COMENTARIU CRITIC ASUPRA DECIZIEI CURȚII CONSTITUȚIONALE NR. 390 DIN 22 IUNIE 2021 ȘI ASUPRA HOTĂRÂRII DIN 18 MAI 2021 A CURȚII DE JUSTIȚIE A UNIUNII EUROPENE

In the present study we will make some critical comments on two judicial decisions – a decision of the Romanian Constitutional Court and a decision of the Court of Justice of
the European Union – with impact on a problem of high importance for Romania: the nature, the character and the legal force of the Decision 928/2006 of the European Commission
(which institutes the Cooperation and Verification Mechanism) and of the recommendations of the Commission included in the reports issued within the above-mentioned mechanism,
the compatibility with the Union law of the legal provisions concerning the Section for the investigation of the offences committed within the judicial system. The decision of the
Court of Justice was given prior to that of the Constitutional Court, within the procedure of the preliminary ruling unleashed before more Romanian administrative jurisdictions,
and the control of the Constitutional Court was unleashed with the aim at establishing the unconstitutionality of the legal provision concerning the above-mentioned section. Although
the Constitutional Court knew about the decision of the Court of Justice, which ruled that, if the law is found by the national jurisdictions to be incompatible with the Union law, it
must be set aside in the respective litigations, by virtue of the (total) supremacy of the Union law, the constitutional jurisdiction declared the constitutionality of the law and,
more than that, stated that the ordinary jurisdictions are not permitted to set aside the law, because the supremacy of the Constitution is not questioned by the adherence to the Union
and by the Union law, the latter being superior only to the infraconstitutional laws. So, the point is: of the two decisions, which one must the jurisdictions apply? Which one is superior to another?