneration and scope of the Charter of Fundamental Rights in the framework of a preliminary reference],
Curierul Judiciar No 11/2011, 615-617.
20 Tribunal Alba, chamber of commercial and administrative disputes, file No 94/57/2011,
resolution No 1389/CAF/2011, 20 June 2011, not reported.
21 In that the court dropped Article 47 of the Charter from the referred question.
22 Not reported.
23 Under the new Rules of procedure of the Court of Justice, in force since 1 November 2012 (OJ L
265, 29.9.2012, p. 1), the legal basis for rendering such an order is Article 53(2).
24 Order of 14 December 2011, Case C-434/11, Corpul Naional al Poliiştilor, not reported, para. 16.
25 Court of Appeal Constana, second chamber for civil, administrative and tax disputes,
resolution of 8 February 2012, file No 1191/88/2011, not reported.
104 DANIEL MIHAIL ŞANDRU, CONSTANTIN MIHAI BANU, DRAGOŞ ALIN CĂLIN
Must the provisions of Article 15(3) of the European Convention for the
Protection of Human Rights and Fundamental Freedoms, whereby the Romanian
Government was required to inform the Secretary General of the Council of
Europe of its intention to adopt measures to reduce remuneration and to specify
the time-limit laid down for implementing them, be interpreted as rendering
invalid Law No 118/2010 and Law No 285/2010?”
Obviously, the answer of the Court of Justice26 was by no means different than
that given in Case C-434/11, Corpul Naional al Poliiştilor: again, the Court found it
manifestly lacked jurisdiction to answer those questions.
Nonetheless, another preliminary reference with the same subject-matter soon
followed: on 27 June 2012, the Court of Appeal Braşov27 made a preliminary
reference in an appeal on points of law lodged by the same appellant on points of
law - Corpul Naional al Poliiştilor. This time, the Romanian court raised six
questions. Relying on Article 53(2) of its (new) Rules of procedure, by Order of 15
November 2012 in Case C-369/1228, the Court of Justice found it manifestly lacked
jurisdiction.
2.3. Also on reductions in remuneration (but this time) under the ECHR.
Case Cozman
In the same framework of reductions in remuneration under Law No
118/2010, the Tribunal Dâmbovia decided in February 2011, under “Article 234(2)
of the Treaty establishing the European Community”, to refer two preliminary
questions to the Court of Justice. Those questions concerned interpretation of some
provisions of the European Convention on Human Rights29:
“Must Article 1 of the First Additional Protocol to the European Convention
for the Protection of Human Rights and Fundamental Freedoms be interpreted as
allowing the salaries of staff paid from public funds to be reduced by 25%,
pursuant to Article 1(1) of Law No 118/2010 laying down certain measures
necessary to restore budgetary balance?
If the answer is in the affirmative, is entitlement to salary an absolute right
which the State may not make subject to any limitations?”
In its resolution of February 2011, the court briefly pointed out: “Taking note
that in the instant case a motion to ask the Court of Justice of the European Union
26 Order of 10 May 2012, Case C-134/12, Corpul Naional al Poliiştilor, not reported. See also
Mihai Şandru, “Necompetena vdit a CJUE în trimiterea preliminar Corpul Naional al Poliiştilor
[“Manifest lack of jurisdiction of the ECJ concerning the preliminary reference in Corpul Naional al Poliiştilor,
C-134/12”], Curierul Judiciar, 7/2012, p. 442.
27 Court of Appeal Braşov, chamber for administrative and tax disputes, resolution of 27 June
2012, file No 4547/62/2011, not reported.
28 Not reported.
29 Tribunal Dâmbovia, civil chamber, file No 393/120/2011, resolution of 7 February 2011, not
reported. The reference was registered at the Court only on 5 September 2011 as Case C-462/11, Victor
Cozman v Teatrul Municipal Târgovişte.
Trends and patterns in preliminary references in Courts of Romania 105
to answer a preliminary question concerning interpretation of Article 1 of the First
Additional Protocol to the European Convention for the Protection of Human
Rights and Fundamental Freedoms was submitted, the proceedings will be
stayed.” In other words, apparently the referring court did not question at all the
issue if the reference was necessary and useful.
In its request for a preliminary ruling, under the heading “Relevant national
case-law”, the court mentioned Decision No 72 of 25 June 201030, in which the
Constitutional Court found that provisions of Law 118/2010 were constitutional.
On the other hand, under the heading “Applicable Community provisions”,
reference was made to Article 1 of the First Additional Protocol to the ECHR.
Outlining the “reasons that prompted the request”, the referring court stated:
“By reducing remunerations for budgetary employees by 25% during a period of 6
months, from 3 July 2010 to 31 December 2010, it becomes apparent that the right
to property provided by Article 1 of the First Additional Protocol for a possession
consisting in workers’ outstanding claims relating to pay from public funds is
breached.” In the heading concerning arguments of parties to the main
proceedings, the respondent’s arguments were provided at length. The respondent
relied on case-law of the European Court of Human Rights (“hereinafter the
“ECtHR”) in order to claim that reduction in remuneration did not infringe the
right to property, as protected by the ECHR. In the heading devoted to the
“opinion of the national court”, a detailed analysis of case-law of the ECtHR was
performed, in order to reach the conclusion that “tribunal is of opinion that
reduction in remuneration by 25% falls within the right of the State to establish
certain limits on the rights provided at Article 1 of the First Additional Protocol.”
The issue raised here is very similar to that concerning the scope of EU law in
the framework of the Charter of Fundamental Rights of the EU: there is no doubt
that the national court would have to asses whether the dispute was linked to EU
law. Presumably, the conclusion reached by the court would have been that the
reduction in remuneration did not fall within the scope of EU law.
By Order of 14 December 201131, the Court of Justice found it manifestly lacked
jurisdiction to answer the question referred. As, for example, in the Order rendered
in the same day in Case C-434/11, Corpul Naional al Poliiştilor, above, the Court
held that the fact remains that the order for reference does not contain any specific
information enabling Law No 118/2010 to be considered as aiming to implement
Union law so that the jurisdiction of the Court to answer the present preliminary
reference is not proven.32
30 Monitorul Oficial No 433 of 2010.
31 Not reported.
32 See also Steve Peers, The‘Opt-out’ that Fell to Earth: The British and Polish Protocol Concerning the
EU Charter of Fundamental Rights, Human Rights Law Review, 2012:12(2), 375-389.
