The Infra-Constitutionality of European Law in Romania and the Challenges of the Romanian Constitutional Culture

Abstract

This article deals with European Law as a legal transplant facing the Romanian constitutional culture, in the context of constitutionally limiting the Romanian State’s sovereignty as a member of the EU. Consequently, the reception of the EU law into the Romanian constitutional system (and culture) is determined by two paradoxically divergent Romanian legal-cultural traits: on the one hand, the necessity (bearing accents of national legal pride) to cherish and fructify the Romanian legal (constitutional) traditions, reified, as I shall denominate, as ‘the adapted Romanian law’, and stipulated in the 2003 amended Constitution as a ‘tradition firewall’ / ecran de traditionalite. On the other hand, I shall consider the Eurocentric, non-identity-centred and uncritical dimension of the Romanian legal culture. In this context, the reaction of the Romanian Constitutional Court (RCC) can be better understood when it faced the burden of analysing the constitutionality of the 2003 Constitutional project stipulating the limitation of the Romanian state’s sovereignty after joining the EU. By analysing the RCC’s 2003 decision, this paper highlights the conflict between the two above mentioned legal-cultural traits. RCC acknowledged that EU Law is supra-legal but infra-constitutional. Regarding this, some would deduce that the RCC has assumed what we could name ‘the Solange spirit’ (i.e. the identity-centred attitude of the German Constitutional Court when coped with the limits of the Community Law back in 1970s) and applied the desired ‘tradition firewall’. Instead, someone would be disappointed to find out that the RCC, completely ignoring the Romanian constitutional (democratic) traditions, has accepted the EU Law infra-constitutionality by importing it as a positivistic constitutional practice of the European Constitutional Courts, with no preoccupation for the cultural contexts in which those Constitutional Courts dealt with the problem of the primacy of the EU law. All these are conclusive for Romanian constitutional culture, where the identity-centred discourse is only rhetorically manifested, in contrast with the importing mentality which is deepening the weaknesses of Romanian contemporary constitutionalism. This could be a serious problem for Romania’s participation in building a European constitutional culture, primarily architectured as a dialog between the national Constitutional Courts and the European Court of Justice.