Abstract
This article deals with European Law as a legal transplant facing the Romanian constitutional culture, in the context of constitutionally limiting the Romanian State’s sovereignty as a member of the EU. Consequently, the reception of the EU law into the Romanian constitutional system (and culture) is determined by two paradoxically divergent Romanian legal-cultural traits: on the one hand, the necessity (bearing accents of national legal pride) to cherish and fructify the Romanian legal (constitutional) traditions, reified, as I shall denominate, as ‘the adapted Romanian law’, and stipulated in the 2003 amended Constitution as a ‘tradition firewall’ / écran de traditionalité. On the other hand, I shall consider the Eurocentric, non-identity-centred and uncritical dimension of the Romanian legal culture. In this context, the reaction of the Romanian Constitutional Court (RCC) can be better understood when it faced the burden of analysing the constitutionality of the 2003 Constitutional project stipulating the limitation of the Romanian state’s sovereignty after joining the EU. By analysing the RCC’s 2003 decision, this paper highlights the conflict between the two above mentioned legal-cultural traits. RCC acknowledged that EU Law is supra-legal but infra-constitutional. Regarding this, some would deduce that the RCC has assumed what we could name ‘the Solange spirit’ (i.e. the identity-centred attitude of the German Constitutional Court when coped with the limits of the Community Law back in 1970s) and applied the desired ‘tradition firewall’. Instead, someone would be disappointed to find out that the RCC, completely ignoring the Romanian constitutional (democratic) traditions, has accepted the EU Law infra-constitutionality by importing it as a positivistic constitutional practice of the European Constitutional Courts, with no preoccupation for the cultural contexts in which those Constitutional Courts dealt with the problem of the primacy of the EU law. All these are conclusive for Romanian constitutional culture, where the identity-centred discourse is only rhetorically manifested, in contrast with the importing mentality which is deepening the weaknesses of Romanian contemporary constitutionalism. This could be a serious problem for Romania’s participation in building a European constitutional culture, primarily architectured as a dialog between the national Constitutional Courts and the European Court of Justice.
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Notes
- 1.
Treaty of Lisbon (2007).
- 2.
For a detailed account of the Romanian legal transplant’s causes.
- 3.
For the Romanian legal weakness.
- 4.
I understand by ‘irrational legal transplant’ the one which has been done without correctly and fully considering the necessity of the legal import, the possible solutions that the national legal culture could provide, the quantity and the type of the legal institutions to be imported, the proper legal model to be accessed and, last but not least, the possible effects on the importing society and its culture. It is important to remember I’m not casting a purely negative connotation on the idea of irrational legal transplant as opposed to a necessary positive rational legal transplant. Both are normal and explainable endeavours in specific socio-economic conditions, with possibly negative and positive consequences. This does not restrain me to manifest a theoretical preference for the rational legal transplant, at least for its interest to consider the compatibility between the imported law and the importing society.
- 5.
- 6.
I’m using the name of the famous decision of the German Constitutional Court in the case Internationale Handelsgesellschaft mbH versus Einfuhr (29th of May 1974), Solange I. In this decision, the German Court is very firm in appreciating that as long as (Germ. Solange) the European Community did not eliminate the possible normative conflict between the Community Law’ provisions and the human rights stipulated by the German Basic Law, the latter ones would have priority. Consequently, taking into consideration the almost general diffusion of this type of constitutional safeguard, we could situate in the Solange spirit the attitudes of the European Constitutional Courts which, considering the explicit or implicit provisions of their Constitutions, settled partial or absolute limits to the principle of the European Law’s priority. These limits concerned different values pertaining to the legal-political national identity, regulated by the constitutional provisions, provisions which are not accepted to be amended when coming into conflict with the European Law’s provisions. On the contrary, it would be rather expected either a European Law’s amendment, considering the interests of the member states, or a parallelism between the national-constitutional and European legal orders.
- 7.
From 16th April 2003 regarding the constitutionality of the legislative proposal regarding the amendment of the Romanian Constitution, M. Of. No. 317 / 12.05.2003.
- 8.