106 DANIEL MIHAIL ŞANDRU, CONSTANTIN MIHAI BANU, DRAGOŞ ALIN CĂLIN
3. Rejection of a request for reference for a preliminary ruling
In other instances, courts of Romania rejected requests directed by parties to
proceedings for making a preliminary reference to the Court of Justice. The present
section deals with some of the rulings of Romanian courts.
i) In proceedings similar to those discussed above (Section 2.1), Tribunal Argeş
rejected a request of the plaintiffs to make a preliminary reference33. The judgment
does not reprise the proposed questions, the court holding briefly that “[…]
making a preliminary reference to the Court of Justice of the European Union is
requested”. The court noticed that following decisions of the Constitutional Court
by which it ruled that legislative provisions concerning the right to compensation
for moral damages granted to political prisoners during the Communist regime
were unconstitutional “there is not anymore a legal framework for the plaintiff’s
request”. The request was therefore rejected as ungrounded.
ii) In an appeal on points of law brought before the High Court of Cassation
and Justice, one of the appellants on points of law lodged a request for making a
reference to the Court of Justice, which was rejected by resolution of 24 February
200934. The request contained two questions, concerning mainly the interpretation
of Articles 41 and 47 of the Charter of Fundamental Rights of the European Union
as having direct effect and concerning also the right of defence in the domestic law
in a procedural framework of a settlement agreement.
The High Court of Cassation and Justice rejected the request, relying mainly
on ratione temporis grounds. First of all, principles underlying Article 267 TFEU
were reminded and then the highest court in Romania found it met the criteria
required for a “court or tribunal of a Member State”; then, it also found out that it
was under the duty provided in Art. 267(3) TFEU, but it reminded the CILFIT
criteria, in order to state its margin in assessing if the preliminary question was
necessary and useful.
On the substance of its reasoning, the High Court held: “[...] Articles 41 and 47
of the Charter of Fundamental Rights do no have a direct bearing on the case,
taking into account that those comprise regulations very general in nature and that
there are analogous provisions in domestic law of Romania with full applicability.
These regulations are to be found in Romanian regulations and they are applied in
a constant and consistent manner by courts of Romania. Therefore, interpretation
and application of mentioned rules - Articles 41 and 47 of the Charter of
Fundamental Rights - can be adequately performed by courts of Romania, so that
there is no room for reasonable doubt liable to support the relevance of a
preliminary question on these provisions.
33 Tribunal Argeş, civil chamber, file No 1677/109/2010, civil judgment No 222/2011 of 23 June
2011, not reported.
34 High Court of Cassation and Justice, file No 2712/3/2006, resolution of 24 February 2009, not
reported.
Trends and patterns in preliminary references in Courts of Romania 107
In order to substantiate that the proposed preliminary questions are necessary
and useful, the appellant on points of law relied, as a public policy mean (as she
have not relied by her appeal on points of law on that mean within required
time-limit), on breaching the principle of availability and on the fact that the court
did not acknowledge the settlement of dispute, and also on Articles 304(5), 129 and
270-273 of the Code of civil procedure, trying therefore to link this new ground for
an appeal on points of law to Community law in order to enhance chances of
success concerning this mean understood as one of public policy and granted by
the court responsible with appeal on points of law. Yet, this new mean [of appeal
on points of law] will be subject to contradictory debates during the appeal on
points of law, according to domestic regulations that are very clear on that point
and, according to settled case-law, that will lead to deprive the proposed
preliminary questions of their relevance and necessity for solving the substance of
the appeal on points of law.”
The second point to reject that request concerned the scope ratione temporis of
the Charter, taking into account the relevant date of proceedings: “The Charter of
Fundamental Rights of the European Union was proclaimed by Parliament,
Council of the European Union and Commission during the European Council of
Nice on 7-11 December 2000. According to Article 51 of the Charter, it shall apply
to institutions and bodies of the European Union, with due respect to principle of
subsidiarity, and also to Member States, only when they will implement Union
law.
Concerning the legal nature of the Charter of Fundamental Rights of the EU,
regard should be paid to the fact that it does not yet have binding legal nature and
is not part of the sources of Community law. It appeared as a proclamation of
institutions of the Union and the decision concerning its legal status has been
postponed a certain period and it was finally included in the Treaty establishing a
Constitution for Europe, therefore it would obtain binding legal nature once this
Treaty will enter into force. Taking into account that this Treaty, which comprises
the Charter of Fundamental Rights, did not came into force, the Charter does not
have currently binding legal nature and is not part of the sources of Community
law. Therefore, in the instant case, the requirement imposed by Article 234 EC and
mentioned by the ECJ in Case 6/64 Costa v ENEL, according to which national
courts may ask the ECJ to interpret Community law is not fulfilled.”
Certain brief comments are needed here. As already stated, the main issue was
the scope ratione temporis of the Charter, and the reasoning of the court was
grounded, taking into account the appeal on points of law was pending in court at
the beginning of 2009 and the Charter (along with the Treaty of Lisbon) entered
into force on 1 December 2009. Interestingly, the resolution of the court mentioned
the former Constitutional Treaty, which was already dropped at that time
(February 2009). Yet, during that period, the ratification at what now becomes the
Treaty of Lisbon (signed in Lisbon on 13 December 2007) had been taking place.
108 DANIEL MIHAIL ŞANDRU, CONSTANTIN MIHAI BANU, DRAGOŞ ALIN CĂLIN
On the other hand, a second issue raised by this resolution concerns its
substance – i.e. the scope ratione materiae of the Charter. Even if the High Court
referred to Article 51 of the Charter, it did not draw any precise consequences
thereof. The court was of course right when it held that proposed preliminary
questions did not have any relevance and were not necessary to solve the main
proceedings. The court did not substantiate the potential inapplicability of Articles
41 and 47 of the Charter. Apparently, Article 41 was not applicable, as it concerns
institutions, bodies, offices and agencies of the Union, and not States (as such); the
provision was therefore immaterial for the instant case. The case is somewhat more
complex regarding Article 47 of the Charter. The High Court merged the two
provisions of the Charter, holding that “[…] Articles 41 and 47 […] do not have a
direct bearing on the case, taking into account that these comprise regulations very
general in nature and that are analogous provisions with full applicability within
domestic law of Romania. These regulations are to be found in Romanian
regulations and are applied in a constant and coherent manner by courts of
Romania. Therefore, interpretation and application of mentioned rules […] can be
adequately performed by courts of Romania, so that there is no room for
reasonable doubt liable to support the relevance of a preliminary question on these
provisions.” From a methodological point of view, this remark is not entirely
accurate, as according to CILFIT criteria, the point of reference should be EU law
and not domestic law (and more exactly the reference should acknowledge the
standard provided in Union law). Yet, the statement that Articles 41 and 47
“comprise regulations very general in nature and that are analogous provisions
with full applicability within domestic law of Romania.” remains intriguing, in
that it is liable to substantiate a rejection of a request of a party to make a
preliminary reference.35
Finally, the court should have to substantiate at length why these two
provisions (and more precisely Article 47) did not have any “direct” link to the
instant case, by relying explicitly on the general rule included in Article 51 of the
Charter. Perhaps, an assessment of the fact that circumstances of the case did not
have any link to Union law would have to be performed. It is debatable whether
the mentioned provisions of the Code of civil procedure would amount to a
measure of implementation of EU law. And a final question: where there any
rights conferred to the appellant on points of law that were derived from the EU
legal order?
