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The aim of this essay is to explain and to illustrate the development of the doctrine of

supremacy and to evaluate how it has affected the National (Domestic) Law of Romania in

the course of its application to join the EU and subsequently.

According to Pliakos and Anagnostaras (2011 : 109), the main elements between

which the evolution of EU law has taken place are the Court of Justice (ECJ) and the national

courts of the Member States. The evolution of EU law has evolved of course under some

tensions and pressures. The main problem is when it comes to apply and interpret the

European law.

According to Cuthbert (2009 : 33), one central principle established by the European

Court of Justice (ECJ) is the supremacy of Community law over national law. This principle it

is based on the principlepacta sunt servanda )the states have the obligation to observe and to

apply exactly the treaties they are party to ). We can understand better the development of this

principle studying the cases Van Gend en Loos or Costa v ENEL (15.07.1964). According to

Cuthbert (2009 : 35), in the case ofVan Gend en Loos, the ECJ took its first tentative steps in

this process. The case was an ART 234 preliminary reference from the Dutch courts on

whether Art 25 of the Treaty had direct effect.

The doctrine of supremacy in law means that the EU law is above Domestic law, in

general and in the majority of cases, when there is a conflict between the National Law and

the EU Law, the EU Law will prevail. One of the best examples of this predominance is G.

Defrenne v. Sabena, Case 43/75, (1976) ECR 455, where the European Court decided that,

The principle that women and men should receive equal pay, which is laid down by Article

119 EC [now Article 157 TFEU], may be relied on before the national courts

(eurofond.europa.eu). In other words, if there is a conflict, the national courts must ignore the

national law, so that the EU law can take effect. Where EU enforcement requirements comeinto conflict with national procedures and remedies, again, they take precedence and must be

applied by national courts overriding domestic rules (eurofond.europa.eu) .

In order to explain how the supremacy of EU has evolved, we should look on how

Community law is incorporated into national law, on the Treaty basis used to justify

supremacy of Community law, especially Art 10, on the reaction of the Member States to this

development (Cuthbert, 2009 : 34).

But what was the problem? A transfer of sovereignty was required for certain specificareas of policy from the Member States when the EC was established. The Member States

wouldnt have control anymore. This is the reason of all the tensions.

The primary sources of the Community law are the Treaties, but they dont contain

specific mention of the priorities in the relationship between national and EU law.

Romania was accepted in the EU on 1 January 2007. In the case of Romania, it had

passed through challenges in order to enter the European Union. Fortunately, the accession

had contributed to the development of Romania as a state. According to Anastasakis (2006 :

167), what eastern enlargement teaches us is that there has to be commitment on the part of

the European Commission to tackle all the difficult issues during the pre-accession and

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accession process. Romania had issues like corrupt administration, judicial deficits or

economic backwardness, organised crime, informal cooperation.

Robert Schuman, a French Foreign Minister, through his declaration of 9 May 1950

put the bases of a European Community. His aim was to create an organized and vital

Europe. The six founding States (Belgium, Germany, France, Italy, Luxembourg and theNetherlands) established the Treaty of the European Coal and Steel Community (ECSC) ON

18 April 1951. It came into force on 23 July 1953 (Mller, 2002).

According to Mller (2002), Romania made real progress in its process of integration.

Because the geographical position, Romania belonged to the Eastern Block, after the second

World War ( Mller, 2002). Romania didnt want to accept the communism, but the Soviet

intervention had a big influence. The elections werefalsified ( Mller, 2002) and Romania

embark in the disastrous communist system. The first dictator was Gheorghe Gheorghiu

Dej, followed by the beloved Nicolae Ceauescu.

