THE EUROPEAN UNION COURT OF JUSTICE JURISPRUDENCE AS A SOURCE OF NATIONAL LAW.
In the current configuration of Europe, Romanian legal system (Nicolau and Lupu, 2010: 99) had to meet the requirements imposed by the interaction of the two legal systems, Roman-Germanic and Anglo-Saxon, which defines the European legal environment. The classical legal theory classifies the national sources of law as formal and material (Djuvara, 1995: 308), written and unwritten, official and unofficial and direct and indirect (Popa et al, 2005: 163). "Among the formal sources of law, jurisprudence and doctrine are more interpretative than creative sources of law and jurisprudence main role is to interpret the law and only secondary to create new legal rules, because the judge's mission is first and foremost to enforce the law. Unlike doctrine, whose opinions are optional, jurisprudence is compulsory, its action being direct and immediate." (Hamangiu et al, 2002: 10) Even if not acknowledged in Romanian legal system, judicial precedent is frequently present in judicial activity in both European Court of Human Rights and European Union Court of Justice decisions, which, according to article 11 and 20 in Romanian Constitution are part of the national law along with the treaties signed by Romania and national courts' decisions. Article para 2 and 3 in Constitution sanctions direct action in national law for European Union law. Interpreting these texts, both High Court of Cassation and Justice and Constitutional Court admitted direct action in Romanian law that is their character of sources of law, for both European Court of Human Rights and European Union Court of Justice jurisprudence. European Court of Human Rights final decisions are published under the authority of the Registrar. The Registrar is also liable for publishing the official collection with chosen decisions as well as all useful documents considered as such by the Court's President (Nicolau, 2012: 86).
Talking about European Union Court of Justice activity, we will mention that the whole community legal order is based on the principles of direct effect and European law's priority over national law. According to Lisbon Treaty (signed by EU member states on December 13, 2007 and enforced on December 1, 2009), the Treaty amends the Maastricht Treaty regarding European Union and Roma Treaty concerning European Economic Community. The Roma Treaty was renamed as the European Union Treaty), the Court of Justice interprets European legislation to make sure it is unitary applied in all EU countries (article 19). The Court of Justice main competence regards three categories of cases: verifying European law legality, actions against member states for failing to fulfill EU obligations and preliminary ruling procedure. The most important prerogative concerning verifying the legality is annulment action (article 230 EC Treaty). The petitioner requests annulment of an EC/EU legal rule, which is either a regulation, a directive, or a decision adopted by a European Union institution. The Court of Justice is exclusively competent concerning the petitions of a member state against European Parliament and the Council of Ministers, except Council's decisions on state aid, anti-dumping and implementing measures, or the petitions filed by a European Union institution against another EU institution. The Court of first instance is competent to judge the petitions concerning this type of measures and especially petitions filed by individuals.
Another area of verifying the legality in the community litigation is the action of refraining to act. It involves revising the legality of European Community institutions' refraining to act. However, such a petition can be filed only after the institution concerned was requested to act. If restraining to act is considered illegitimate the institution concerned is responsible for ceasing the refraining to act, by adequate measures. The competence to decide for this kind of action is split between the Court of Justice and the Court of First Instance, according to the same criteria valid for the annulment action. Appeals against Court of First Instance decisions and statutes can be filed at the Court of Justice. If case's circumstances allow, the court itself may decide on merits of the case. For the other situations, the Court must send the case again to the Court of First Instance, obliged to consider the Court's decisions. Petitions against EU member states allow the Court of Justice to determine if an EU member state fulfilled its obligations according to European Community law. Before filing a petition in the Court of Justice, the European Commission performs a special preliminary procedure, by means of which the member state can answer to the complaints submitted against it. If this procedure does not lead to ceasing the non-fulfilment of the obligation by the member state, the petition may be filed in the Court of Justice for violating the European Community law. Such a petition may be submitted by the European Commission--as it actually happens many times--or by an EU member state. If the Court observes that an obligation has not been fulfilled, the state must immediately cease the non-fulfilment of the action. If the European Commission submits another petition and the Court of Justice ascertains that the particular EU member state failed to observe its decision, the Court can impose a fixed or a flat rate fine. According to article 234 (previous 177) of the Treaty founding the European Community, if in a member state court an issue related to interpreting the community law is discussed, that court can (and is obliged if it is a supreme court, whose decision can't be appealed anymore according to the national procedure) ask the European Court of Justice to rule it with an interpretative decision on the community law.
Therefore, in order to ensure the uniformity of the community law interpretation, a cooperation system was created, the European Court of Justice being consulted by the national jurisdictions when the latter, enforcing a disposition of a community law in a case, must know if this disposition is valid or to specify the meaning they give it. The authority of a Court of Justice preliminary decision is founded in its compulsory nature for the court requesting it and the courts that would sit the case in remedies and its general applicability for the other courts. The preliminary decisions produce retroactive effects starting with the date of the act's issuing and exceptionally starting with the date indicated by the Court in that particular decision. A preliminary decision produces effects for both the case requesting it and other cases because the interpretation is one with the interpreted stipulations, completed by it. The Court uses the idiom "to rule" in the operative part of the judgement concerning the interpretation, which suggests that it states a rule or more precisely it assigns it a new interpretation. The interpretation given by the Court compels the national courts assigned with settling the case requesting it (the interpretation), but these decisions' authority exceeds these limits considering that other national courts are compelled to observe the authority of the decisions issued by the Court. However, the courts have an option: either they observe the interpretation of the Court, or they request the Court to issue another preliminary decision in interpretation.