35 Similar statements are to be found in other judgments delivered by courts of Romania. See, for
example, Court of Appeal Bucureşti, second chamber for criminal cases, file No 7998/2/2011, criminal
sentence No 501/F/02.11.2011, final by criminal decision no 686/12.03.2012 of the High Court of
Cassation and Justice, criminal chamber, both not reported; these judgments are discussed in Mihai
Şandru, Mihai Banu, Dragoş Clin, Procedura trimiterii preliminare. Principii de drept al Uniunii Europene
si experiente ale sistemului roman de drept, above, chapter 2.
Trends and patterns in preliminary references in Courts of Romania 109
iii) In an appeal on points of law concerning a civil fine (and more precisely
whether an enforceable title amounts to a positive obligation or an obligation to
transfer), Tribunalul Vaslui rejected a request of the appellant for an order for
reference to the Court of Justice36.
The appellant claimed that the court of first instance (judectorie) breached
Article 6(1) ECHR “by not enforcing or deferred enforcing of a judgment which
amounts to a breach of the right to a fair trial.” The request lodged by the appellant
for an order for reference concerned Article 6(1) ECHR, Articles 47(2) and 20 of the
Charter of Fundamental Rights.
The court rejected the request, finding that an answer of the Court of Justice
was not “relevant and useful in order to solve the main action” and also that “the
questions put forward [were] irrelevant to solve the case.” The court assessed both
the Charter and the ECHR system. Firstly, the court held that “[t]he Charter […] is
binding starting with December 2007 only on Community institutions, but not on
Member States37. It belongs to Community law of the EU (sic!), and the European
citizens enjoy a double system of protection of fundamental rights: the ECHR and
the Charter […].
The questions put forward by the appellant concerning interpretation of
Articles 47 and 20 of the Charter do not bear any relevance compared to the
subject-matter of the application.”
Secondly, “[c]oncerning interpretation of Article 6 ECHR, the court finds that
this Convention is not part of Community law.”
Thirdly, the court held also that: “[t]he Charter […] is part of the new Treaty of
Lisbon, both concerning acts and legislation of the European Union and of the
Member States of the European Union respectively.”
Finally, the court maintained that “provisions of the ECHR may not be subject
to questions in the framework of preliminary reference procedure provided in
[Article 267 TFEU].
Yet, assessing the questions proposed by the appellant concerning
interpretation of provisions of the Convention, the court finds that these are
inadmissible […].”
There is no doubt that there are certain similarities between the present case
and the one in which the above discussed resolution of 24 February 2009 of the
High Court of Cassation and Justice was delivered: both cases concerned the
fundamental issue of the scope of provisions of the Charter regarding proceedings
36 Tribunal Vaslui, civil chamber, file No 1181/244/2008, civil decision No 1559/R, 3 December
2008, not reported.
37 There is a double error here. On one hand, the Charter was proclaimed in December 2007 and
entered into force along with the Treaty of Lisbon (1 December 2009). Before this latter date, the
Charter did not have a binding legal nature. On the other hand, according to Article 51(1) of the
Charter, it is binding on the Member States when they are implementing Union law. The court
acknowledged nonetheless below that the Charter concerned also the Member States.
110 DANIEL MIHAIL ŞANDRU, CONSTANTIN MIHAI BANU, DRAGOŞ ALIN CĂLIN
involving regulations of civil procedure without a link to EU law. The reasoning of
the tribunal was short, and certain references mentioned above (starting with the
scope ratione temporis of the Charter and with discussing Article 51(1) thereof a.s.o.)
were absent. Nonetheless, the solution reached was of course well-grounded.
Finally, concerning again Article 51(1) of the Charter, regard should be taken that
according to the Court of Justice the limits related to this provision were not
altered once the Treaty of Lisbon entered into force, when, according to Article 6(1)
TEU, the Charter gained the same legal status as the Treaties38.
iv) Similar judgments, this time in the field of pension adjustments, were
rendered by resolutions of 26 October 201139 and 18 January 201240 respectively of
the Court of Appeal Bucureşti, but also by civil judgment No 1674 of 13 October
2011 of the Tribunal Olt41, all rejecting request for an order for reference.
These concerned „interpretation of Articles 2, 6 and 10 TEU, Article 128(2) of
the Treaty establishing the European Community (sic!) and Decision 2008/618/EC
on guidelines for the employment policies of the Member States:
1. Must a national court against whose decisions there is no judicial remedy
under national law bring the matter before the ECJ when actions are brought
before it that raise grounds of European Union that are interpreted differently in
similar cases, meaning in the instant case irrevocable decisions with contrary
solutions?
2. According to Article 15 of the Convention for the Protection of Human
Rights and Fundamental Freedoms, is the Romanian State under a duty to inform
the Secretary General of the Council of Europe, when it restricted the exercise of
two fundamental rights, taking into account that restrictions are a consequence of
the Memorandum of Understanding between the European Community and
Romania and of the Loan Agreement between the European Community and
Romania, concluded in 2009? Does the Romanian State comply with the duty to
inform the Council of Europe on occurrence of exceptional circumstances by the
fact that it is part of the Memorandum of Understanding between the European
Community and Romania and of the Loan Agreement between the European
Community and Romania, concluded in 2009? Are political statements exceptional
circumstances in case these are not to be found in the Memorandum of
Understanding between the European Community and Romania or in the Loan
Agreement between the European Community and Romania?
38 Order of 1 March 2011, Case C-457/09 Chartry [2011] ECR I-819.
39 Court of Appeal Bucureşti, seventh chamber for civil, labour and social security disputes, file
No 46937/3/2010, not reported.
40 Court of Appeal Bucureşti, seventh chamber for civil, labour and social security disputes, file
No 42780/3/2011, not reported.
