Summaries of judgments made in collaboration with the Portuguese judge and référendaire of the CJEU (Nuno Piçarra and Sophie Perez)

 ▪

Judgment of the Court (Grand Chamber) of 20 April 2021, Repubblika v Il-Prim Ministru, Case C-896/19, EU:C:2021:311

Reference for a preliminary ruling – Article 2 TEU – Values of the European Union – Rule of law – Article 49 TEU – Accession to the European Union – No reduction in the level of protection of the values of the European Union – Effective judicial protection – Article 19 TEU – Article 47 CFREU – Scope – Independence of the members of the judiciary of a Member State – Appointments procedure – Power of the Prime Minister – Involvement of a judicial appointments committee

1. Facts

Following the appointment, in April 2019, of new members of the judiciary, Repubblika – an association whose purpose is to promote the protection of justice and the rule of law in Malta – brought an actio popularis before the Prim’Awla tal-Qorti Ċivili – Ġurisdizzjoni Kostituzzjonali (First Hall of the Civil Court, sitting as a Constitutional Court, Malta), with a view, in particular, to seek a declaration that, by reason of the existing system for the appointment of members of the judiciary, as governed by the Constitution, the Republic of Malta is in breach of its obligations under, inter alia, the combined provisions of the second subparagraph of Article 19(1) TEU and of Article 47 CFREU. The constitutional provisions concerned, which had remained unchanged from the time of their adoption in 1964 until a reform in 2016, confer on Il-Prim Ministru (Prime Minister, Malta) the power to submit to the President of the Republic the appointment of a candidate to such office. The candidates must satisfy certain conditions, also laid down by the Constitution, and, since the 2016 reform, a Judicial Appointments Committee has been established, which is charged with assessing candidates and providing an opinion to the Prime Minister. However, Repubblika challenges the conformity of national constitutional provisions concerning the procedure for the appointment of members of the Maltese judiciary with, in particular, the requirements laid down by EU law for the independence of the judicial system of the Member States.

2. Decision

First, the ECJ states that the second subparagraph of Article 19(1) TEU is intended to apply in the present case, since the action seeks to challenge the conformity with EU law of national provisions governing the procedure for the appointment of members of the judiciary called upon to rule on questions relating to the application or interpretation of EU law, and which it is alleged are liable to affect their independence. In so far as Article 47 CFREU is concerned, the ECJ states that, although it is not applicable as such – for Repubblika does not rely on a subjective right that it derives from EU law –, it must nonetheless be taken into consideration for the purposes of interpreting the second subparagraph of Article 19(1) TEU.

Second, the ECJ holds that this provision of EU law does not preclude national provisions which confer on the Prime Minister of the Member State concerned a decisive power in the process for appointing members of the judiciary, while providing for the involvement, in that process, of an independent body responsible for, inter alia, assessing candidates for judicial office and giving an opinion to that Prime Minister.

In order to reach that conclusion, the ECJ first points out, generally, the fundamental importance that the independence of the judges has for the EU legal order in various respects, namely as it is essential to the proper working of the preliminary ruling procedure, laid down in Article 267 TFEU, and it forms part of the essence of the fundamental right to effective judicial protection and to a fair trial provided for in Article 47 CFREU. Also, the ECJ recalls its case-law regarding the guarantees of independence and impartiality required under EU law and emphasizes that hose guarantees presuppose the existence of rules that are such as to dispel any reasonable doubt in the minds of individuals as to the imperviousness of members of the judiciary to external factors, in particular to direct or indirect influence from the legislature or the executive, and as to their neutrality with respect to the interests before them.

The ECJ also points out that, under Article 49 TEU, the EU is composed of States which have freely and voluntarily committed themselves to the common values referred to in Article 2 TEU. A Member State cannot therefore amend its legislation, particularly in regard to the organisation of justice, in such a way as to bring about a reduction in the protection of the value of the rule of law, a value which is given concrete expression by, inter alia, Article 19 TEU. Member States are thus required to refrain from adopting rules which would undermine the independence of the judiciary.