2. The European Law and the Romanian Courts
The impact of the European law on Romanian courts, activity is focused on:
a) Cases ruled by the courts, without requesting a preliminary decision and enforcing the previous European jurisprudence (the clear act theory). The clear act theory was formulated by the French State Council (1964) "a national court whose decisions are not likely to be subject to appeal in national law [...] is not obliged to suspend the case and invest the Court of Justice [...] but when there's any doubt regarding the meaning or the enforcing of one or more stipulations of the Treaty related to the case and the ruling depends on this difficulty."
b) Cases where the court enforces the European law as already interpreted by the Court (judicial precedent sanctioned by Court's jurisprudence) and
c) Requesting a preliminary decision by investing the Court of Justice.
The preliminary question procedure generated an interest in Romania not only from the perspective of the cases sent, but especially because of the cases in which the courts rejected requests to send a preliminary question. The Romanian courts rejected many requests to send a preliminary question for reasons related to the relevance of the question or because the community stipulations are clear enough (related to the case in trial).
Judges, at the beginning of European communities functioning, did not refer to or quote, debating new cases, other previous decisions ruled in similar situations. Meanwhile, the Court took over some common law concepts, quoting phrases and referring to its previous jurisprudence (Stefan and Andresan-Grigoriu, 2007: 139). Nowadays, the ratio between jurisprudence and its qualification as a formal source of law is approached in such a manner that it is obvious the diminution of the contrast between the two big systems of law: in the Roman-Germanic system of law, the jurisprudence is referred to as an additional source of law, while in the Anglo-Saxon system, law is referred to as an additional source of law (Popescu, 2000: 158). The Anglo-Saxon system of judicial precedent has been adopted by both the institutions of the European Economic Community (mainly the Court of Justice) and the European Court of Human Rights (Piperea, 2009). Jurisprudence, in community law, is part of the national unwritten sources of law, along with the general principles of the community law and EU institutions practice, without being an European source of law, as known by the common law system, the decisions of the Luxemburg Court of Justice being compulsory only as far as the ways of interpreting the European law stipulations are concerned, without creating new laws (Tanasescu, 2008: 31-42).
The Court of Justice decisions created a coherent jurisprudence in time, with a quasi-legislative function, imposing itself de facto on its own following decisions and on the national magistrates (Deleanu, 2004: 25). Although the law creating character of jurisprudence is acknowledged, the legal reality does not support its normative value, thus making it difficult to enclose it in the sources of law. Among the arguments supporting the denial of the normative de jure value of jurisprudence are the res judicata authority, the relative character, the retroactive character of the decision, the powers separation principle and judges' independence. However, jurisprudence important role in the community law is not denied, the first political integration elements being achieved with the help of jurisprudence (Toader, 2008: 15-30).
The specific of the community jurisprudence and the legal effects creating law of the Court of Justice jurisprudence were remarked starting with the decision for the Van Geen en Loos case, in 1963, when the Court stated the direct effect principle of the European law in member states' national systems of law. In 1964 the Costa case decision followed, the Court consecrating the principle of European law supremacy, according to which, the Union represented a new legal order, independent, whose originality is determined by the ultimate transfer of competence from the member states to the Union. The Court of Justice underlined in this case that "a national court whose decisions are not subject to appeal according to national law, must, when addressed a community law question, to fulfill its obligation to refer to the Court of Justice, except the case when the question is found not to be pertinent or the community stipulation has already been interpreted by the Court or enforcing community law is so obvious that it doesn't allow any reasonable doubt". The European law supremacy principle, as conceived by the Court, implies not applying the national law incompatible with the European stipulation and the national court's role is to remove the first one favoring the second. The European law substitutes the national law, allowing the direct effect of the European law. The judicial precedent system leads to a more efficient community law, but a system based on precedent also involves a price of the error: the potential to err of the national courts. However, the precedent has benefits, the most
important being that the national courts themselves become enforcing authorities of the community law (Craig and de Burca, 2009: 587).
Jurisprudence normative value outside the common law system was outlined once the differences between the two systems of law diminished, doctrine arguing that "jurisprudence general legal acts creative function, acquired and amplified with time, was initially contested, but it seems to be unanimously accepted now, looking only for reasonable explanations" (Deleanu, 2005: 275).
Jurisprudence function in Court of Justice activity was acknowledged in doctrine and its mainly constant practice to reiterate the previous decisions, brought it near to the common law system, without the legal value of the precedent as regarded by this system, because at the same time, the Court has what the French doctrine calls "revirement de jurisprudence", specific for the Roman-Germanic system (Popescu and Manea, 2012: 7).
Jurisprudence role is, among others, to ensure a certain security of the legal reports so that the judge will aim not only to rule the particular case, but also to coordinate the decision with the other legal decisions, such ensuring a unity and a coherence of the decisions, detaching guiding ideas in the process of sharing justice. This need of unity and coherence generating security turn the precedent into a source of justice, even if not into a source of law stricto sensu.
Regardless the role it has in a system of law, jurisprudence significance cannot be ignored and a comparative study can be extremely useful to explain the substance similitudes, often hidden in techniques diversity. But it is clear that jurisprudence has a compensating role in the system of law (regardless its specific), for the continental system of law offering flexibility to the law, become too rigid due to the written laws and for the Anglo-Saxon one limiting judge's freedom.
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RALUCA OANA LUPU
Spiru Haret University
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|Author:||Lupu, Raluca Oana|
|Publication:||Contemporary Readings in Law and Social Justice|
|Date:||Jul 1, 2017|
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