O SURPRINZĂTOARE PROPUNERE DE ELIMINARE A UNEI IMPORTANTE ABATERI DISCIPLINARE DIN CUPRINSUL LEGII NR. 303/2004 PRIVIND STATUTUL JUDECĂTORILOR ŞI PROCURORILOR
A SURPRISING PROPOSAL TO REMOVE AN IMPORTANT DISCIPLINARY OFFENCE FROM LAW 303/2004 ON THE STATUS OF JUDGES AND PROSECUTORS

Summary/Abstract: The author's intention is to carry out an analysis of the proposal to repeal the provisions contained in Law No 303/2004 on the status of judges and prosecutors and which is aimed at disregarding the decisions of the Constitutional Court and the decisions issued by the High Court of Cassation on appeals in the interest of the law. The author notes that the Ministry of Justice's proposal was prompted by the case law of the CJEU, according to which EU law has absolute priority over the national law of the Member States, including the provisions of fundamental laws. Some doctrinal options on the subject are briefly analysed, but some solutions of the constitutional control courts of important EU Member States, including Romania, are also mentioned. The author's choice is to give priority to European law over infra-constitutional laws, not to the provisions of the Constitution. Texts contained in the TEU and the TFEU are invoked in support of this option. It is considered that the CJEU cannot by way of case-law rule on an absolute priority of Union law, as such a solution would seriously undermine the national sovereignty of the Member States and would entail a genuine revision of the Constitution by an entity outside the State authorities, which is inadmissible. The consequence of such a reality is that the repeal of provisions concerning the misconduct of not respecting the decisions of the Constitutional Court cannot be accepted. However, the author welcomes the CSM's qualified endorsement of this proposal, i.e. not to repeal the legal provisions in question.

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