41 Tribunal Olt, first chamber for civil cases, file No 3513/104/2011, not reported.
Trends and patterns in preliminary references in Courts of Romania 111
3. Must provisions of Articles 6(2) TEU, 216(2) TFEU and of the Protocol on
Article 6(2) TEU concerning the accession of the Union to the European
Convention for the Protection of Human Rights and Fundamental Freedoms be
interpreted that a mandatory measure requiring suspension of pension rights, like
that provided by Articles 17-26 of Law No 329/2009, amounts to a discriminatory
measure having equivalent effect to nationalization, going thus against Articles 15,
17 and 21 of the Charter of Fundamental Rights of the European Union?
4. If the answer to previous question is negative, then must be admitted that
the measure of suspending pension payment is non-discriminatory, justified
objectively and reasonably by a legitimate objective, is proportional to objective
pursued and does not contradict in any way the declarations annexed to the Final
Act concerning the Charter of Fundamental Rights of the European Union and to
the Declaration concerning Article 6(2) of the Treaty on European Union and the
ECHR case-law, even if it is liable to reach a result contrary to the ECHR case-law?
5. If the answer to third question is negative and the answer to forth question
is affirmative, must be admitted that the fundamental rights and freedoms are
concurring? In the instant case, the freedom to choose an occupation and
employment is subject to yielding the right of ownership over the pension?”
The Court of Appeal Bucharest held that, „taking into account the mentioned
regulations, quoted also by this Court, it should be noted that extensive arguments
that were mentioned in application by appellant do not belong strictly to
interpretation of European Union law, but aim to obtain an assessment from the
European judge on national legislation, issue that is beyond the jurisdiction of the
ECJ. Yet, Law No 329/2009 was not enacted in order to implement any
Community (sic!) rule liable to pose a duty on the Romanian legislator to comply
with primary or secondary law of the European Union, and this conclusion
concerns also the arguments of the appellant concerning the compliance with the
Charter of Fundamental Rights of the European Union (Article 51 of the Charter).
As regards the Council Decision (2008/618/EC) on guidelines for the employment
policies of the Member States, the appellant has not pointed clearly what
provisions thereof should be interpreted.”42
Therefore, in the reasoning of the court three distinct directions are to be
found: even if the first statement is somehow a „conventional” one, meaning an
acknowledgment of a division of competences between courts in preliminary
ruling procedure, it fails to describe exactly the relationship between EU law and
the ECHR. The second argument underlined correctly the lack of a link of the
relevant law to EU law (the law „was not enacted in order to implement any
Community rule”). The last argument emphasized the vague nature of the position
expressed by the party to proceedings which requested an order for reference. Yet,
this is an illustration of the principle of availability.
42 See also the Court of Appeal C.A. Bacu, first chamber for civil cases, resolution of 25 April
2012, file No 980/110/2011, not reported.
112 DANIEL MIHAIL ŞANDRU, CONSTANTIN MIHAI BANU, DRAGOŞ ALIN CĂLIN
v) By resolution of 20 April 201243, Tribunal Timiş rejected a request for a
reference to the Court of Justice in order that the latter to assess the potential
applicability of „provisions of Article 15(3) of the European Convention on Human
Rights, under which the Government of Romania is under a duty to notify the
General Secretary of the Council of Europe on the intention to enact the abusive
and discriminatory measure of reductions in remuneration and also to state the
time-limit provided for its applicability.” Here, the same issue discussed above is
to be found.
The court judged that a reference to the Court was not necessary, because the
latter „is not able to provide, in the framework of a request for a preliminary
decision, guidance concerning needed interpretation in order the national court to
establish whether the national legislation is in compliance or not with fundamental
rights, whose observance is ensured by the Court, including those resulted from
the European Convention on Human Rights (Judgment of 29 May 1997, Case
C-299/95, Kremzow v Austria, Order of the Court of 3 October 2008, Case C-287/08,
Crocefissa Savia and Others).” Yet, such reasoning lacks precision in that it does not
state the relationship between domestic law and EU law.
vi) By resolution of 30 January 201244, the High Court of Cassation and Justice
rejected a request for making an order for reference to the Court of Justice; the
proposed question was the following: “Does the Criminal Law Convention on
Corruption, adopted at Strasbourg on 27 January 1999, include in its personal
scope liable for trade in influence the institution/person of a lawyer?” In arguing
this request, the premise was supported by the fact that the essence of charges
brought against the appellant-defendant T.S. is confined to the concept of
corruption offence, and the fundamental element for qualification of his actions
under the Criminal Code is based on his capacity of lawyer. In relation to the object
of the Criminal Law Convention on Corruption, adopted at Strasbourg on 27
January 1999, ratified by Romania by Law No 27/2002, more precisely the active
bribery in the private sector, there is a manifest inconsistence between the object of
Convention, meaning the duty of the Contracting States to establish legal
mechanisms able to fight corruption in public and private sectors, and the object of
Law No 78/2000 on preventing, finding and criminalizing corruption activities,
which went beyond Article 20(2) of the Constitution of Romanian in terms of
criminalizing.
Taking into account the particular circumstances of the case, it was held that at
the relevant time of the first instance proceedings, 31 January 2011, the provisions
of Article 39(8) of Law No 51/1995 for the organization and practice of the lawyer’s
43 Tribunal Timiş, chamber for administrative and tax disputes, file No 532/59/2011, not
reported.
44 High Court of Cassation and Justice, criminal chamber, file No 1585/2/2010, not reported;
available at http://www.scj.ro/SP%20rezumate%202012/SP%20inch%20r%2030%20ian%202012.htm.
Trends and patterns in preliminary references in Courts of Romania 113
profession, republished, regulated a case for exemption the criminal responsibility,
fully applicable also for the appellant-defendant, which is provided in Article
37(61) of the mentioned Act (prior to republication): “The lawyer shall not be held
criminally liable for recommendations and professional opinions that he
communicate to his client and for legal acts proposed to his client, that are
followed by acts provided in criminal law, committed by the client. The present
paragraph shall not be applicable in case of offences provided by the Criminal
Code in Articles 155-173, 174-192, 197-204, 205-206, 236-244, 273-277, 279-281,
303-307, 308-313, 314-316, 317-330, 331-347, 348-352, 353-355, 356-361.”
Later, the mentioned case for exemption the criminal responsibility was
reprised by Article 39(8) of Law No 51/1995 for the organization and practice of
the lawyer’s profession, republished in Monitorul Oficial No 98 of 7 February 2011,
and it was subsequently repealed by the Government Emergency Ordinance No 10
of 14 February 201145.
Assessing that the above mentioned sequence in criminal legislation that has
led to excluding the case for exemption criminal responsibility was liable to
insecurity concerning the possibility of holding a lawyer as criminally liable for
committing the offence of trade in influence, it was though a preliminary ruling of
the Court of Justice of the European Union clearing if, under the Criminal Law
Convention on Corruption, the lawyer might be active subject for the offence of
trade in influence was necessary.
