Developing Billiard Skills: The CJEU Judgment in Euro Box Promotion, a Reaction to Recent Romanian Constitutional Case Law

Introduction and Background

Shortly before Christmas, the CJEU delivered a decision in Euro Box Promotion and Others which is likely to open a new chapter in its relationship with national constitutional courts. Reasons for the judgment were several references made by Romanian courts. In the national proceedings before the referring courts, several Romanian politicians, belonging both to the executive and the legislature, were accused of corruption, not only of violating national law but also affecting EU financial interests, in particular misusing EU funds. The reason for the references were the relatively recent judgments of the Romanian Constitutional Court which effectively banned certain criminal fraud proceedings against national (active and former) politicians. 

To understand the Romanian background to the case in hand, one has to point out that after the Communist downfall in 1989, the legal and political transition in Romania had its ups and downs. The 1991 Constitution, a milestone itself, installed a constitutional court which had over the last decades consolidated the current legal system, leading, among other topics, also to a certain strengthening of social policies in Romania. The most recent constitutional amendment in 2003 augmented the standing of the Romanian Constitutional Court. But contemporarily, there are issues of EU law to consider.

According to a referring court in the present case, the Romanian Constitutional Court’s decision No. 685/2018 (among others) violated EU law. This decision led – based on a questionable technicality of court composition – to the annulment of a decision by the Romanian Supreme Criminal Court, thus making serious fraud against the Union’s financial interests effectively possible (para. 66 of the Judgment). The referring courts in toto therefore asked the CJEU whether EU law allowed them to disregard the constitutional judgments and proceed with the actions against the accused politicians. The references also noted that such a disregard would lead to internal disciplinary consequences for the Romanian judges, given the fact that any failure to comply with Romanian constitutional judgments is to be sanctioned based on the relevant Romanian Law Nr. 303/2004 (paras 55-56 of the Judgment). The calamities the referring Romanian courts encountered were met quite efficiently by the present CJEU decision, which – in its core elements – can be seen in an analogy to the popular British sport of snooker.

The case has the potential to open another spiral of action and reaction between the CJEU and a national constitutional court, as it did famously from the 1970s onwards, engaging the EC judges and their German counterparts in the Solange saga. It has taken the CJEU and the Bundesverfassungsgericht years to establish a delicately balanced truce, with an end to the saga not yet in sight. In Euro Box Promotion, however, the CJEU has taken a different approach, because it bases its decision both on key primary and secondary EU law, as we will see a fiscal norm and a norm with relevance to the matter of accession to the EU.

The Court’s Judgment and Some Comments

For reasons of practicality, the Court combined the references and delivered a single, combined decision (para. 112). The CJEU’s response to the preliminary references was crystal clear: for the sake of primacy of EU law, a national rule, whereby any failure to comply with constitutional judgments leads to disciplinary sanctions, is in breach EU law. It came to this conclusion, first, by relying on Decision 2006/928/EC – a monitoring mechanism of the judicial reforms necessary in light of Romania’s accession to the EU, intending to ensure the rule of law (as referred to in Article 2 TEU). Second, the Court used the delicate matter of fiscal stability through EU primary law guarantees (Article 325 TFEU).

• The Continued Importance of Sticking to Accession Requirements

In underlining Decision 2006/928, the Court emphasised that the monitoring mechanism of necessary judicial reforms for Romania’s accession is still binding on Romania (paras 157-166). This means that Romania continues to be obliged to take appropriate measures to achieve the relevant requirements of the Decision to respect the rule of law (see para. 175 and ground 1 of the ruling).

This argument made by the Court is an important reminder for countries interested in becoming an EU member in the future to improve – where necessary – their legal systems to be able to participate in the Union. The EU will make sure, as underlined here by the CJEU, to monitor such improvements carefully, since its area of freedom, security and justice (Article 3(2) TEU), necessitates mutual trust among the Member States and therefore continuous efforts of the interested state to have an impartial, independent and efficient judicial and administrative system (para. 159).

The Court’s argument on Decision 2006/928 is also an important acquis for any further discussion regarding the rule of law backsliding of current Member States. In relying on the Decision, the CJEU skillfully managed to defend its jurisdiction in this case against accusations of acting ultra vires, notably by the Polish government (see para. 131). The Polish government had pointed out that the EU lacked any form of competence in the field of the legal organization of the Member States, which could be easily invalidated by the CJEU in referring to the Decision. Therefore, the Court’s argument based on the Decision might be considered a broader call to order in response to its recent experiences in the relationship between the EU and Hungary and Poland. It might, however, also be a more prophylactic measure, an attempt to avoid the repetition of such experiences with Romania.

