Dragoș Călin (Judge at the Bucharest Court of Appeal and Co-President of the Romanian Judges' Forum Association)
The judgments of the Court of Justice of the European Union regarding the rule of law and the serious fraud against the financial interests of the European Union appear to have been optional for the Romanian courts, and a new interpretative decision of the High Court of Cassation and Justice – Panel for the Clarification of Certain Points of Law in Criminal Matters, Decision No 37/2024, binding erga omnes, is the last proof of this fact.
For qualified researchers, the case of the Constitutional Court of Romania is well known. By Decision No 390/2021, the Constitutional Court of Romania created a ‘brick wall’ between the national courts and the CJEU, in order to maintain the applicability of national legislation contrary to the judgment of the CJEU in Joined Cases C-83/19, C-127/19, C-195/19, C-291/19, C-355/19 and C-397/19, Asociația Forumul Judecătorilor din România and Others, by requiring national ordinary judges not to analyse the conformity of a national provision, already found to be constitutional by a decision of the Constitutional Court, in the light of provisions of European Union law.
However, the Constitutional Court of Romania refrained from counteracting the subsequent ruling of the Court of Justice in Case C-430/21, RS, which sanctioned all the logic assumed by the national court, finding that no constitutional court of a Member State can, on the basis of its own interpretation of provisions of EU law, validly rule that the CJEU delivered a judgment that goes beyond its jurisdiction and therefore refuse to give effect to a preliminary ruling by the CJEU.
Although the Constitutional Court of Romania has not yet delivered any case-law solution similar to Decision No 390/2021, it indicated on 9 November 2021 that it would not amend the previous decision.
This sovereign discourse of the Constitutional Court of Romania is now taken over by the High Court of Cassation and Justice, which is again a fiercely defender of its own Decision No 67/2022, its arguments being considered, after thorough analysis, to be contrary to the jurisdiction of the European Union by the judgment of the Court of Justice from 24 July 2023 in Case C-107/23 PPU [Lin] and by the orders of 9 January 2024 in Cases C-75/23 and C-131/23.
By these judgments, CJEU established that EU law must be interpreted as meaning that the courts of that Member State are required to disapply a national standard of protection relating to the principle of the retroactive application of the more lenient criminal law (lex mitior) which makes it possible, including in the context of appeals brought against final judgments, to call into question the interruption of the limitation period for criminal liability in such cases by procedural acts which took place before such a finding of invalidity.
Contrary to the national standard of protection relating to the forecast of criminal law, which is limited to neutralising the effect of procedural acts which are drawn up during the period from 25 June 2018, the date of publication of Decision No 297/2018 of the Constitutional Court of Romania, to 30 May 2022, the date on which Emergency Ordinance No 71/2022 entered into force, the national standard of protection relating to the principle of the retroactive application of the more lenient criminal law (lex mitior) decided by the High Court of Cassation and Justice in its Decision no. 67/2022, binding erga omnes, permitted, at least in certain cases, the neutralisation of the interrupting effect of procedural acts which were produced even before 25 June 2018 but after the entry into force of the Criminal Code on 1 February 2014, that is to say, during a period of more than four years.
The European standard for the protection of human rights was taken into account by the very preliminary ruling of the Court of Justice (see para.100 and seq. in case C-107/23 PPU [Lin]). According to Article 52 (3) of the Charter of Fundamental Rights of the European Union, their purpose and scope are the same as those laid down by the European Convention for the Protection of Human Rights and Fundamental Freedoms.
Furthermore, the ECtHR applies the so-called Bosphorus presumption, according to which the protection of fundamental rights provided within the EU system is at least equivalent to that provided for in the European Convention on Human Rights, unless it is shown to have been manifestly deficient.
A number of criminal panels of the High Court of Cassation and Justice have not been able to support the situation and have begun to develop case-law contrary to the judgment of the Court of Justice of the European Union, followed by a few other national courts, with the aim of removing alleged discrimination or unequal legal treatment, by relying on grounds of interruption of the limitation period for criminal liability only in respect of offences relating to the protection of the financial interests of the Union or in other matters.
It has been held that the national courts, in cases concerning serious fraud against the financial interests of the European Union, are faced with two irreconcilable obligations, both to refrain from applying the mitior lex principle in relation to the interruption of the limitation period for criminal liability.
The High Court established that the information and explanations offered by the referring court contained omissions and non-compliant information that influenced, as a whole, the process of interpretation on the component of the effects of the Constitutional Court decisions.
Using this argument, some of the High Court’s panels refused to apply the judgments of the Court of Justice of the European Union, but this reasoning is misleading because the factual circumstances are verified by the Court of Justice of the European Union.