The High Court of Cassation and Justice stated the following: “Whether,
concerning the locus standi (sic!), the High Court of Cassation and Justice fulfils
the requirement of a national court having jurisdiction to refer to the Court of
Justice of the European Union, and also the requirement that a preliminary
reference should be made in proceedings pending the national court, the
requirement concerning the subject-matter of the preliminary reference in
relationship with the general competence of the Community (sic!) court, regulated
by Article 267 TFEU, is not fulfilled.” Then, the High Court reminded Articles 267
TFEU and 19(3)(b) TEU and held that “[t]he above mentioned regulation
establishes that the subject-matter of a request for a preliminary ruling concerns
exclusively interpretation or validity of European Union law, and the Court of
Justice of the European Union has no jurisdiction to answer preliminary questions
that fall outside the scope of Community (sic!) law.
Therefore, the Court of Justice of the European Union may be referred only for
establishing the meaning of acts of the European Union, being immaterial their
sources.
For this purpose, Article 288 TFEU establishes the faculty of making a request
for a preliminary ruling for interpretation of European Communities/Union
Treaties (the original and revised Treaties, annexes and protocols), legal acts
45 Monitorul Oficial No 113 of 14 February 2011.
114 DANIEL MIHAIL ŞANDRU, CONSTANTIN MIHAI BANU, DRAGOŞ ALIN CĂLIN
included in secondary law of the European Union (regulations, directives and
decisions respectively, adopted by Community institutions in pursuing their
conferred powers by founding Treaties, in order to attain their purpose),
international agreements concluded by the European Union (international
agreements concluded by the Council under Article 218 TFEU or association
agreements concluded under Article 217 TFEU) and statutes of bodies established
by act of Council, if these statutes provide such rules.
Also, even if it was provided in principle that the interpretation of a
preliminary ruling of the Court of Justice of the European Union is not subject to a
preliminary reference, in practice, there were instances where the Community
court gave such rulings.
Equally, the jurisdiction of the Court of Justice of the European Union to
render a preliminary ruling concerning validity of legal acts relates exclusively to
legal rules adopted by legal acts of the European Union, and the Court has no
jurisdiction to perform a review of legality of domestic law rules.
From that point of view, concerning the instant case, it should be noted that by
a request brought at sitting of 16 January 2012, the appellant-defendant T.S.
requested an order for reference to the Court of Justice of the European Union
concerning interpretation of the Criminal Law Convention on Corruption, adopted
in Strasbourg on 27 January 1999, regarding the issue if the lawyer is liable to be
the active subject for the offence of trade in influence.
The Criminal Law Convention on Corruption, adopted in Strasbourg on 27
January 1999, ratified by Romania through Law No 27/2002, is a international legal
act issued by the Council of Europe in applying the Programme of Action against
Corruption adopted by the Committee of Ministers of the Council of Europe in
November 1996, following the recommendations of the 19th Conference of
European Ministers of Justice (La Valetta, 1994), having as parts the Member States
of the Council of Europe.
This legal act is not a source of Community (sic!) law, because the Council of
Europe does not take part at the formal decision-making process established by
Community Treaties, its role being confined to exclusively express a political point
of view. Moreover, the duty to implement the Community policy belongs to
Community institutions, especially to the Council of the European Union.
As the Council of Europe is not an institution of the European Communities or
of the European Union, decisions and acts issued by this institution are not
adopted following the procedure provided by Community Treaties, because they
are not acts of an institution of the Community.
As these legal acts do no entail legal effects of a Community legal act, the legal
acts issues by the Council of Europe – in the instant case, the Criminal Law
Convention on Corruption, adopted in Strasbourg on 27 January 1999, do not fall
within the judicial review of the Court of Justice of the European Union and
therefore they are not able to be covered by a preliminary reference concerning
interpretation and validity under Article 267 TFEU.
Trends and patterns in preliminary references in Courts of Romania 115
Acknowledging therefore that the subject-matter of the preliminary reference
proposed to the court does not concern a Community rule, the High Court of
Cassation and Justice holds the request to make an order for reference to the Court
of Justice of the European Union, put forward by the appellant-defendant T.S. is
not admissible, and that finding make useless the analysis concerning relevance
and conclusiveness of the preliminary question proposed for the substance of
proceedings pending before the national court.
Likewise, it should be noted that even if manner the proposed question is
drafted aims to obtain a preliminary clarification from the Court of Justice of the
European Union, and that aims the interpretation of the Criminal Law Convention
on Corruption adopted in Strasbourg on 27 January 1999 concerning the issue of
lawyer’s criminal liability for committing trade in influence, the real purpose of the
appellant-defendant is to obtain a ruling on consistency of the national law with
the above mentioned act, assessment that does not fall within the jurisdiction of the
review performed by the Court of Justice.”.
vii) The criterion of lack of a rule of Union law likely to be implemented in
domestic law is relevant also in the next judgment rendered in an appeal on points
of law.
By decision No 223 of 16 February 201246, the Court of Appeal Bacu rejected a
request for an order for reference. The three proposed preliminary questions
concerned issues related to objection of illegality concerning individual
administrative acts in administrative proceedings. More specific, these questions
sought to establish the relationship between this remedy and the principle of legal
security, “provided in Article 263 TFEU”. The third question was drafted as
follows: “Does the principle of legal certainty preclude national legislation when
the latter is relied in order to protect human rights and liberties, as provided in the
Convention for the Protection of Human Rights and Fundamental Freedoms and
the Charter of Fundamental Rights of the European Union?”
The Court of Appeal Bacu held that these questions “does not include any
specific element under which the provisions of the national legislation mentioned
by the appellant might be assessed as implementing Union law, circumstance in
which a reference to the Court of Justice of the European is not admissible.”
viii) Rejection of a request for an order for reference in the framework of a European
arrest warrant
The following example is that of a case47 having as subject-matter a request
made by a court of another Member State concerning execution of a European
46 Court of Appeal Bacu, second chamber civil, administrative and tax disputes, file No
6904/110/2010/a1, not reported.
47 Court of Appeal Iaşi, chamber for criminal cases and disputes concerning children, file No
725/45/2010, sentence of 26 November 2010, not reported.
116 DANIEL MIHAIL ŞANDRU, CONSTANTIN MIHAI BANU, DRAGOŞ ALIN CĂLIN
arrest warrant against an arrested person, for surrendering that person for the
purpose of the investigation in that Member State for offences provided in the
warrant. The court of Romania granted the request of the judicial authorities of the
issuing Member State, ordering the surrender of the requested person to the latter
State.
