NRDO

Diana Botău, Romania’s Constitutional Court and the European Union law: an anxiety of intrusion?

Abstract: The Constitutional Court has analyzed, several times, the compatibility of the Romanian Constitution with European, in view of Article 148 of the Constitution. The tension between the two law systems explains the anxiety with which the Court has dealt with cases that raise the issue of the proper interaction between the national and the European norms. In this respect, the Court has asserted the supremacy of the Constitution over the entire national judicial system and has subjected European norms to a constitutional control when it felt that the latter was constitutionally relevant. On the other hand, the Constitutional Court has established the judicial immunity of European norms without constitutional relevance; in the latter case, the legislators or, sometimes, the lower court judges are asked to remedy possible normative incompatibilities.

At the end of 2016, the Constitutional Court submitted the first preliminary request, in the case Coman et alii, that raised the issue of the freedom of movement and residence within the European Union, exercised equally and without discrimination, of partners within heterosexual and homosexual marriages that were legally established in a Member State that recognizes same sex marriages. There was more at stake than starting an efficient legal dialogue between the Romania’s Constitutional Court and the; through the re/interpretation used by the Court in Luxemburg in defining the terms „spouse” and „marriage”, under European law, the decision in this case coul define the boundaries, slightly hazy until now, of concepts and values that are fundamental to the European project: freedom of movement and the protection of family life.

Keywords: Constitutional Court, Court of Justice of the European Union, constitutionality control, the case Coman et alii, gay marriage