Interplay between the European Convention on Human Rights, European Union Law and Romanian Constitution. Evolution and Challenges

Studiu^[1] publicat în volumul In honorem Corneliu Bîrsan, tomul III, Ed. Hamangiu, 2023, p. 665-683.

Introduction. Human rights in European Union – legal framework and guarantees

Fundamental rights are the core element of the rule of law as a basic principle of democracy. Consequently, the catalog of fundamental rights is a central element of each country’s Constitution. At the same time, fundamental rights are protected by numerous conventions and treaties adopted at the international and regional level.

Thus, in the European Union (EU), the 27 member states have their catalogues of fundamental rights written in Constitutions. They are also members of the Council of Europe, with its own rights catalogue, in the Convention for the Protection of Human Rights and Fundamental Freedoms (Convention)^[2]. With the entry into force of the Charter of Fundamental Rights of the European Union (Charter)^[3], through which the EU acquired its own binding source of fundamental rights enjoying the same legal value as the EU founding Treaties, a further catalogue of fundamental rights was added. Article 6 of the EU Treaty^[4] currently reads as follows:

„1. The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adapted at Strasbourg, on 12 December 2007, which shall have the same legal value as the Treaties. The provisions of the Charter shall not extend in any way the competences of the Union as defined in the Treaties. The rights, freedoms and principles in the Charter shall be interpreted in accordance with the general provisions in Title VII of the Charter governing its interpretation and application and with due regard to the explanations referred to in the Charter, that set out the sources of those provisions. 2. The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms. Such accession shall not affect the Union’s competences as defined in the Treaties. 3. Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union’s law”.

As a result, the fundamental rights are protected in EU, at the national level, by national constitutions, at the supranational level, by the Charter and at the international level, by the Convention. Each catalogue provides for different standards of protection and, at the same time, each level has its own “guardian”, meaning the constitutional courts, the European Court of Justice (ECJ)^[5] and the European Court of Human Rights (ECHR)^[6]. How can all these sources and voices be reconciled so as not to create legal insecurity for European citizens? The interplay between different catalogues of human rights is a challenging topic and a source of numerous questions and debates. Recurrent tensions demonstrate that the European legal space is not always a harmonious one, so efforts have to be made in this regard, both by the judges and the legislators.

In our presentation, we will focus on recent developments in the matter, showing, in particular, Romania’s experience, both from the perspective of the institutional dialogue and the reference jurisprudence. The main objective of our presentation is to launch a debate on similar regional experiences, following two essential ideas: harmonization of the standards of protection of human rights and jurisdictional/judicial challenges.

§1. Harmonization of the standards of protection of human rights

1.1. European legal framework concerning human rights-challenges

In a recent paper devoted to a very specific evolution of the interpretation of human rights at the global level^[7], professors Gráinne de Búrca and Katharine Young wisely pointed out that „the meaning of human rights has always been susceptible to multiple and sometimes conflicting interpretations”. It is a valid statement if we refer to the same legal system and the institutional actors involved in interpreting and applying fundamental rights. Moreover, it is a meaningful statement if we refer to a regional protection system, composed of several layers like in EU (national, supranational, international), which interact according to not very well-defined rules or whose definition is influenced by the evolving interpretation of the different type of Courts.

The existence of two regional human-rights catalogues (and also the national/constitutional catalogue) raises the question for individuals to which catalogue they should refer at is their relationship to one another or what should this relationship be?

Some provisions, seemingly the same in all these catalogues, may be narrower or broader in one or the other and some rights may only exist in one of the catalogues, e.g. the right to good administration (Charter of the European Union). This situation also raises the question of whether some catalogues should be used to interpret the scope of a provision in other catalogues. This would create new dynamics between the Constitutions, European Convention on Human Rights and the Charter of the European Union, between national Constitutional Courts, European Court of Human Right and European Court of Justice.

So, how are those catalogues to be applied to avoid the conflicts and individuals obtain the most effective protection possible? Emphasizing the concern to find the answer to this vital question for European harmony, the issue became the subject of the most recent Conference of European Constitutional Courts, hosted in 2021 by the Constitutional Court of the Czech Republic^[8]. The speeches of the presidents of the ECHR, the CJEU, the Venice Commission, the constitutional courts expressed various aspects of the protection of fundamental rights and the role of European judges in articulating the various interpretations of the competing norms in the matter, emphasizing the role of the Conference “to understand it, is to analyse and rationalise these differing catalogues of rights and their relationship with one another”^[9].