The requested person lodged an application for an order for reference, relying
on Articles 19(3) TEU and 267 TFEU “read in conjunction with” Article 148(2) of
the Constitution of Romania48, request alleging breaching of his right of defence,
because “the European arrest warrant is executed without the court of Romania to
be able to verify whether this warrant is legal and grounded.” The presumption of
legality concerning a warrant, established by Law No 302/2004, modified and
supplemented by Law No 224/2006, would encroach the presumption of
innocence, because the warrant is issued in absentia and the requested person
“would not be able to request evidences in his defence or in order to support his
means of defence.” Manifest breaches of rights provided by the Charter of
Fundamental Rights of the European Union and by Article 6 of the Convention for
the Protection of Human Rights and Fundamental Freedoms were also claimed.
In the sentence delivered, the court assessed also the request for a preliminary
reference to the Court of Justice. The proposed question concerned the fact
whether the requested person under the European arrest warrant enjoyed the
presumption of innocence provided by Article 48 of the Charter of Fundamental
Rights of the European Union. The request for a preliminary reference was rejected
and the court provided the following arguments. First, the court mentioned Article
267 TFEU. Second, the main argument employed to reject the request was that
“[i]n the instant case, the court considered a decision of the European Court of
Justice was not needed, taking into account especially that the sentence delivered might
be challenged by an appeal on point of law” (emphasis added).
Third, the reasoning was built upon the principle of “mutual recognition and
trust”:
“Having also regard that according to Article 77(1) of Law No 302/2004, as
amended, the European arrest warrant is a judicial decision by which a responsible
judicial authority of a Member State of the European Union requests arresting and
surrendering of a person to another Member State, for the purpose of a criminal
investigation, judging and execution of a sentence.
The European arrest warrant is executed under the principle of mutual
recognition and trust, according to provisions of the Council Framework Decision
48 Apparently, this formulation is among the few of its kind (perhaps the only one so far), in
mentioning Article 148 of the Constitution of Romania as legal basis for a request for an order for
reference. This latter provision – Article 148(2) – reads as follows: “Following the accession [of
Romania to the European Union], provisions of the founding Treaties of the European Union and
other binding Community rules shall have priority over conflicting provisions of domestic legislation,
under conditions provided in the Act of Accession.”
Trends and patterns in preliminary references in Courts of Romania 117
2002/584/JHA of 13 June 20249, Framework Decision that refers to the duty of the
Member States to comply with fundamental rights and general principles of law,
as provided by Article 6 TEU.
Article 90(6) of the same Law provides that the requested person may lodge an
opposition against his surrender only in case of an error concerning his identity or
of a ground for rejecting the execution of the European arrest warrant and in
support of this opposition concluding evidence are needed.
Rules applicable to the institution of European arrest warrant rely on a
fundamental principle for judicial cooperation between Member States of the
European Union that made declarations concerning the application of the Council
Framework Decision of 13 June 2002 on the European arrest warrant and the
surrender procedures between Member States, namely that of the mandatory
nature of execution of European arrest warrants.”
It should be noted that the court did not approach directly the issue of
breaching the right of defence of the requested person, as that issue was judged as
being lacked of relevance in order to solve the instant case. The court confined
itself to state that under the Framework Decision the Member States are under a
duty to comply “with fundamental rights and general principles of law, as
provided by Article 6 TEU.”50
4. Case C-396/11, Radu. The preliminary reference made by the court of
Romania, the judgment of the Court of Justice and the subsequent decision of
the referring court
Another court of Romania - Court of Appeal Constana - made a reference to
the Court of Justice concerning the European arrest warrant51, reference
comprising six questions.
The prosecutor’s office by the Court of Appeal Constana brought before that
court the request made by judicial authorities of the Federal Republic of Germany
concerning surrender of a requested person (Radu Ciprian Vasile). The application
concerned the execution of certain European arrest warrants. The offences
concerning the requested person were acts of aggravated robbery. On the other
hand, the court held that the double criminality rule was fulfilled. The requested
person did not consent to his surrender and did not renounce his entitlement to the
speciality rule. The High Court of Cassation and Justice quashed the criminal
sentence and referred the case back to the court of first instance in order the latter
to re-examine the requests for surrender. In its order for reference (issued on 18
May 2011, and received at the Court registry on 27 July 2011), this latter court of
49 Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant
and the surrender procedures between Member States, OJ L 190, 18.7.2002, 1.
50 Cf. also recital (12) of the Framework Decision.
51 Court of Appeal Constana, chamber for criminal cases and children and family disputes, file
No 1230/36/2009, resolution of 18 May 2011, not reported.
118 DANIEL MIHAIL ŞANDRU, CONSTANTIN MIHAI BANU, DRAGOŞ ALIN CĂLIN
first instance (Court of Appeal Constana) approached the following “issues for
interpretation”:
“1. The issue of express incorporation of fundamental rights included in the
Charter and the Convention into Treaties and the issue of their legal nature in
relation to another legal act different from Treaties, a Framework Decision issued
previously to amendment of the Treaties respectively.
2. The issue of the legal stand of judicial authority of the State executing a
European arrest warrant, in the light of the principle of mutual recognition of
judicial decisions between Member States of the European Union, more precisely
whether the action of this authority to deprivation of liberty and forcible surrender
of the requested person amounts to a direct and unmediated interference on the
part of the State executing the warrant, from the point of view of enjoying
fundamental rights of the Convention and the Charter.
3. When the State executing the warrant performs a direct interference with
these rights, the interpretative issue concerning whether the State executing the
warrant, performing an interference with these fundamental rights, is or not under
a duty to satisfy the requirements of necessity in a democratic society and of
proportionality in relation to the objective actually pursued, this latter requirement
being linked to the principle of subsidiarity provided for by Treaties.
4. If the answer to the third issue is positive, the clarification of the exhaustive
nature of cases of refuse to surrender [the requested person] and execute a
European arrest warrant, based on a decision of the issuing judicial authority,
consisting in provisional deprivation of liberty for the requested person, in order to
carry the criminal investigation to establish the factual circumstances meant to
keep or drop the charges, prior to their express formulation before a court, is
necessary.
5. The consequential issue of the faculty to refuse the execution of the
European arrest warrant on ground of failure to transpose fully, partially, different
or deficient and also that of failure to comply with the condition of reciprocity in
implementing of the Framework Decision by the issuing State.
6. The issue of conformity of domestic law for transposition of the Framework
Decision, tasking into account its interpretation, in relation to incorporation of the
Charter and the Convention into Treaties, taking into account this Decision and the
legal rules contained in the Charter and the Convention.”