All these have culminated in a new interpretative decision of the High Court of Cassation and Justice, Decision No 37/2024, which is binding erga omnes in Romania, the reasoning being published in the Official Gazette of Romania from 18 June 2024.
This new decision is virtually another declaration of war against European Union law, stating that the disapplying of provisions of national law falling within the standard of protection of foreseeability of criminal law, requested by the Court of Justice of the European Union, is not compatible with Article 7 (1) of the Convention for the Protection of Human Rights and Fundamental Freedoms.
It was also considered that the national standard of protection of fundamental rights, the mitior lex (corollary of the non-retroactivity/ultra-activity of the more severe criminal law), including in relation to limitation periods for criminal liability and its interruption, gives substance to the principle of the legality of the offence and the penalty, as governed by Article 7 of the European Convention on Human Rights and Article 49 of the Charter of Fundamental Rights of the European Union, ensuring the guarantees provided for therein and a higher level of protection, of which, in accordance with the provisions of Article 53 of the Charter, national courts must apply national standards, which provide greater protection.
At the same time, the High Court of Cassation and Justice held that the obligation imposed on the courts by the judgment in Case C-107/23 PPU [Lin] has the effect of ensuring a level of protection of fundamental rights which is not equivalent or comparable to the protection afforded by Article 7 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, and that, in those circumstances, measures taken by judicial authorities are justified only as long as the application of Union law protects fundamental rights in a manner which can be considered at least equivalent to the protection afforded by the European Convention on Human Rights.
The HighCourt of Cassation and Justice also ruled that the systemic risk of impunity for offences against the financial interests of the European Union, in the light of which Decision No 67/2022 of the High Court of Cassation and Justice should be disapplied, according to the judgment in Case C-107/23 PPU [Lin], cannot be assessed by the courts in the absence of criteria predefined by the legislature because it means a breach of the principle of the separation of powers, and the succession of laws in time is not susceptible to different legal treatment depending on the nature of the offence, depending on whether it is an offence directed against the financial interests of the European Union or another non-political offence, any other interpretation being liable to infringe Article 7 (1) of the European Convention on Human Rights, for the lack of precision and predictability of the law.
Moreover, it was concluded that the courts may not disregard the settlement of the point of law on the application of the mitior lex principle to the interruption of the statute of limitations of criminal liability, rendered by Decision No 67/2022 of the High Court of Cassation and Justice – Panel for the Clarification of Certain Points of Law in Criminal Matters, within the limits resulting from the judgment of the Court of Justice of the European Union delivered on 24 July 2023 in Case C-107/23 PPU [Lin], and the ruling given by Decision No 67/2022 of the High Court of Cassation and Justice – Panel for the Clarification of Certain Points of Law in Criminal Matters shall apply, under the conditions therein established, to procedural acts conducted before 25 June 2018, which is the date of publication of Decision No 297/2018 of the Constitutional Court of Romania.
The High Court of Cassation and Justice also cites Decision No 390/2021 of the Constitutional Court of Romania, practically the first declaration of war against the Court of Justice of the European Union (para 160), pointing out that, in so far as some courts disapply of their own national provisions which they consider to be contrary to European law, whereas others apply the same national legislation by considering them to be in conformity with European law, the standard of foreseeability of the rule would be seriously undermined, which would give rise to serious legal uncertainty.
It should also be noted that, although the court which requested a ruling from the High Court of Cassation and Justice expressly stated that a new request for a preliminary ruling must be made to the CJEU, as well as a referral to the European Court of Human Rights for an advisory opinion on the interpretation or application of the rights and freedoms defined in the ECHR, these requests were rejected as inadmissible.
It has been found, inter alia, that the Court of Justice of the European Union has already ruled on the interpretation of the issues on which the referring court has considered that further clarification is needed, so that there is no need for a new request for a preliminary ruling.
Therefore, a possible dialogue was curbed without hesitation, in a context in which the Romanian High Court would balance the case law of the CJEU and the ECtHR in order to maintain its own approach in the original Decision No 67/2022.
We would also point out that the President of the CJEU, Professor Koen Lenaerts, has visited Romania several times in recent years, precisely in order to foster a dialogue with the Romanian supreme courts (Constitutional Court and High Court of Cassation and Justice) and even met with some among the judges who issued the recent decision. It seems that in vain.
Finally, taking into account developments in recent years, no firm reaction is expected from the European Commission. However, new requests for a preliminary ruling from the Romanian judges who have been in dialogue with the CJEU in recent years are not excluded. Although they are a few but courageous, their individual or associative efforts have been the most appropriate form to give concrete expression to the primacy of EU law in Romania.
Picture credits: KATRIN BOLOVTSOVA on Pexels.com.