As regards, in itself, the relationships between the catalogs of rights and the courts in Europe, it was invoked, for example, the speech given in 2014 at an Opening of the ECHR Judicial Year by former President of the German Federal Constitutional Court, Prof. Dr. Andreas Voßkuhle^[10], who compared the relationship between the national constitutional courts and the European courts to a mobile, meaning a “a kinetic sculpture which consists of an ensemble of balanced parts that can move but are connected by strings or wire.” The image is opposite to that of a pyramidal structure, by pyramid being understood a fixed geometric structure that has a base and a top. It looks that the European human rights protection was better understood as “mobile” and the constitutional courts and the European courts having distinct but complimentary roles which are inherently linked one to the other^[11].

Likewise, it was expressed the opinion that an orderly application of fundamental rights does not necessarily entail a „separated application” of those rights according to their national, supranational, or international origin. Instead, in the European legal space, „the highest level of protection may be achieved by different layers of protection that interact and complement one another”^[12].

It sounds great in theory but, in practice, this interaction is a continuous source of challenges, being difficult to identify a clear methodology to be followed by all parties involved, especially when there are „overlaps” of various incident regulations and the application is carried out by the judge of a national court. Hereinafter, we will present the constitutional framework of reference and the way of reception in the legal order of Romania of the mentioned catalogs of fundamental rights, and then we will emphasize some of the recent developments and challenges in the matter.

1.2. The constitutional framework for the protection of fundamental rights in Romania. Acceptance of the European protection standards and the case law of the ECHR and CJEU

In Romania, the catalogue of fundamental rights, as regulated by the Constitution of Romania adopted in 1991, was enriched following the revision of the Constitution, in 2003, in the sense that new rights or safeguards were introduced.

Fundamental rights, freedoms and duties: Universality (art. 15), Equality of rights (art. 16), Romanian citizens while abroad (art. 17) Foreign Citizens and stateless persons (art. 18), Extradition and expulsion (art. 19), International treaties on human rights (art. 20), Free access to justice (art. 21), Right to life, to physical and mental integrity (art. 22), Individual freedom (art. 23), Right to defence (art. 24), Freedom of movement (art. 25), Personal and family privacy (art. 26), Inviolability of domicile (art. 27), Secrecy of correspondence (art. 28), Freedom of conscience (art. 29), Freedom of expression (art. 30), Right to information (art. 31), Right to education (art. 32), Access to culture (art. 33), Right to protection of health (art. 34), Right to a healthy environment (art. 35), Right to vote (art. 36), Right to be elected (art. 37), Right to be elected to the European Parliament (art. 38), Freedom of assembly (art. 39), Right of association (art. 40), Labour and social protection of labour (art. 41), Prohibition of forced labour (art. 42), Right to strike (art. 43), Right of private property (art. 44), Economic freedom (art. 45), Right of inheritance (art. 46), Living standard (art. 47), Family (art. 48), Protection of children and young people (art. 49), Protection of disabled persons (art. 50), Right of petition (art. 51), Right of a person aggrieved by a public authority (art. 52), Restriction on the exercise of certain rights or freedoms (art. 53).

The Romanian Constitution also establishes clear obligations regarding the relations between national law and European and international law.

– Article 11 – International law and national law;

– Article 20 – International treaties on human rights;

– Article 148 – Integration into the European Union.

The following conclusions arise from those three texts:

– human rights treaties to which Romania is a party form part of the „constitutional block”, with constitutional interpretative value (meaning that the constitutional provisions must be interpreted and applied in accordance with the provisions of international human rights treaties to which Romania is a party), and priority for application in the event of inconsistency with national laws, unless the Constitution or national laws contain more favourable provisions;

– the founding Treaties of the European Union, including the Charter of Fundamental Rights of the European Union, as well as other binding European regulations, constitute a category of international acts with a distinct legal regime in the sense the have priority in case of conflict with provisions of domestic laws; the CCR stated that they have a supra-legislative but infra-constitutional position.