The referring court stated its position concerning these issues and contented
that the answer was positive for all these questions:
“1. After the provisions of the Charter and the Convention that were expressly
mentioned in the request were included in the Treaty on European Union, the legal
rules comprising fundamental rights and freedoms and procedural guarantees
concerning a natural person requested to be surrendered under a European arrest
warrant issued by the issuing State, under a decision of provisional deprivation of
liberty prior to a final decision of conviction, are provisions of primary Community
Trends and patterns in preliminary references in Courts of Romania 119
(sic!) law under which other legal rules that are not included in the Treaties and are
issued by the Union bodies in application of the Treaties should be interpreted.
2. The judicial authority of the State executing a European arrest warrant
which is not grounded in a judicial decision for conviction performs a direct and
unmediated interference with the exercise of fundamental rights provided for by
the Charter and the Convention, interference that should be subjected to
requirements and guarantees provided for by the Charter and the Convention,
included that of necessity of interference in a democratic society, of a specific
objective and of proportionality in relation to the objective actually pursued.
3. When the interference that is requested [by the issuing State] to be
performed with the exercise of fundamental rights provided for by the Charter and
the Convention does not comply with the cumulative requirements for performing
it, the judicial authority of the State of execution may refuse the surrender relying
on that reason.
4. The duly and full transposition of the Framework Decision into the domestic
law, as interpreted and applied in relation with legal rules of the Treaty under
which it was issued or with rules having higher legal status, amounts to a specific
requirement that may be taken into account when a judgment concerning the
request for surrender is rendered, and the requirement of mutual recognition of
judicial decisions is subject to duly compliance with duties derived from the
membership to the European Union and the primary legal rules contained in the
TEU.
5. In the light of the foregoing, the domestic legislation implementing the
Framework Decision may be assessed as inadequate, because it is liable to infringe
the TEU from the point of the Union membership to the Convention and also
concerning the fundamental rights provided for by the Charter, by a formal
application, confined to the cases expressly provided for the refuse to surrender.”
The order for reference contained six preliminary questions:
“(1) Are Articles 5(1) [of the ECHR] and 6 [of the Charter], read in conjunction
with Articles 48 and 52 [of the Charter], with reference also to Article 5(3) and (4)
and Article 6(2) and (3) of [the ECHR], provisions of primary [European Union]
law, contained in the founding Treaties?
(2) Does the action of the competent judicial authority of the State of execution
of a European arrest warrant, entailing deprivation of liberty and forcible
surrender, without the consent of the person in respect of whom the European
arrest warrant has been issued (the person whose arrest and surrender are
requested) constitute interference, on the part of the State executing the warrant,
with the right to individual liberty of the person whose arrest and surrender are
requested, which is authorised by European Union law, pursuant to Article 6 TEU,
read in conjunction with Article 5(1) of the [ECHR], and pursuant to Article 6 of
the [Charter], read in conjunction with Articles 48 and 52 thereof, with reference
also to Article 5(3) and (4) and Article 6(2) and (3) of the [ECHR]?
120 DANIEL MIHAIL ŞANDRU, CONSTANTIN MIHAI BANU, DRAGOŞ ALIN CĂLIN
(3) Must the interference on the part of the State executing a European arrest
warrant with the rights and guarantees laid down in Article 5(1) of the [ECHR] and
in Article 6 of the [Charter], read in conjunction with Articles 48 and 52 thereof,
with reference also to Article 5(3) and (4) and Article 6(2) and (3) of the [ECHR],
satisfy the requirements of necessity in a democratic society and of proportionality
in relation to the objective actually pursued?
(4) Can the competent judicial authority of the State executing a European
arrest warrant refuse the request for surrender without being in breach of the
obligations authorised by the founding Treaties and the other provisions of
[European Union] law, by reason of a failure to observe all the cumulative
conditions under Article 5(1) of the [ECHR] and Article 6 of the [Charter], read in
conjunction with Articles 48 and 52 thereof, with reference also to Article 5(3) and
(4) and Article 6(2) and (3) of the [ECHR]?
(5) Can the competent judicial authority of the State executing a European
arrest warrant refuse the request for surrender without being in breach of the
obligations authorised by the founding Treaties and the other provisions of
[European Union] law, on the ground that the [Member] State issuing the
European arrest warrant has failed to transpose or fully to transpose or has
incorrectly transposed (in the sense that the condition of reciprocity has not been
satisfied) [Framework Decision 2002/584]?
(6) Is the domestic law of Romania, a Member State of the European Union – in
particular Title III of Law No 302/2004 – incompatible with Article 5(1) of the
[ECHR] and Article 6 of the [Charter], read in conjunction with Articles 48 and 52
thereof, with reference also to Article 5(3) and (4) and Article 6(2) and (3) of the
[ECHR], to which Article 6 TEU refers, and have the above provisions properly
transposed into national law [Framework Decision 2002/584]?”
In its judgement rendered on 29 January 2013, the Court of Justice ascertained
inter alia that it was called to interpret Framework Decision 2002/584 and certain
provisions of the Charter in an actual dispute concerning the execution of several
European arrest warrants issued by the German authorities for the purposes of
prosecuting Mr Radu on criminal charges52. The Court of the Union rephrased the
preliminary questions (except the fifth), finding that it had to establish whether
Framework Decision 2002/584, read in the light of Articles 47 and 48 of the Charter
and of Article 6 of the ECHR, must be interpreted as meaning that the executing
judicial authorities could refuse to execute a European arrest warrant issued for the
purposes of conducting a criminal prosecution on the ground that the issuing
judicial authorities did not hear the requested person before that arrest warrant
was issued53.
52 Judgment in case C-396/11 Radu, above, para. 25.
53 Ibid., para. 31.
Trends and patterns in preliminary references in Courts of Romania 121
The Court of the Union stated that the fact that the European arrest warrant
had been issued for the purposes of conducting a criminal prosecution, without the
requested person having been heard by the issuing judicial authorities, did not
feature among the grounds for non-execution of such a warrant as provided for by
the provisions of Framework Decision 2002/58454. Also, the observance of Articles
47 and 48 of the Charter does not require that a judicial authority of a Member
State should be able to refuse to execute a European arrest warrant issued for the
purposes of conducting a criminal prosecution on the ground that the requested
person was not heard by the issuing judicial authorities before that arrest warrant
was issued55. The Court of Justice subsequently appealed to a ground of efficiency
of the system brought by the European arrest warrant: “[…] an obligation for the
issuing judicial authorities to hear the requested person before such a European
arrest warrant is issued would inevitably lead to the failure of the very system of
surrender provided for by Framework Decision 2002/584 and, consequently,
prevent the achievement of the area of freedom, security and justice, in so far as
such an arrest warrant must have a certain element of surprise, in particular in
order to stop the person concerned from taking flight.”56 And the answer of the
Court of Justice was that under Framework Decision 2002/584 the executing
judicial authorities cannot refuse to execute a European arrest warrant issued for
the purposes of conducting a criminal prosecution on the ground that the
requested person was not heard in the issuing Member State before that arrest
warrant was issued57.
