Raportul dintre Constituția României și legislația UE (Constituția României în dreptul UE și dreptul UE în Constituția României)
Relationship between the Romanian Constitution and EU legislation (the Romanian Constitution in EU law and the EU law in the Romanian Constitution)

Summary/Abstract: The EU is a union of states and citizens. The legal nature of this Union is disputable. However, most of the scholars admit that it works on federal bases; in the Brussels language called „the communitarian method”. If the EU is a federation, it is a sui generis federation of sovereign states. Those states have transferred to the European transnational institutions, they have established by their joint will, the power to exercise on their behalf, to their benefit and in their common interests some of their national competences. By doing this the respective states did not give up their sovereignty, but simply decided to exercise parts of it in common, for the sake of their common security. Likewise, they did not abrogate their Constitutions, but it was precisely because those Constitutions allowed them to enter such international agreements that they have signed the Treaty of the European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU). That explains why the above-mentioned founding legal instruments of the EU were adopted and later modified by and within intergovernmental conferences, as well as why they had to be ratified by all national parliaments of the signatory states. Those treaties include the principle of „attribution”, which means that the European institutions could not have, accept or enforce any power which has been not explicitly attributed to them by every and all member states. This „attribution” is achieved and could only be achieved in full respect and in complete observance of the respective national Constitutions of the member states. According to the EU founding treaties (which we see as being „the EU constitutional law/regulation”, but the most of the scholars call „the EU primary law/regulation”) the European institutions (namely the European Commission, which is the only one having the right to initiate legislation, and the two legislative bodies, the European Parliament and the EU Council) have the power to adopt compulsory regulations (called directives, which we consider to be primary EU legislation) directly applicable in the member states as if they were national legislation, as well as different types of recommendations, which either are subjects of acceptance by the member states or are compulsory for those states who must enforce them through some national legislation, which in relation to them appears to have the character of secondary legislation. This is possible within the national law order of the member states, only because the necessary undertakings were consistent with the relevant national Constitutions and were ratified by the respective national Parliaments accordingly. Consequently, it is implied that the EU legislation, adopted within the competences attributed to the EU institutions, has precedence over the national legislation, provided that it is not in conflict with the pertinent provisions of all and every member state Constitutions. At the same time, usually, the nation states’ Constitutions (in any case the Romanian Constitution) include provisions concerning the pre-eminence of the international law in the field of human rights, over the national regulation in the same field, whenever the rights granted by the latter do not establish a higher standard as compared to the former. In that case one could speak only about „the priority” of the international law, and specially of the EU law, over the national law, and not about its „supremacy”. The „supremacy” always remains with the national Constitutions which host the said provisions and in which that „priority” finds its legitimacy. Therefore, the constitutional jurisdictions of the EU member states (e.g. the Romanian Constitutional Court) are competent to carry out the constitutional control over the EU legislation, thus enforcing the principle of the rule of law (namely the rule of fundamental law) from the prospective of the national/internal law, while the EU Court of Justice (CJEU) is competent to oversee the due observance of the EU treaties by the member states within the frame of their respective Constitutions only. If the EU legislation, including the EU constitutional treaties, clashes with the provisions of the national Constitutions, the former should be amended in order to achieve compatibility with the latter, and not the other way around. The CJEU has full competence to give an official interpretation to the EU treaties, which is compulsory everywhere and for everybody inside the Union. The national Constitutional Courts or other national constitutional jurisdictions, in their turn, have full competence to give an official interpretation to the national Constitutions of the member states, which is compulsory for the CJEU, as well. Coming from the supremacy of the national Constitutions over the EU law, the ultimate power to decide over the consistency between the CJEU decisions of interpretation and the national constitutional provisions belongs to the national constitutional jurisdictions.

• Details
• Contents