Monday’s decision by the Court of Justice of the European Union on the recipe has generated and will certainly generate a lot of controversy. Disputes that exist not only at the level of the courts, the judicial system in general, but also at the level of the entire Romanian society. Controversies aside, the ECJ decision certainly brings more confusion than clarity to Romania’s legal space. I’ll explain why I think this will happen below.

One certainty, however, I would emphasize if it were still necessary: ​​the fact that, nevertheless, the judicial system includes brave judges who are responsible in the application of the law. And when I talk about the application of the law, I mean equally the application of Romanian legislation and EU legislation, which is mandatory according to Art. 148 of the Constitution of Romania.

With all the pressure that the judicial system has been under at some points in recent history, including threats, put into practice in some situations, to disciplinary action for the audacity to refer to the ECJ when the judge in the case notices that there is a problem of conflict between national regulation or national practice – here the ECJ refers to practice, in particular on binding decisions of the CCR or ÎCCJ, such as preliminary dismissals or appeals in the interests of law – and the full effectiveness of EU norms (see the case of some judges against whom disciplinary liability was brought in similar cases), there were and are judges who fulfill their public mission related to reporting to the CJEU about possible such conflicts.

That is why the gesture of colleagues from the Court of Appeal of Brasov, who informed the CJEU about this decided case, should be appreciated.

In this vein, I would read paragraph 2 of the decision of the Court of Justice of the EU, which enshrines, an invariable aspect in the jurisprudence of the Court of Justice of the EU, the principle of supremacy of EU law over national rules and national practice, including decisions of the CCR and ÎCCJ, if the latter contradict some provisions of EU law.

• See the Court’s full decision here

The CJEU notes with subject and predicate (paragraph 134 of the judgment) that national courts are EU courts, therefore they have the attribute granted by the founding treaties to “do everything necessary to remove national regulation or practice which may constitute an obstacle to the full effectiveness of Union law”. In other words, the responsibility of national courts for the direct application of EU law is paramount, including in criminal cases of serious fraud involving EU financial interests.

Another certainty is that there are several national authorities to which the CJEU decision points. Thus, also with subject and predicate, the decision of the CJEU does not govern several Romanian constitutional bodies, whose passivity or misinterpretation of EU law and jurisprudence of the CJEU without governance is highlighted.

First, the Romanian legislator, the parliament, came out of this story very wrinkled. It is difficult to explain how the parliament remained passive for four years from the moment when the CRC published the first decision on the interruption of the statute of limitations for criminal liability (on June 25, 2018, the normative act was adopted only on 30.05.2022 under the pressure, let’s face it, of the European Commission within the framework of the MCV, a condition, among other things, that the Commission proposes to abandon the MCV – see para. 90 Decision of the ECJ).

Of course, aside from talk of the responsibility and guilt of Parliament (if it can be held accountable for such actions/omissions), there remains the bitter aftertaste of thousands of crimes being tried by the courts and into which the energy of hundreds of people from the judicial system has been invested, the public money has suddenly run out due to the inaction of the legislator. And this is under the conditions in which, regarding the liability of Art. 147 para. 1 of the Constitution provides for a 45-day period during which the parliament or the government must reconcile provisions deemed unconstitutional with the Romanian Constitution. Compare the period of 45 days with the period of more than 1,450 days that the derivative legislator (the Romanian government) had to fulfill its constitutional role.

ÎCCJ also comes out wrinkled. Which, as it is assumed, knew and applied, in turn, the principle of supremacy of EU law.

The CJEU indirectly accuses the ÎCCJ of the fact that the decision on legal dissolution no. 67/2022, which established the application of a more favorable criminal law even when the criminal proceedings were completed by final verdicts, the institution of suspension of the execution of the sentence is not applicable to the decisions of the Criminal Code no. 297/2018 and 358/2022, although the norms governing the statute of limitations in criminal cases do not fall under the fundamental right provided for in Art. 49 par. 1 of the Charter of Fundamental Rights of the EU (principle of predictability, accuracy and non-retroactivity of crimes and punishments). The criticism comes against the background that the ÎCCJ does not follow the practice of the CJEU in this area, which it refers to in the judgment (paragraph 108 et seq.).

In fact, the CJEU criticizes what I call typical of Romanian national and constitutional identity: the volatility of the concept of identity. Accordingly, it is typical for Romanians to be with the EU when it is convenient for us (European funds that should go to Romanians; freedom of movement, including inclusion in the Schengen area; freedom of trade, etc.), but we are against the EU when it does not suit us (when we are asked to be responsible for the spending of EU funds, which funds do not belong to EU institutions, but to European citizens, because all European citizens contribute to such funds; when we are asked to be responsible for taxes and fees from EU Participation , such as VAT; such as accountability in the fight against corruption, which is insisted on by all EU institutions throughout our EU membership, etc.).

