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Trajan Shipley
20th January 2022
Institutional law Justice & Litigation

AG Collins: EU law precludes national courts from not having jurisdiction to examine conformity with EU law of national provision deemed constitutional

Advocate General Collins delivered his Opinion in RS (Effet des arrêts d’une juridiction constitutionnelle) (C-430/21), a case concerning several issues related to the principle of independence of the judiciary within the context of criminal proceedings in Romania. 

The case stems from a criminal complaint against a public prosecutor and two judges, for their alleged breach of the applicant’s rights of the defence. The application was registered before the Section within the Public Prosecutor’s Office for the investigation of offences committed within the judicial system (SSIJ). 

In May 2021, the Court of Justice held in Forumul Judecătorilor din România (C-83/19)that național legislation on the SIIJ is contrary to EU law where its establishment is not justified by objective and verifiable requirements relating to the sound administration of justice and is not accompanied by specific guarantees identified by the Court. Subsequently, the Romanian Constitutional Court held that such provisions were constitutional and that the principle of primacy of EU law cannot override national constitutional identity. 

In the present case, the Court of Appeal of Craiova sought clarification on whether a national judge can be prevented from examining the conformity with EU law of a provision of national law that the constitutional court of that Member State has found to be constitutional, under the risk of exposure to disciplinary proceedings and penalties.

In his Opinion, the Advocate General answered in the negative. He advised the Court to rule that the principle of the independence of the judiciary, read in conjunction with Article 2 TEU and Article 47 of the Charter, precludes a provision or a practice of national law according to which national courts have no jurisdiction to examine the conformity with EU law of a provision of national law that the constitutional court of the Member State has found to be constitutional. That same principle precludes the initiation of disciplinary proceedings and the application of disciplinary penalties in respect of a judge arising from that examination.

The Opinion is available here.


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