By a resolution of 1 February 2013, the referring court resumed proceedings in
the main action. Finally, the decision was rendered by criminal sentence No 26/P
of 11 March 201358. In sum, the court rejected all four applications to surrender the
requested person. The court recalled arguments of the Court of Justice concerning
the legal status of the Framework Decision 2002/584 and its relationship with the
Charter (referring more precisely to Article 1(3) of the former). Then, the court
stated: “On the occasion of assessing the request to make a preliminary reference it
emerged clearly that the judicial authority executing a European arrest warrant
interfere directly with fundamental rights of the requested person, provided by the
European Charter of Rights (sic!) and the European Convention on Human Rights
(ECHR).
This premise requires that the judicial authority of the requested State should
carry out its own analysis concerning the way the fundamental rights are complied
with on occasion on a application to execute a European arrest warrant, and it is in
a position to refuse, arguably in exceptional cases, to surrender the requested
54 Ibid., para. 38.
55 Ibid., para. 39.
56 Ibid., para. 40.
57 Ibid., para. 43.
58 Not reported.
122 DANIEL MIHAIL ŞANDRU, CONSTANTIN MIHAI BANU, DRAGOŞ ALIN CĂLIN
person and to execute the European arrest warrant for other reasons that those
exhaustively listed in Framework Decision and in domestic rule transposing this
Decision, when the reasoning rests on protecting fundamental rights and limiting
the interference with their exercise, save where it [the interference] it is provided
by law, is necessary in a democratic society and is proportional in relation to the
objective pursued.
In the instant case, the Court of Appeal Constana judges that, taking into
account the specific circumstances of the case, the refuse to surrender under the
four European arrest warrants is substantiated on two grounds:
Regarding the European arrest warrant issued by the prosecutor’s office in
Bielefeld, taking into account the circumstance that, by applying the principle of
personality of criminal law, the Romanian judicial authorities performed their own
investigation and initiated proceedings before the court that rendered a final
decision convicting the defendant to three years in prison, in case bearing
relevance the principle “non bis in idem”, and therefore the Romanian requested
national may not be surrendered for a criminal investigation in the State requested
concerning the same fact that were subjected to proceedings in the Romanian State.
Concerning the refusal to surrender for the other three European arrest
warrants, the court finds that in the instant case there is not interference with the
rights to personal freedom and family life of the requested person, R.C.V.,
convicted by final decision in Romania, because, in this case, the interference
would be disproportionate to objective pursued. Specifically, the Romanian court
finds that the objective that could be pursued in executing the European arrest
warrant would rest in assessing of the evidence concerning the requested person
during the criminal investigation in order to institute proceeding for criminal
responsibility, according to domestic German law, bringing the matter to court in
relation to specific indictments.
The application for surrender do not substantiate specifically whether the
surrender of requested person supports to supplement the evidences by the
German criminal investigation body or what is the reason those [applications]
were made after a long period since the offences occurred, and also what is the
reason why during proceedings carried in Romania in order to execute the
European arrest warrant evidences likely to demand the presence of the defendant
were not assessed, for example by lodging to the Romanian judicial bodies a
request for judicial assistance or direct requests.
From the wording of requests to surrender the specific need of the requested
person and the way that presence would help to solve proceedings by final
decision of German judicial authorities are not apparent.
Moreover, as it comes out from the notes issued by the requesting judicial
authorities, those have previously expressed their opinion meaning they were
contemplating the option of yielding the application to surrender.
Trends and patterns in preliminary references in Courts of Romania 123
More specifically, it is acknowledged that the facts concerned by the
indictment were committed on 10 August 2011, 19 November 1999, 24 July 2001
and 21 June 2001 respectively, and in the instant case 12 year have passed from the
date the last acts were committed and therefore the disproportion between the
objective pursued by judicial authorities of the requested State and the interference
with the exercise of fundamental rights, [the latter – the interference being] liable to
be performed by the Romanian court in its capacity of judicial authority for
execution the European arrest warrants, becomes manifest.
Both the time lapsed and the circumstance that the defendant is already
serving a conviction for committing one of the alleged offences in a prison located
near his family, with whom he has closed relations, lead to the conclusion that the
objective immediately pursued, namely that of engaging the criminal
responsibility of the requested person, could be better achieved by carrying
criminal proceedings in the country of which he is a national and in where he
reside, these circumstances being supported also by the fact that proceedings were
likely to take place in a shorter time-limit in front of Romanian courts, under the
principle of personality of criminal law, ensuring therefore both the requirement of
defence and of preserving the public policy and in the same time carrying
proceedings within a legal order familiar to the defendant, where he is able to
effectively defend and preserving also his family relations.”
5. Conclusion. A provisional assessment
From a historical point of view, a first major wrong reference to EU law where it
was obviously inapplicable was made by the Constitutional Court itself. In Decision
No 568/200659, the Constitutional Court took note of the fact that one plea consisted
in disregarding the Recommendation (2002)2 on access to official documents,
adopted by the Committee of Ministers of the Council of Europe, and also in
disregarding provisions of the Chapter 2 of the Charter of Fundamental Rights of the
European Union60 (hereinafter “the Charter”) concerning the freedom of
information, and that plea was ungrounded. “In order to apply provisions of Article
148 of the Constitution, the process of accession of Romania to the European Union
has to be completed, and therefore at the material time the present decision is
rendered a potential disagreement between the cited [Romanian] legislation and
provisions of relevant international documents cannot be reviewed.”
Later, in Decision No 588/200761, the Constitutional Court held that “neither
criticism concerning Recommendation No (94)12 of the Committee of Ministers of
the Council of Europe, adopted on 13 October 1994 at its 516th meeting of State
Secretaries62 is grounded. Yet, [...] this type of Community acts (sic!) are legal
measures that allow European Union institutions to inform Member States on their
59 Monitorul Oficial No 890 of 1 November 2006.
60 In fact, at that time, in the version included in the former “Constitutional Treaty”, Title II –
Article II-71, now Title II – Article 11.
61 Monitorul Oficial No 581 of 23 August 2007.
62 Recommendation (94) 12 concerns the independence, efficiency and role of judges.
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
repealed).
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.