Article 20^[13] of the Constitution offers the legal basis for the direct reliance on international human rights treaties both before the Constitutional Court (CCR) and the ordinary courts, forcing to the interpretation of the Constitution in accordance with the international treaties in the field of human rights to which Romania is a party and establishing the priority of the latter in the event that the interpretation in accordance is not possible, unless the Constitution or national laws comprise more favourable provisions.

The Court held in this respect that „as long as Romania was not a member of the Council of Europe and had not acceded to the European Convention on Human Rights, the interpretation of Article 8 of the Convention, through the relevant decisions of the European Court of Human Rights in Strasbourg, had no relevance to the Romanian legislation and case-law, however, once Romania became a member of the Council of Europe and acceded to the European Convention on Human Rights (Law no. 30/1994, published in Official Gazette of Romania, Part I, no. 135 of 31 May 1994) the approach was fundamentally different. This change is imposed by the Constitution of Romania itself, which in Article 20 (1) specifies that its provisions on human rights and freedoms of citizens shall be construed and enforced in accordance with the Universal Declaration of Human Rights, with the covenants and other treaties Romania is a party, and the European Convention on Human Rights, since 31 May 1994, has became such a treaty.

Thus, the ECHR Convention and the case-law of the ECHR are invoked in many of the decisions of the CCR adjudicating on fundamental rights and freedoms. Sometimes, the case law of the ECHR has led to jurisprudential reversals, which resulted in the uniformization of the fundamental rights protection standards applicable at national and international level.

We shall refer, as examples, to few such cases, structured on constitutional principles/provisions.

a) the case-law of the European Court of Human Rights

– Quality of legislation. Principle of legal certainty Interpreting and applying the constitutional provisions of Article 1 (3), stating that „Romania is a state governed by the rule of law […]”, and of Article 1 (5), stating that „Observance of the Constitution, of its supremacy, and the laws shall be obligatory in Romania”, in accordance with the relevant case-law of the European Court of Human Rights, the Constitutional Court of Romania identified four criteria that need to be observed in the law-making activity, subsumed under the principle of legal certainty.

– Principle of non-retroactivity of the law

On this principle, we mention, by way of example, the case law in which, based on the practice of the European Court of Human Rights, the Constitutional Court held that the principle of retroactivity of the more favourable criminal law applies also in case of minor offences law. The Court rules as such although the constitutional provisions at that time did not provide for such a rule.

– Right to property

The period after 1991 was characterized by the adoption of many regulations with the purpose to repair the injustices committed during the Communist period, the issue of legislation on restitution of property abusively taken is well known, still raising problems in the Romanian legal system, as demonstrated by the very practice of the Court in Strasbourg. The Constitutional Court of Romania had to resolve many exceptions of unconstitutionality on these regulations, the issue relating to property giving raise to mutual references in the documents that the two Courts have issued on the matter. From among the numerous decisions of the Constitutional Court, we mention those that „introduced” into domestic law the case-law of the European Court of Human Rights for to the extensive interpretation of the concepts „good” and „property”, giving them a specific meaning related to international human rights

The very reinterpretation of the CCR’s power to review laws and ordinances through the exception of unconstitutionality was influenced by the Article 6 of the Convention for the Protection of Fundamental Rights and Freedoms, which enshrines the right to a fair trial. Thus, after years of established case law, by which it rejected as inadmissible exceptions of unconstitutionality having as subject-matter the repealed laws, the CCR changed its case law, and found that the procedural requirement meaning that the law be in force at the moment of constitutional review did not comply with the standard of protection of the right to a fair trial enshrined in Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, limiting the access to the constitutional justice.