The basic conditions for enlargement are set out in Article 49 of the TFEU: Any

European state which respects the principles set out in Article 6 (1) may apply to become a

member of the Union. It shall address its application to the Council, which shall act

unanimously after consulting the Commission and after receiving the assent of the European

Parliament, which shall act by an absolute majority of its component members. The

conditions of admission and the adjustments to the Treaties on which the Union is founded

which such admission entails shall be the subject of an agreement between the Member States

and the applicant state. This agreement shall be submitted for ratification by all the

contracting States in accordance with their respective constitutional requirements. Article 6

of the Treaty at its 1st paragraph stipulates that The Union is founded on the principles ofliberty, democracy, respect for human rights and fundamental freedoms, and the rule of law,

principles which are common to the Member States. ( Mller, 2002)

According to Tnsescu (2011), Romanian scholars in community law or public

international law tend to accept without hesitation the doctrine of supremacy of EU law,without questioning the constitutional nature of the legal norms declared supreme. A

European Constitution is already in place and it belongs to its own jurisdiction to provide for

rules in this area. Tnsescu (2011) also says that the supremacy of EU law is based on its

intrinsic originality and concerns of EU rules and regulations. The supremacy of the EU law

on the entire national legal order stems directly from the Romanian Constitution.

Accession of a state to EU implies the ratification of some international treaties (the

founding treaties, the modified treaties, some external accords that bind Communities) and the

accomplishment of some political and economic criteria, as well as the adjustment of the

national legislation to the acquis communautaire. Prior to the revision in 2003, Romanian

Constitution did not contain provisions concerning the transfer of state powers to international

organizations or the joint exercise with other states of competencies specific to state

sovereignty. It only contained the general rules of article 11 and 20, developed in the second

chapter of the paper. After the revision, article 148 regulates an exception from the rule,applied only to the European integration, article which provides special rules for the accession

to EU. (Popescu)

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The difficulty of examining the way in which international law takes effect in national

law through the European law derives from the fact that the analysis should be conducted on a

triple level: the general effect of international law in domestic law, the special features that

European Law enjoys in national law and the relation between international law and European

law. (Popescu : 2). In the next lines we will look on how Romanian Constitution regulates the

relation between international law and national law respectively European law and nationallaw.

In Romania, the President and the Parliament have equal legitimacy. The president has

the following functions: to represent the Romanian state in domestic and foreign relations, to

ensure obedience to the constitution and the proper functioning of state institutions, to

guarantee the states independence, unity and integrity.

An international treaty is a source of constitutional law if it accomplishes the

following conditions: it is licit; its application is direct, immediate; the treaty must be ratified

according to the international norms; it must contain provisions of constitutional law.If atreaty Romania is to become a party to comprise provisions contrary to the Constitution, its

ratification shall only take place after the revision of the Constitution, in order to avoid any

contradiction between the international treaty and the Constitution.Constitutional provisions concerning the citizens' rights and freedoms shall be

interpreted and enforced in conformity with the Universal Declaration of Human Rights, with

the covenants and other treaties Romania is a party to. Where any inconsistencies exist

between the covenants and treaties on the fundamental human rights Romania is a party to

and the national laws, the international regulations shall take precedence, unless the

Constitution or national laws comprise more favourable provisions. Romanian legal system

admits as a legal formal source in national law only the legal acts that are adopted by the

representative assembly of the country, namely the Romanian Parliament. Romania has to

exactly observe and in good faith the treaties that are in force, licit and legally concluded

according to the provisions of international law.

Prior to the revision in 2003, Romanian Constitution did not contain provisions

concerning the transfer of state powers to international organizations or the joint exercise with

other states of competencies specific to state sovereignty. It only contained the general rules

of article 11 and 20, developed in the second chapter of the paper. After the revision, article

148 regulates an exception from the rule, applied only to the European integration, article

which provides special rules for the accession to EU. The law of ratification of Romanias

accession is an atypical law in the Romanian legal system, irrespective of the formal or

material aspects.

i

iaccomplishes the following conditions: it is licit; its application is direct, immediate; the treaty must be ratified according to the

international norms; it must contain provisions of constitutional law, Popescu, D.R. The relationship between National law, European law

and International law in a multilevel governance system.