A comparative analysis of achieving access to constitutional justice with the mechanism of notifying the Court of Justice of the European Union

Abstract

As a comparative analysis regarding the holders of the notification to the Constitutional Court and the holders of the notification to the Court of Justice of the European Union, we mention the fact that in both situations, the national court is the main promoter and the one that has the role of filtering the request for addressing the superior courts. We specify that other procedural subjects can invest the court either with an exception of unconstitutionality or with a request for a preliminary decision, for example the prosecutor or the parties in the pending case. In order for the referral with an exception to the constitutional court to be admissible, a series of cumulative conditions must be met. If one of these conditions is not met, the exception of unconstitutionality cannot pass the admissibility test, so the national judge will no longer proceed to the stage of analyzing the merits of the formulated exception. On the other hand, the request for a preliminary ruling must refer to the interpretation or validity of Union law, and not to the interpretation of the rules of national law or to factual issues invoked in the main litigation. Furthermore, the Court can rule on the request for a preliminary ruling only if Union law is applicable to the main case. From another perspective, the attribute of determining whether there is a contradiction between the national law and the treaty of the union belongs to the national court. From a distinct perspective, the Constitutional Court showed, among other things, that to the extent that the priority recognized to Union law is limited, in the Romanian legal order, by the requirement to respect the national constitutional identity, that it has the task of ensuring the supremacy of the Romanian Constitution on its territory. The effectiveness of the cooperation between the court and the national courts established through the preliminary reference mechanism would be compromised if the result of an exception of unconstitutionality before the Constitutional Court of a member state could have the effect of discouraging the national court, seized with a dispute governed by this law, to use the possibility or as the case may be to fulfill the obligation resulting from article 267 TFEU to address to the court the questions regarding the interpretation or validity of certain acts of the said law.