Consequently, the Court reinterpreted the phrase „in force” contained in the provisions of Article 29 (1) and of Article 31 (1) of Law no. 47/1992 regarding the organization and functioning of the Constitutional Court, considering that it is constitutional to examine the laws or ordinances or the provisions of laws or ordinances whose legal effects continue to be taken even after they are no longer in force^[14]. In this regard, the Court considered that „it is indisputable that the society evolves, and the new political, social, economic, cultural realities must be regulated, found in the content of the positive law. Law is alive, so that, along with the society, it must also adapt to the changes that have occurred. Therefore, laws are repealed, reach their time limit, are amended, supplemented, suspended or simply fall into obsolescence, depending on the new social relationships, requirements and opportunities. However, all these legislative events and the normative solutions they enshrine must be in line with the principles of the Fundamental Law. Once notified, the Constitutional Court has the power to review them, without conditioning this review on the removal of the act criticized for unconstitutionality, regardless of what form, from the active fund of the legislation”. In this way, CCR provided a broader interpretation of its own power, for a more effective protection of the right to a fair trial.

As a general characterization, the acceptance of the Convention into the national law did not cause significant turbulence or tension so that, at this moment, the Convention is incorporated, and to a large extent, embedded into Romanian domestic legal order. However, new challenges determined by the growing interplay between the Convention and EU law are foreseen, an aspect to which we will refer separately.

As regards the relationships with EU law and, implicitly, the acceptance of the EU Charter of Rights in Romania, these are governed by the provisions of Article 148 of the Constitution, which enshrines the priority of the binding EU treaties and acts in relation to domestic laws. As for the enforcement of these provisions at the domestic level, a distinction must be made between the power of the CCR as guarantor of the supremacy of the Constitution, and that of the courts of law, to interpret and enforce the law in specific cases.

After a evolution of its case law^[15], the CCR admitted that can use a rule of European law within the constitutional review as a rule interposed to that of reference (Constitution), subject to certain conditions: „this rule must be sufficiently clear, precise and unambiguous in itself or its meaning must have been clearly, precisely and unequivocally established by the European Court of Justice (…), the rule must be circumscribed to a certain level of constitutional relevance, so that its legal content might support the possible infringement by the national law of the Constitution – the only direct reference standard in its constitutional review. In such a case the approach of the Constitutional Court is distinct from the simple application and interpretation of law, jurisdiction belonging to courts and administrative authorities, or from any issues of legislative policy promoted by Parliament or the Government, as appropriate”. The Court stated that „in the light of cumulative set of conditionality, it is up to the Constitutional Court to apply or not in its constitutional review the judgments of the European Court of Justice or to formulate itself of preliminary questions to establish the content of the European rule”^[16]. The distinction in terms of competence of the CCR and courts of law is given by the „constitutional relevance of EU law norms”.

The most representative case where the CCR found the constitutional relevance of EU law and applied it in constitutional review^[17] relates to the recognition of the effects of a marriage legally concluded abroad between a citizen of the EU and his same-sex spouse, a national of a third country, in relation to the right to family life and to the right to freedom of movement, from the perspective of the prohibition of discrimination on the basis of sexual orientation. It is the only situation in which the CCR formulated a preliminary referral to the CJEU. The „interposed” norm (with constitutional relevance) was the Directive 2004/38 of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) no. 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194 /CEE, 73/148/CEE, 75/34/CEE, 75/35/CEE, 90/364/CEE, 90/365/CEE and 93/96/CEE(2). CCR considered that there is uncertainty regarding the interpretation of some concepts used by this Directive, in conjunction with the Charter of Fundamental Rights of the EU and with the recent case law of the CJEU and the ECHR, concerning the right to family life, and it decided to refer to the CJEU. Consequently, within the constitutional review of the provisions of art. 277 para. (2) and (4) of the Civil Code, the CCR applied (as interposed to the Romanian Constitution) the provisions of European law, as interpreted by the CJEU (Grand Chamber) in the Judgment of 5 June 2018, pronounced in the Case C-673/16^[18]. The CCR upheld the exception of unconstitutionality and found that the provisions of art. 277 para. (2) and (4) of the Civil Code are constitutional in so far as they permit the granting of the right of residence on the territory of the Romanian State, under the conditions laid down in European law, to the spouses – citizens of the Member States of the European Union and/or citizens of non-member countries – of marriages between persons of the same sex concluded or contracted in a Member States of the EU^[19].