From my point of view, it would have been important to specify the member states that the RCC considered when it accepted the infra-constitutionality of the European Law as the best solution. This demand is justified by the existence of different typologies among the countries which assumed the ‘Solange spirit’. On the one side, there is the group (Italy, Germany, Denmark, Belgium, Spain, Sweden, Ireland and Great Britain) which just partially limited the priority of the European Law over the national Constitution, by assuming the right to review, through their Constitutional Courts, the constitutionality of the European Law only as regards some fundamental constitutional values which are crucial for their legal-cultural and political identity. On the other side, there are France and Greece who accepted no kind of priority of the European Law over the national Constitution. See Grabenwarter 2011, 98–104. By making clear its sources of reference, the RCC would have revealed and maybe understood the cultural coordinates of the resistance that Constitutional Courts manifested towards European Law all over Europe.
- 9.
Considering both the internal constitutional logic and the logic of the classical national sovereignty, the RCC dictum is correct: in order to avoid the violation of the constitutional provisions regulating the limits of the constitutional amendment, especially the one guaranteeing the political independence, there was no other way than to postulate the infra-constitutionality of the European Law. Instead, it is very puzzling the lack of a substantial identity-centred attitude of the RCC. To be very well understood, I must say I do not consider an absolute necessity of an RCC position which would consider the above mentioned écran de traditionalité or any other cultural-legal national element (so, a Solange type attitude). From my point of view, RCC could have interpreted the syntagm ‘domestic laws’, stipulated in the article 148 paragraph 2 RC, as to include the Constitution. Thus, the RCC would have been adopted, by teleological interpretation a supra-constitutionality solution. This one would have perfectly fitted the ‘supremacy’ of the European Law logic adopted by the ECJ and would have been reached by using the teleological interpretation, considered by ECJ essential for the preservation of the communitary legal order and its unitary application in the member states. See Fennelly 1996–1997, 656ff.; Snyder 1993, 42–44. My perplexity flows form the fact that, by having a Solange type attitude, the RCC didn’t have a substantial, political and legal identity-centred position, despite the fact it would have had a strong reason and a clear benchmark for such an attitude.
- 10.
Paul Kirchhof, the judge of the 2nd Senate of the German Constitutional Court, as a case reporter, stated that ‚… the European States at present do not shield themselves from other States or nationals of other States, but they maintain their originality in a people related by birth and descent, by a territory belonging to themselves, and by a cultural community of language, religion, art and historic experience’.
- 11.
RCC’s logic is correct: if the Romanian desiderate to adhere to EU is legitimated by the country’s interests, that national sovereignty cannot become an obstacle on the way to achieve it. See RCC’s decision no. 149 / 16th of April 2003 regarding the constitutionality of the constitutional amendment. Somehow, we are told to reconcile ourselves with the idea of losing political sovereignty, as a necessary consequence of the ‘country’s interest’.
- 12.
Despite its constitutional stipulation, the Romanian constitutional scholarship is not interested in debating and clarifying the meaning and the dimensions of the Romanian democratic traditions. Paradoxically, we could speak about a present tradition which lack its pastness.
- 13.
The idea of a necessary re-evaluation of the traditional concepts of national sovereignty and constitutional supremacy has been developed in the Romanian constitutional doctrine by Vrabie 2006, 321–322.
- 14.
It is doubtful whether the obsession for uniformity, illustrated by the expression ‘common constitutional traditions’ of the member states, inscribed in the Lisbon Treaty is the most helpful response to de problem I discuss.
Abbreviations
- EU:
-
European Union
- ECJ:
-
European Court of Justice
- M. Of.:
-
Monitorul Oficial
- RC:
-
Romanian Constitution
- RCC:
-
Romanian Constitutional Court
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Guţan, M. (2016). The Infra-Constitutionality of European Law in Romania and the Challenges of the Romanian Constitutional Culture. In: Arnold, R. (eds) Limitations of National Sovereignty through European Integration. Ius Gentium: Comparative Perspectives on Law and Justice, vol 51. Springer, Dordrecht. https://doi.org/10.1007/978-94-017-7471-0_9
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