The Hesitating Steps of the Romanian Courts Towards Judicial Dialogue on EU Law Matters

Abstract

One of the greatest challenges of Romania’s accession to the European Union was faced by the judiciary. The courts – of first instance, last instance, along with the Supreme Court and the Constitutional Court, had just started to act as European courts for the purpose of the European Convention of Human Rights’ (ECHR) application and, beginning with 1 January 2007, they had to face a completely new and different supranational legal system, which came with a bigger and a more complex set of rules than the ECHR system. Some courts realized very soon that the key for this complex system to work is judicial dialogue, and the Jipa judgment of the Court of Justice of the European Union (CJEU) is a proof of that. Their example was followed by other courts with hesitating steps, while, at the same time, the judiciary struggled to get familiarized with the principle of primacy of EU law. The study will point out the usual confusions that Romanian courts make with regard to the use of the preliminary reference procedure and the relation between national and EU law, which will be reflected by the sections dedicated to the three main legal issues that were the catalyst for the judicial dialogue between the national courts and the CJEU: the European arrest warrant, the pollution tax for second-hand vehicles and the consumers protection provisions in relation with unfair terms in contracts. The study leads to the conclusion that Romanian courts are still confused with their status in the EU law system. This paper will also show that the Romanian Constitutional Court has contributed to this confusion, firstly by making insufficient steps to guarantee that EU law, lato sensu, is properly observed in the national legal system, even challenging, in certain cases, the principle of primacy of EU law, and secondly by completely refusing to address preliminary references to the CJEU.