As regards the courts of law, in the light of art. 148 of the Constitution, the CCR ruled that they are competent to determine whether there is a contradiction between national law and European law. Any Court, in order to reach a correct and legal decision, may, of its own motion or at the request of the party, refer a question for a preliminary ruling within 7 the meaning of art. 267 of the Treaty on the Functioning of the European Union to the Court of Justice of the European Union.

As opposed to the acceptance of the Convention, the acceptance of EU law has determined some tensions, especially more recently, within the controversy that persists in the EU space regarding the relationship between EU law and the Constitutions of the Member States. In an established case law, the CCR held the supremacy of the Romanian Constitution and the intermediate position of EU law in the domestic legal order^[20], while the CJEU proclaims the primacy of the EU law over domestic legal orders. The tensions that marked the recent period concerned, inter alia, the independence of the judges, a topic that polarized the public discussions in the last years in Romania and also in Europe. Several “waves” of preliminary referrals formulated by the Romanian Courts determined the ECJ to issue crucial decisions, with high impact on the relations with the constitutional courts of the EU member states^[21]. We have in mind especially joined Cases C-83/19, C-127/19, C-195/19, C-291/19, C-355/19 and C-397/19, Romanian Judges’ Forum Association against the Judicial Inspectorate (Judgment of 18 May 2021), Joined Cases C-357/19, C-379/19, C-547/19, C-811/19 and C-840/19, Euro Box Promotion SRL (Judgment of 21 December 2021), and Case C-430/21^[22] where the CJEU stated that „The second subparagraph of Articlev19(1) TEU, read in conjunction with Article 2 and Article 4(2) and (3) TEU, with Article 267 TFEU and with the principle of the primacy of EU law, must be interpreted as precluding national rules or a national practice under which the ordinary courts of a Member State have no jurisdiction to examine the compatibility with EU law of national legislation which the constitutional court of that Member State has found to be consistent with a national constitutional provision that requires compliance with the principle of the primacy of EU law. The second subparagraph of Article 19(1) TEU, read in conjunction with Article 2 and Article 4(2) and (3) TEU, with Article 267 TFEU and with the principle of the primacy of EU law, must be interpreted as precluding national rules or a national practice under which a national judge may incur disciplinary liability on the ground that he or she has applied EU law, as interpreted by the Court, thereby departing from case-law of the constitutional court of the Member State concerned that is incompatible with the principle of the primacy of EU law”.

This sequence of decisions, expression of a tense dialogue, determined lively doctrinal debates in Romania, workshops and conferences such as „CJEU-CCR a necessary dialogue”^[23]. A question that could be raised, considering the recent developments of the ECHR practice, is the reflection of these decisions on the protection of fundamental rights and freedoms in the specific cases that the courts of law will settle.

§2. New challenges. „The growing interplay between the Convention and EU law”^[24] reflected at the domestic level

2.1. General remarks

The few benchmarks presented with regard to Romania prove that in the attempt to identify common standards in multilevel juridical systems, the courts’ harmony is an important challenge. Harmonious reasoning is needed both horizontally, between the courts of law and constitutional jurisdiction, and vertically, between the courts situated at different levels of jurisdiction. Difficulties and challenges might appear at any of these levels.

Thus, as far as the horizontal relationships between the national courts of law and the constitutional courts are concerned, it is clear that they differ within the EU Member States, depending, above all, on the enshrined model of constitutional review. In Romania, where the Kelsenian, European model of constitutional review is carried out, the judge from the traditional justice system holds the monopoly of interpreting the infra-constitutional legislation, but also obligations stemming from Articles 20 and 148 of the Constitution, which establish the priority of the international treaties in the field of human rights when they provide higher protection than the domestic law and, namely, the priority of the binding EU rules when they infringe the domestic law. The interpretation and application of the same constitutional texts – this time with erga omnes binding nature, is carried out by the CCR. Theoretically, the different powers of the two categories of courts would protect them from such infringements. However, reality shows that such infringements can occur. Likewise, even if the case law of the CCR established in the short time that passed since Romania’s accession to the EU (on a historical scale, of course), set out certain limits between the power of the constitutional court and that of the courts of law in the application of EU law, these are not clearly strengthened.

As for the vertical relationships, we have already stated that if the dialogue of the national courts of law with the ECHR did not raise significant problems, the one with the CJEU was marked by certain tensions, also common to other EU States, within the priority versus primacy dispute in terms of EU law.

