The Role of the Constitutional Courts in Harmonising Criminal Legislation in the EU

Romania’s Experience

Abstract

The study aims to explore the role of constitutional courts in the development of European criminal law by analyzing the use of EU law within the constitutional review of criminal legislation. The case law of the Constitutional Court of Romania provides important benchmarks in this regard, expressed in ways such as: the interpretation of the “cornerstone” of the Constitution making the national normative system “accessible” to EU law, the interpretation of constitutional principles in the sense of the legislator’s obligation to transpose EU law and ensuring normative coherence, the articulation of criminal policies (national and EU), the creation of a “doctrine” on the use of EU law rules within the constitutional review. The case law examination revealed the gradual opening of the CCR towards an interpretation and approach to criminal law in conjunction with the case law of the ECHR in the application of the ECHR, as well as with the standards for the protection of fundamental rights regulated/interpreted or recommended by EU bodies. The intention of the article was not to analyse how European criminal law institutions are reflected in the constitutional review, but to reveal a trend of approach and reporting which, in our opinion, can also be interpreted as a statement of the principle of the need to regulate certain criminal law institutions, even the criminalisation of certain acts, with reference to the general EU framework or objectives. Even if this study does not cover all the issues in the field, it can be a start for proceeding to a comparative law study on the role of European constitutional courts in the development of European criminal law.