The Independence of Justice as Proxy for the Rule of Law in the EU - Case Study - Romania

• Autore: Elena Simina Tanasescu
• Carica: Full Professor of Constitutional and European Law, University of Bucharest, Judge of the Constitutional Court of Romania
• Pagine: 102-123

ISSN: 2612-6672

3 • 1 • 2021

E. Simina Tănăsescu

The Independence of Justice as Proxy

for the Rule of Law in the EU

- Case Study - Romania

https://riviste.unimi.it/index.php/NAD/index

The independence of justice as proxy

for the rule of law in the EU -

Case study - Romania

Elena Simina Tănăsescu

Abstract

The concept of rule of law has been addressed as a formal or as a substantive notion. Although it

does not enjoy a generally accepted academic definition and its practical transposition varies

according to the implementing State, it is a founding value and a functional necessity for the

European Union. However, the recent case law of the ECJ on this matter seems to narrow down

the concept of rule of law to one of its elements, namely the independence of justice. This is due

to the specific context in which the ECJ had to develop the standard, and which is linked to the

rule of law backsliding noticed over the past few years in Hungary and Poland and, to some extent,

in Romania. In the specific case of Romania, the ECJ displayed a moderate stance, possibly due

to the fact that an institutionalised monitoring of the rule of law has been in place since 2007.

Keywords: Rule of law – independence of justice – Romania.

CONTENTS: 1. Introduction. 2. Rule of law as an abstract concept. 3. Rule of law and the

independence of justice. 4. Rule of law in the European Union: from value to legal

standard. 5. Rule of law and democratic backsliding within the EU. 6. Why the

independence of justice matters. 7. Rule of law and independence of justice in Romania.

7.1 Independence of justice – Romanian legal framework. 7.2 Independence of justice –

Romanian legal and institutional reforms. 7.3 Independence of justice – preliminary

questions of Romanian courts. 7.3.1 Primacy of EU and the specifics of the Mechanism

of Cooperation and Verification instituted by Decision 2006/928/EC. 7.3.2 Judicial

organisation and disciplinary regime of magistrates. 7.3.2.1 Disciplinary regime of

magistrates. 7.3.2.2 Composition of courts specialised in the fight against corruption. 8.

Conclusion.

 Full Professor of Constitutional and European La w, University of Bucharest, Judge of the Constitutional

Court of Romania. The essay was submitted to double blind peer-review.