However, certainly most challenges are determined by mixed reports, which involve all three categories of courts: national, the ECHR and the CJEU, a context in which the topic of judicial dialogue is one of the most frequently addressed in recent years. As emphasized^[25], since a harmonious fashion to apply these sources of law is needed, it is equally essential for national courts, constitutional courts, the ECJ, and the European Court of Human Rights engage in a constant dialogue based on mutual trust. The recent jurisprudential developments, especially in the sphere of the relationships between the ECHR and the CJEU, lead to new perspectives for reflection in this regard and a necessary adaptation of the national courts of law.

2.2. The growing interplay between the Convention and EU law and domestic law

In principle, the existence of two more catalogs of fundamental rights in Europe, along with those established in the Constitution, can only be in favour of individuals. However, there is also the risk of different interpretations of the same right by the ECHR and the CJEU. Also, problems arise for the domestic courts of the EU Member States when they have to combine fundamental rights under EU and Convention law which set different protection levels. In such a situation, it was held in an opinion that it is safe to assume, as the result of a combination of art. 52(3) of the EU-Charter and art. 53 of the Convention, that domestic courts should apply the higher of the two levels. However, in practice, this is not easy to achieve, implying a genuine methodology of constitutional interpretation, based on a deep knowledge of both the CJEU and ECHR case-law.

As for the approach of the CJEU, although it is not yet a party to the European Convention, the analysis of its decisions reveals the fact that it was considered related to the case law of the ECHR, a fact that led to the development of a horizontal dimension of the relationship between the two courts, necessary to achieve a genuine European legal dialogue. To this effect, we consider significant the emphasis and distinctions of the president of the CJEU in the same Conference that we invoked, according to which “as to the ECHR and the Charter, it is worth noting that although both catalogues are committed to protecting fundamental rights, their respective systems of protection do not function in precisely the same way^[26]. Whilst the Convention operates as an external check on the obligations imposed by that international agreement on the Contracting Parties, the EU’s Charter is an internal component of the rule of law within the EU. As a result, the meaning and scope of the rights recognised by the Charter that correspond to those protected under the Convention are constantly and directly influenced by the case law of the ECHR, (…) on the contrary, the Charter invites cooperation with Strasbourg, even where EU law has followed its own autonomous path. (…) In the same vein, it is the Charter itself that requires the Court of Justice to interpret fundamental rights in harmony with the constitutional traditions common to the Member States. That harmony does not, however, rule out the adoption of a uniform standard of protection at EU level that prevents national (constitutional) courts from applying higher standards. In the light of the seminal judgment of the Court of Justice in Melloni, this means, in essence, that where a normative conflict between provisions of national (constitutional) law and EU law occurs, in a situation where the EU legislator has fully harmonized the level of protection of a fundamental right, the compatibility of a national measure with such a right is to be examined in the light of EU law, and not according to national constitutional standards^[27]. Conversely, in line with the judgment of the Court of Justice in Åkerberg Fransson, where there is no such harmonisation, national standards that are higher than those guaranteed by the EU Charter may apply, provided that „the primacy, unity and effectiveness of [EU] law are not thereby compromised”^[28].

As for the viewpoint of the ECHR, we consider significant the case law emphasized in the sense that non-compliance with EU Law is a violation of the ECHR, knowing a recent growing evolution.

Therefore, in the case of Spasov v. Romania (27122/14, 6.12.2022), the ECHR found that the applicant, the owner and captain of a vessel registered in Bulgaria who was fishing in Romania’s exclusive economic zone, had been the victim, inter alia, of a denial of justice (art. 6 of the Convention) because he had been convicted on the basis of Romanian criminal law which previously had been found to be in breach of EU law, notably the rules of the Common Fisheries Policy, by the European Commission. By not applying these rules, which had direct effect in the Romanian legal order and prevailed over national law, the Romanian courts had made a manifest error of law^[29].

