Romania : The crisis of the Rule of Law

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Introduction

The European Union has come a long way from its humble beginnings, each year bringing about a change to its impact upon both the Member States and the rest of the world. Unfortunately, since we do not live in the peaceful and violence-free society everyone has always dreamed of, there are hardships that sometimes bother the delicate balance of this coalition. 

Currently, one of the biggest ‘hot-potatoes’ in the European Union is represented by its primacy, and implicitly, by the rule of law. This concept of the law being above everything else has started slowly backsliding in some countries : from refusing to entirely submit to the Court’s judgments to failing to implement buffer systems to protect judicial independence, the Union’s fragile control seems to be crumbling from within. An example of such a “rioting” state is Romania, which has changed its tune of willingness to evolve and reach the European standard to a song that is clearly starting to resemble a battle anthem. 

Democracy in Romania

To begin with, democracy is still considered to be a fairly new system for Romania. Since the fall of the communist regime, the country and its people have tried to prematurely heal festering wounds, resulting from over four decades of political repression, by adhering to the western visions, and they more or less succeeded.[1] 

Its journey to become a Member State began in 2002 and its hopes soon came to fruition in 2007 with its accession to the EU.[2] Unsurprisingly, a new aspect accompanied this eastern enlargement[3]: the Union would accept Romania’s application with the implementation of a ‘survey’, called a Cooperation and Verification Mechanism (CVM), meant to consolidate the judicial system and to create an instrument meant to assist in the eradication of corruption.[4] As such, Romania was expected to write and submit a report to the Commission at the end of each year, which was supposed to encompass the country’s progress in finding feasible solutions for these issues. The Commission would then send the Union’s feedback on the reported problems, alongside recommendations to guide the governing parties.[5]

In the initial stages, Romania took a pro-European stance, seemingly open to all suggestions and slowly started to send preliminary references to the ECJ.[6] In spite of this friendly approach, corruption is a conniving enemy to combat and Romanians have mastered the art of circumventing the rules.[7] On the basis of article 288 TFEU, recommendations or opinions have no binding effect on the Member State, and it became apparent that was the road Romania would choose to follow, thus distancing itself from the concept of primacy and rule of law.[8] Two main issues still overshadow Romania’s legal evolution : the lack of proper judicial independence and the out-of-control corruption that still stems from almost half a century of an authoritarian regime.[9]

The latter is a controversial subject even within the country’s borders. More than half of the political landscape has its roots in the communist party and even though they took part in the revolution that deposed it, some found themselves reluctant to let go of its ideals.[10] The government has created, along the years, chambers which focused on reducing corruption in the Romanian system.[11] Ironically, most of them are also corrupt; most employees have achieved their position either through nepotism or the influence of a governing political party.[12] Most of the time, these proceedings are well-hidden by the members and unless the situation or the role involved a higher level of international scrutiny, they easily get away with their secret understandings. In this unending sea of corruption, it is not unsurprising that it would spill over into other governing mechanisms or forces, such as the judiciary.

The rise of corruption and threats to judicial independence

When discussing the backsliding of the rule of law in eastern states, it is impossible to gloss over the resistance of the highest legal court in Romania, the Romanian Constitutional Court (RCC), in the face of the ECJ’s rulings.[13] Article 148 of the Romanian Constitution, stating that European law takes precedence over national laws, was the foundation through which the country could ascend into the EU and the RCC gives off the impression that it has conveniently forgotten this fact.[14]

In a series of cases referenced to the ECJ, the Romanian Constitution Court refused to acknowledge its rulings, as they would have displaced the national legislature. This ‘butting of heads’ soon reached a boiling point, both internally and internationally, during the proceedings of two famous cases. 

In 2017, the Government sought to implement an emergency ordinance that would have decriminalised a number of offences, which would have gone against every anti-corruption system that was put in place.[15] (Fun fact: the Deputy Prime Minister was the one who suggested and massively supported the implementation of that ordinance and he was soon sent to prison for crimes that would have been pardoned if the ordinance managed to pass.[16])  Thousands of Romanians protested against it nationally, but also internationally, which led to a number of judges mobilising in spite of the RCC disagreements with the ECJ and continuing to send preliminary references to the Court regarding the legislative changes. Thus came about one of the two major rulings that the RCC heatedly argued against, the case called Asociația ‘Forumul Judecătorilor din România’, in which the ECJ declared once again that primacy must be accepted by the Constitutional Court and that national law must be disapplied if it conflicts with the Union’s legislature.[17] The RCC response leaves something to be desired; it stated that following the ECJ’s instructions would go against the Romanian Constitution, which was considered to be part of the ‘national identity’, and indirectly threatened the judges who wished to set aside national law in favour of its European counterpart.[18]

This tense situation was accentuated by the ruling in RS, in which the ECJ finally critiqued the RCC’s behavior and inexplicable resistance to its judgments, once again stating the supremacy of European law.[19]

Despite the Constitutional Court’s repetitive clashes with the Court, the Romanian Government distanced itself from this conflict, instead giving the impression of siding with the Union.[20] There are, however, arguments against this notion. Firstly, the RCC is formed of nine judges: out of them, five judges were proposed by the parties which formed the coalition leading the Government, with the rest being suggested by the President or other smaller political parties.[21] Most of the RCC’s judges have a background in the political landscapes or have been at some point members of Parliament as part of the parties that anointed them.[22] 

