Academic journal article Contemporary Readings in Law and Social Justice

The European Union Court of Justice Jurisprudence as a Source of National Law

Academic journal article Contemporary Readings in Law and Social Justice

The European Union Court of Justice Jurisprudence as a Source of National Law

Article excerpt

1.Introduction

In the current configuration of Europe, Romanian legal system (Nicolau and Lupu, 2010: 99) had to meet the requirements imposed by the interaction of the two legal systems, Roman-Germanic and Anglo-Saxon, which defines the European legal environment. The classical legal theory classifies the national sources of law as formal and material (Djuvara, 1995: 308), written and unwritten, official and unofficial and direct and indirect (Popa et al, 2005: 163). "Among the formal sources of law, jurisprudence and doctrine are more interpretative than creative sources of law and jurisprudence main role is to interpret the law and only secondary to create new legal rules, because the judge's mission is first and foremost to enforce the law. Unlike doctrine, whose opinions are optional, jurisprudence is compulsory, its action being direct and immediate." (Hamangiu et al, 2002: 10) Even if not acknowledged in Romanian legal system, judicial precedent is frequently present in judicial activity in both European Court of Human Rights and European Union Court of Justice decisions, which, according to article 11 and 20 in Romanian Constitution are part of the national law along with the treaties signed by Romania and national courts' decisions. Article para 2 and 3 in Constitution sanctions direct action in national law for European Union law. Interpreting these texts, both High Court of Cassation and Justice and Constitutional Court admitted direct action in Romanian law that is their character of sources of law, for both European Court of Human Rights and European Union Court of Justice jurisprudence. European Court of Human Rights final decisions are published under the authority of the Registrar. The Registrar is also liable for publishing the official collection with chosen decisions as well as all useful documents considered as such by the Court's President (Nicolau, 2012: 86).

Talking about European Union Court of Justice activity, we will mention that the whole community legal order is based on the principles of direct effect and European law's priority over national law. According to Lisbon Treaty (signed by EU member states on December 13, 2007 and enforced on December 1, 2009), the Treaty amends the Maastricht Treaty regarding European Union and Roma Treaty concerning European Economic Community. The Roma Treaty was renamed as the European Union Treaty), the Court of Justice interprets European legislation to make sure it is unitary applied in all EU countries (article 19). The Court of Justice main competence regards three categories of cases: verifying European law legality, actions against member states for failing to fulfill EU obligations and preliminary ruling procedure. The most important prerogative concerning verifying the legality is annulment action (article 230 EC Treaty). The petitioner requests annulment of an EC/EU legal rule, which is either a regulation, a directive, or a decision adopted by a European Union institution. The Court of Justice is exclusively competent concerning the petitions of a member state against European Parliament and the Council of Ministers, except Council's decisions on state aid, anti-dumping and implementing measures, or the petitions filed by a European Union institution against another EU institution. The Court of first instance is competent to judge the petitions concerning this type of measures and especially petitions filed by individuals.

Another area of verifying the legality in the community litigation is the action of refraining to act. It involves revising the legality of European Community institutions' refraining to act. However, such a petition can be filed only after the institution concerned was requested to act. If restraining to act is considered illegitimate the institution concerned is responsible for ceasing the refraining to act, by adequate measures. The competence to decide for this kind of action is split between the Court of Justice and the Court of First Instance, according to the same criteria valid for the annulment action. …

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