Also, in the recent case of Moraru v. Romania (64480/19, 8.11.2022) the ECHR found a violation of Article 14 of the Convention (prohibition of discrimination) taken together with Article 2 of Protocol No. 1 to the Convention (right to education) on account of the failure by the domestic authorities to put forward any reasonable and objective justification for the disadvantage faced by the applicant, whose height and weight were below the statutory thresholds, in the admission process to study military medicine. In terms of the interplay between the Convention, EU law and the domestic law, ECHR found, among other considerations, that in adjudicating the applicant’s case, the Romanian courts failed to „meaningfully engage” with the relevant case-law of the CJEU which the applicant had invoked before them, meaning the ruling in Kalliri (C-409/16) (§§ 24 and 54)^[30].

This development is a positive one, leading to a convergence of the standards applicable to the protection of fundamental rights and, therefore, to the same language of fundamental rights applied by the ECHR and the CJEU.

However, from the perspective of the national judge, we consider that it deserves more attention, since the concept „meaningfully engage” seems to let a large margin of appreciation of European Court of Human Rights in terms of the action to reinforce the compliance of national Courts with the European Courts of Justice case-law^[31]. The need for a specialized national judge on the European law component is becoming increasingly clear.

Conclusions. The need for strengthening the protection of fundamental rights in the EU

At EU level, legal certainty and the preservation of both the constitutional status of the EU and the Member States, and a future of their integration, imply the use of the same language of constitutional law, both on the protection component of fundamental rights. Tensions must be removed especially in this filed. Tensions between Courts directly influence the evolution of the states and even the relationship between them, not to mention a regional supranational entity, such as the EU. Tensions can undermine the role of constitutional justice to ensure a healthy balance and respect of the powers and the competencies of the public authorities, as well as the effectiveness of protecting human rights. Disputes of case law must be avoided because there are no winners, only losers, and we are considering the realization of fundamental rights and freedoms and the rule of law here.

Considering these few main ideas, our presentation is an open invitation to a global dialogue dedicated to harmonizing standards for protecting fundamental rights and, with reference to this objective, to the dialogue between the courts.

It is interesting to compare how the standards are harmonized and whether the courts engage in dialogue in other regions of the world where multi-level jurisdictions operate regarding the protection of fundamental rights.

Finally, the protection of fundamental rights at the regional and global level is a shared responsibility.

Footnotes

^[1] Presented at The I International Congress of Comparative and Constitutional Law, Cuba CON-PARA, Havana, April 4-6, 2023.

^[2] Available at: https://www.echr.coe.int/documents/convention_eng.pdf, accessed 5 March 2023.

^[3] Available at https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A12012P%2FTXT, accessed 5 March 2023.

^[4] Available at: https://eur-lex.europa.eu/resource.html?uri=cellar:2bf140bf-a3f8-4ab2-b506-fd71826e6da6.0001.02/DOC_1&format=PDF.

^[5] Description available here: https://curia.europa.eu/jcms/jcms/j_6/en/, accessed 5 March 2023.

^[6] Description available here: https://www.echr.coe.int/Pages/home.aspx?p=home.

^[7] G. De Búrca, K. Young, The (Mis)Appropriation of Human Rights by the New Global Right: An Introduction to the Symposium (August 01, 2022). NYU School of Law, Public Law Research Paper Forthcoming, Boston College Law School Legal Studies Research Paper Forthcoming, Available at SSRN: https://ssrn.com/abstract=4335288.

^[8] The XVIII^th Congress of the Conference of European Constitutional Courts – General Report https://www.coe.int/en/web/venice-commission/-/event-2593; National Reports https://www.cecc2017-2020.org/congress/xviiith-congress/national-reports/.

^[9] Robert Spano, President of the ECHR.

^[10] https://www.echr.coe.int/Documents/Dialogue_2014_ENG.pdf#page=36.

^[11] Ibidem.

^[12] President of the CJUE, Koen Lenaerts, referring to Polakiewicz, Europe’s multi-layered human rights protection system: challenges, opportunities and risks, 2016, https://www.coe.int/en/web/dlapil/speeches-of-the-director/-/asset_publisher/ja71RsfCQTP7/content/europe-s-multi-layered-human-rights-protection-system-challenges-opportunities-and-risks?inheritRedirect=false#_ftn2.