Accusations made in public space by various opinions that are often interested in their own criminal cases or as lawyers of some accused or convicted who, through the direct application of EU rules or jurisprudence of the EU Court of Justice, Romanian judges are transformed into politicians, or that they make policy, which is part of the same concept, Uli, these leaders of thought, according to Art. 267 par. 3 of the Treaty on the Functioning of the EU, a national judge is obliged to apply to the CJEU with a request to render a decision on the interpretation of treaties or the validity and interpretation of acts adopted by EU institutions.

I meant that there will be serious problems with the interpretation of the ECJ Decision at the level of national authorities, including and especially in the case of the national courts of Romania, which judge criminal cases. I will list a few here, given that I am convinced that the application of the Decision of the Court of Justice of the European Union will generate a lot of debate, not only at the doctrinal level or on social networks, but will also generate non-uniform practice at the level of criminal courts.

As I have already said, there is already created confusion among the public about the inefficiency of the judicial system, which “closes” criminal cases, the subject of which are serious crimes, on the conveyor belt. And it is difficult to manage in the absence of consistency of legislative and judicial powers, even in the key indicated by the Decision of the Court of Justice of the EU itself. It is difficult for these state authorities to explain in the conditions of the financial, economic, and social crisis why serious crimes and criminals remain unpunished. And the growing disappointment of the population under these conditions is understandable.

There is already a view in the judicial system that the ÎCCJ ruling on a prescription whose effects in a specific area of ​​serious fraud affecting the financial interests of the EU have been criticized by the CJEU Decision will not apply to crimes specific to that area (Article 325(1) TFEU and the PIF Convention and Directive), but will apply to all other crimes that do not fall under this umbrella. . In the end, I do not know how the national criminal courts will act, but I would like to mention something else that is emphasized in the CJEU Judgment (paragraphs 72-73): the CJEU ruled strictly in relation to the notification made by the Court of Appeal of Brasov, accordingly, the conformity of national regulations and Romanian practice was checked only in relation to Art. 325 paragraphs 1 FSES and Art. 2 para. 1 of the PIF Convention.

Personally, I would be very careful with such a hasty analysis of the scope of the Decision of the Court of Justice of the European Union only in relation to the above-mentioned criminal actions.

In addition to crimes affecting the financial interests of the EU, there are many crimes under national criminal law that are very serious. For example, acts of corruption, embezzlement that caused particularly grave consequences, abuse of office that caused particularly grave consequences, as well as violent crimes such as robbery and aggravated robbery, etc. If this opinion prevails, it is expected that those provided for in decision No. 10 will be carried out. 67/2022 ÎCCJ continue to have consequences. However, it is clear that the danger of such crimes affects the whole society, and not only the victims of crimes.

Even with regard to crimes that are subject to the provisions of Art. 325 paragraphs 1 FSES and Art. 2 para. 2 of the PIF Convention may differ in the practice of national courts. Since the CJEU Decision leaves it to national courts, including the CCR, to assess the fundamental right provided for in Art. 49 par. 1 of the Charter of Fundamental Rights of the EU, in accordance with national standards regarding the predictability, precision and non-retroactivity of criminal law, regarding the principle of supremacy of EU law (including and especially in this case in the field of fraud with EU funds).

If, since the entry into force of the EU Anti-Fraud Directive (6 July 2019), EU law is clear, as shown in the judgment of the CJEU (paragraphs 64 and 81), Romanian criminal courts must apply the Treaty on the Functioning of the EU and the Anti-Fraud Directive for crimes related to fraud with European funds and against EU financial interests committed before 6 July 2019, to us, will definitely have to deal with the non-unified practice of the Romanian criminal courts.

The CJEU says that national courts “are not obliged” to set aside decisions of the Constitutional Court and the Supreme Court that invalidate provisions of national law governing the reasons for the interruption of the statute of limitations in criminal cases.

What does “optional” mean? Directly stated: some national courts will consider, in relation to crimes against EU funds committed before 07/06/2019, that the decision of the Court of Justice of the EU is applicable without the need to analyze the mechanism described above, other courts that such an analysis is necessary, and the third category of courts that they are obliged to apply the decision of the KRS from 2018 as a priority, that is, in short, to make a decision to terminate the criminal process or recognize. petitions for the cancellation of already considered cases, and upon re-examination – for the closure of the criminal process.

(Horace Dumbrava – Tirgu Mures Court of Appeal judge, former president of CSM)