This is a direct hit against judicial independence, as they would rather seek to protect political values and interests rather than uphold the doctrine of the rule of law. A fitting example is what happened in the 2024 presidential elections, when they decided that the first round of votes should be recounted, with no clear motive other than the small difference between the candidates in the second and third places (less than 2500 votes).[23] The candidate in the third place was the current Prime Minister, leader of the coalition which suggested five of the nine judges. Against the backdrop of public outrage caused by this decision, considered undemocratic by many, the RCC has decided to invalidate the first round of elections, by the motive of Russian meddling with political campaigns.[24] 

Secondly, some of the judges chosen for the Constitution Court have been pardoned for their past transgressions by the Government, which would affect the balance of the scales even more: they have more or less bought the judge’s confidence and their secret dealings could be more easily ignored by the courts.[25]

Conclusion

Romania still has a long way to go until it can claim that the true concept of the rule of law has been reinstated. While corruption still runs amok within the borders of the country, the European Union seems to still have faith in this state and has stopped the process of the CVMs. It is questionable if Romania is worthy of this trust, but only the passing of time will decide if this country is ready to leave behind its usual dealings and start walking along a true European path.

References

[1] Anca Mihaela Pusca, ‘Revolution, Democratic Transition and Disillusionment: The Case of Romania’ (Manchester University Press 2008)

[2] European Union, 'Romania' (European Union) https://european-union.europa.eu/principles-countries-history/eu-countries/romania_en accessed 9 December 2024.

[3] European Union, 'Council Decision of 4 December 2006 on the Accession of Bulgaria and Romania to the European Union (2006/928/EC)' (Official Journal of the European Union, 4 December 2006) http://data.europa.eu/eli/dec/2006/928/oj accessed 9 December 2024.

[4] Ibid.

[5] Ibidem.

[6] V Vita, ‘The Romanian Court and the Principle of Primacy: To Refer or not to Refer’ (2015) 16 German LJ 1623. 

[7] Martin Mendelski, ‘15 Years of Anti-Corruption in Romania: Augmentation, Aberration and Acceleration’ (2021) 22(2) European Politics and Society 237-258.

[8]Romanian Constitutional Court Dec No 80/2014.

[9] Martin Mendelski, ‘15 Years of Anti-Corruption in Romania: Augmentation, Aberration and Acceleration’ (2021) 22(2) European Politics and Society 237-258.

[10] Ciprian Iftimoaei, ‘Elite guvernamentale în România postcomunistă’ (Editura LUMEN 2015) 92–99.

[11] Government of Romania, Emergency Ordinance No. 43/2002 on the National Anticorruption Prosecutor's Office (Official Gazette of Romania, Part I, No. 244 of 11 April 2002).

[12] Ciprian Iftimoaei, ‘Elite guvernamentale în România postcomunistă’ (Editura LUMEN 2015) 92–99.

[13] V Vita, ‘The Romanian Court and the Principle of Primacy: To Refer or not to Refer’ (2015) 16 German LJ 1623.

[14] Romanian Constitutional Court Dec No 80/2014.

[15] Government of Romania, Emergency Ordinance No. 13/2017 amending and supplementing the Criminal Code and the Criminal Procedure Code (Official Gazette of Romania, Part I, No. 92 of 1 February 2017).

[16] Dan Tapalaga, 'Liderul PSD Liviu Dragnea beneficiază de ambele proiecte de ordonanță de urgență: grațierea și dezincriminarea abuzului în serviciu îl scapă de câteva probleme cu justiția, dar tot nu va putea fi...' (HotNews.ro, 1 February 2017) https://hotnews.ro/liderul-psd-liviu-dragnea-beneficiaza-de-ambele-proiecte-de-ordonanta-de-urgenta-gratierea-si-dezincriminarea-abuzului-in-serviciu-il-scapa-de-cateva-probleme-cu-justitia-dar-tot-nu-va-putea-fi-441248 accessed 9 December 2024.

[17] ECLI:EU:C:2020:746

[18] Romanian Constitutional Court Dec 390/2021.

[19] ECLI:EU:C:2022:99

[20] Council of Europe Venice Commission’s Urgent Opinion 1105/2022 of 18 Nov 2022 on Three Laws Concerning the Justice System in Romania.

[21] Constitutional Court of Romania, 'Judecători' (Constitutional Court of Romania) https://www.ccr.ro/judecatori/ accessed 9 December 2024.

[22] Ibid.

[23] Constitutional Court of Romania, 'Comunicat de Presă – 28 Noiembrie 2024' (Constitutional Court of Romania, 28 November 2024) https://www.ccr.ro/comunicat-de-presa-28-noiembrie-2024/ accessed 17 January 2025.

[24] Constitutional Court of Romania, 'Comunicat de Presă – 6 Decembrie 2024' (Constitutional Court of Romania, 6 December 2024) https://www.ccr.ro/comunicat-de-presa-6-decembrie-2024/ accessed 9 December 2024.

[25]  Radio Europa Liberă România, 'Cine sunt cei nouă? Judecătorii CCR care au votat în unanimitate anularea alegerilor prezidențiale' (Radio Europa Liberă România) https://romania.europalibera.org/a/cine-sunt-cei-noua-judecatorii-ccr-care-au-votat-in-unanimitate-anularea-alegerilor-prezidentiale-/33229460.html accessed 9 December 2024.

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