^[13] Art. 20. International treaties on human rights: „(1) Constitutional provisions concerning the citizens’ rights and liberties shall be interpreted and enforced in conformity with the Universal Declaration of Human Rights, with the convenants and other treaties Romania is a party to. (2) Where any inconsistencies exist between the covenants and treaties on the fundamental human rights Romania is a party to, and the national laws, the international regulations shall take precedence, unless the Constitution or national laws comprise more favourable provisions”.

^[14] Decision no. 766 of 15 June 2011, Official Gazette no. 549 of 3 August 2011.

^[15] S. Deaconu, Relația dintre dreptul UE și Constituția României. Diverse abordări (The relationship between EU law and the Romanian Constitution. Various approaches), in V. Stoica (ed.), C.J.U.E. și C.C.R. Identități în dialog (CJEU and CCR Identities in dialogue), Universul Juridic Publishing House, 2022, p. 243.

^[16] Decision no. 668/2011, published in the Official Gazette no. 487 of 8 July 2011; see also Decision no. 1088/2011, published in the Official Gazette no. 668 of 20 September 2011; Decision no. 921/2011, published in the Official Gazette no. 673 of 21 September 2011; Decision no. 903/2011, published in the Official Gazette no. 673 of 21 September 2011.

^[17] Decision No 534/2018, published in the Official Gazette no. 842 of 3 October 2018.

^[18] C-673/16, Coman and Others, https://curia.europa.eu/juris/liste.jsf?num=C-673/16, the only case in which the CCR has referred preliminary questions to the CJEU so far, available at: https://curia.europa.eu/juris/document/document.jsf;jsessionid=228B64B67CC671C4AEFDFFDAF7A01202?text=&docid=202542&pageIndex=0&doclang=RO&mode=lst&dir=&occ=first&part=1&cid=86360, accesed 1 February 2023.

^[19] Decision No 534/2018, published in the Official Gazette no. 842 of 3 October 2018.

^[20] Decision No 80/2014, published in the Official Gazette no. 246 of 7 April 2014: „The Fundamental Law of the State – the Constitution – is the expression of the will of the people, which means that it cannot lose its binding force just by the existence of an inconsistency between its provisions and the European ones. Likewise, accession to the European Union cannot affect the supremacy of the Constitution over the entire legal order”.

^[21] M. Moraru, R. Bercea, The First Episode in the Romanian Rule of Law Saga: Joined Cases C-83/19, C-127/19, C-195/19, C-291/19, C-355/19 and C-397/19, Asociația Forumul Judecătorilor din România, and their follow-up at the national level, European Constitutional Law Review, 18(1), 82-113.

^[22] https://curia.europa.eu/juris/document/document.jsf?docid=254384&doclang=ro&mode=req&occ=first&part=1&cid=2515584&fbclid=IwAR2tcN3E-WYEhLej1beZeiHQS1eCM2uKMuiAe-E4jsLPn6o4xYatklE-GZE.

^[23] https://evenimente.juridice.ro/cjue-ccr-un-dialog-necesar.

^[24] J. Callewaert, Interplay between the European Convention on Human rights and EU law: recent case-law, see https://johan-callewaert.eu/echr-%e2%86%94-eu-law/.

^[25] President of the CJUE, Koen Lenaerts, in the Conference of European Constitutional Courts in 2021.

^[26] O’Leary, Courts, charters and conventions: making sense of fundamental rights in the EU, Irish Jurist 56 (2016), p. 9.

^[27] Judgment of 26 February 2013, Melloni, C-399/11, EU:C:2013:107.

^[28] Judgment of 26 February 2013, Åkerberg Fransson, C-617/10, EU:C:2013:105, parag. 29.

^[29] See J. Callewaert, Interplay between the European Convention on Human rights and EU law: recent case-law, https://www.linkedin.com/posts/johan-callewaert-148873247_humanrights-echr-europeanunion-activity-7017938519994040320-ZuVA/?utm_source=share&utm_medium=member_android&fbclid=IwAR0E4fw-cWHYLW61KfYZhYuQqdq3Mfj6bF9DbqLddttUEBXBq4QktBMBHhA.

^[30] Ibidem.

^[31] See also Spasov v. Romania (27122/14, 6 December 2022).