• Having an Eye on the Union’s Fiscal Stability

The present case does not only affect the judicial organization of Romania but also concerns the protection of the Union’s financial interests. In this context, the CJEU held that the obligation under Article 325 TFEU is to protect against fraud or other illegal activities that run counter to the Union’s financial interests (paras 181 et seqq.). Said norm asks both the Union and the Member States to be particularly careful about any practice violating such interests and offers a strong basis for their necessary cooperation in that respect.

In this context, the danger of a systemic risk of impunity for serious fraud against the Union’s financial interests, an impunity made possible because of national constitutional judgments (i.e. like the abovementioned judgments of the Romanian Constitutional Court), is unacceptable. Such a danger of impunity breaches Article 325 TFEU (para. 213). Therefore, even judgments of national constitutional courts to that effect can breach EU law (see ground 2 of the ruling). It follows that, according to the fundamental principle of primacy of EU law, national courts are required to apply the relevant provisions of EU law and disapply national rules in violation thereof, even if they are of constitutional rank (paras 251-252).

It seems only consistent that the CJEU would use a primary legal norm such as Article 325 TFEU, which is of huge interest not only to the Union but also to its Member States. It was not too long ago, namely in mid-2021, that the European Public Prosecutor’s Office opened its doors, following lengthy discussions and a quite difficult period of negotiations about an enhanced cooperation, both after the 2013 Regulation Proposal and its subsequent successful adoption in 2017. This secondary legal act is especially keen on avoiding anything which could come close to a violation of EU financial interests.

Concluding Thoughts and a Playful Analogy

The Court’s decision in Euro Box Promotion and Others, in my opinion, is notable for two reasons in particular. First, the Court encourages national courts to use the preliminary reference procedure more actively in comparable situations, demonstrating its willingness to support national judges who face internal pressures not to comply with EU law (see also para. 260). Second, the Court’s judgment also brings a new dimension to the discussion of the primacy of EU law. The CJEU convincingly uses both Article 325 TFEU on the Union’s financial interests, as well as a Decision as part of the Romanian accession process to the EU to emphasise primacy. Originally, Costa v E.N.E.L. and Simmenthal II had based the principle of primacy, much less concretely, on the establishment of an entirely new legal order. The present decision in Euro Box Promotion, due to its very specific EU legal bases, made potential ultra vires-criticisms much harder to substantiate.

The Court’s decision brings to mind a sport widely popular in the UK: snooker. It is not only about potting (Section 2 (7) of the Official Rules of the Games of Snooker and English Billiards (OR)) different coloured and red balls directly by using a white cue-ball (Section 2 (4a) OR), but also – if potting is not possible in certain situations – to make the opponent suffer through placing the cue-ball behind any coloured ball, creating difficulties for playing the next move (Section 2 (17) OR). The latter elements define the very word “snooker” in this billiard context: it might as well be used metaphorically, as depicting an obstacle being put in the way of another person.

In our present case, Euro Box Promotion and Others, the snooker frame (Section 2 (1) OR) could be seen as the general aim of achieving further integration within the EU – with slightly different approaches to its feasibility: the danger of a systemic risk of impunity for serious fraud especially against the Union’s financial interests, an impunity possible through national judgments, seemed unbearable to the CJEU judges. Henceforth, contra decisions even of national constitutional courts seem unacceptable; as unacceptable would be any sort of unsporting conduct in a snooker game (Section 4 (1) OR).

I should note, of course, that the CJEU would most likely not agree if – following the playful snooker parallelism – one were to consider national constitutional courts as their “opponents”. Supposedly, both the CJEU and the national courts are all in the same ship, aiming at the progress of European integration. Historically, the Court of Justice’s relationship namely with the Bundesverfassungsgericht has indeed been a difficult one; in my impression though, a mutual understanding had been reached grosso modo over the last years, topics of the likes of the Public Sector Purchase Programmes aside.

It goes without saying that the project of further European integration badly needs a sovereign interpreter of the EU primary and secondary law, as well as a general acceptance of its interpretative sovereignty. Who – if not the Court of Justice – should be institutionally entitled to play that role, considering in particular the delicate topic of the Union’s financial interests? It was therefore quite wise of the Court to underline Article 325 TFEU in this context; the Union’s financial interests being a supranational topic of integration not easily matched by particular national interests. Thereby, the Court of Justice put, so to say, the cue-ball quite effectively behind a coloured one, making it – at the very least – difficult for any national, and even a constitutional, court to counterargue in conformity with EU law: a snooker which famous player Ronnie O’Sullivan, for instance, could be proud of, and a snooker necessary to uphold and consolidate the Court of Justice’s sovereignty of interpretation regarding EU law.