Having clarified those points, the ECJ holds, first, that the creation, in 2016, of the Judicial Appointments Committee serves, on the contrary, to reinforce the guarantee of judicial independence in Malta in comparison with the situation arising from the constitutional provisions which were in force when Malta acceded to the EU. Indeed, in principle, the involvement of such a body may be such as to contribute to rendering more objective the process for appointing members of the judiciary, by circumscribing the leeway available to the Prime Minister in the exercise of the power conferred on him or her in that regard, provided that that body is sufficiently independent. In the present case, the ECJ finds that there is a series of rules which appear to be such as to guarantee that independence.

Second, the ECJ points out that, although the Prime Minister has a certain power in the appointment of members of the judiciary, the exercise of that power is circumscribed by the requirements of professional experience, laid down in the Constitution, which must be satisfied by candidates for judicial office. Moreover, although the Prime Minister may decide to submit to the President of the Republic the appointment of a candidate not put forward by the Judicial Appointments Committee, the Prime Minister is then required to communicate his or her reasons to the legislature. According to the ECJ, provided that the Prime Minister exercises that power only in exceptional circumstances and adheres to strict and effective compliance with the obligation to state reasons, that power is not such as to give rise to legitimate doubts concerning the independence of the candidates selected.

Judgment of the Court (Grand Chamber) of 18 May 2021, Asociaţia «Forumul Judecătorilor din România» and Others, Joined Cases C‑83/19, C‑127/19, C‑195/19, C‑291/19, C‑355/19 and C‑397/19, EU:C:2021:393

Reference for a preliminary ruling – Treaty of Accession of the Republic of Bulgaria and Romania to the European Union – Act concerning the conditions of accession to the European Union of the Republic of Bulgaria and Romania – Articles 37 and 38 – Appropriate measures – Mechanism for cooperation and verification of progress in Romania to address specific benchmarks in the areas of judicial reform and the fight against corruption – Decision 2006/928/EC – Legal nature and effects of the cooperation and verification mechanism and of the reports established by the Commission on the basis of that mechanism – Rule of law – Judicial independence – Second subparagraph of Article 19(1) TEU – Article 47 CFREU – Laws and government emergency ordinances adopted in Romania in the course of 2018 and 2019 concerning the organisation of the judicial system and the liability of judges – Interim appointment to management positions of the Judicial Inspectorate – Establishment of a section within the Public Prosecutor’s Office for the investigation of offences committed within the judicial system – Financial liability of the State and personal liability of judges in the event of judicial error

1. Facts

Six requests for a preliminary ruling were brought before the ECJ by Romanian courts in proceedings between legal or natural persons and authorities or bodies such as the Inspecia judiciară (Romanian Judicial Inspectorate), the Consiliul Superior al Magistraturii (Supreme Council of the Judiciary) and the Parchetul de pe lângă Înalta Curte de Casaţie şi Justiţie – Procurorul General al României (prosecutor’s office attached to the High Court of Cassation and Justice). The disputes in the main proceedings follow on from a wide-ranging reform in the field of justice and the fight against corruption in Romania, a reform which has been monitored at EU level since 2007 under the cooperation and verification mechanism (‘the CVM’) established by Decision 2006/928[1].

In the context of negotiations for its accession to the EU, Romania adopted, in the course of 2004, three ‘Justice Laws’ – on the rules governing judges and prosecutors, on the organisation of the judicial system and on the Supreme Council of the Judiciary – with the aim of improving the independence and effectiveness of the judicial system. Between 2017 and 2019, amendments were made to those laws by laws and government emergency ordinances adopted on the basis of the Romanian Constitution. The applicants in the main proceedings dispute whether certain of those legislative amendments are compatible with EU law. In support of their actions, they refer to several opinions and reports, such as the 2017 and 2018 reports drawn up by the Commission on progress in Romania under the CVM. In their view, these documents contain criticisms of the provisions adopted by Romania in the years 2017 to 2019 in the light of the effectiveness of the fight against corruption and the guarantee of the independence of the judiciary.

In that context, the referring courts are uncertain as to the legal nature and effects of Decision 2006/928 and the scope of the reports drawn up by the Commission under it, the conformity with Articles 2 and 19(1), second subparagraph, TEU of several amendments to the “Justice laws”, and to the principle of primacy of EU law, considering, in particular, recent case-law of the Curtea Constituțională (Constitutional Court), according to which EU law, in particular Decision 2006/928, cannot take precedence over national constitutional law.

2. Decision

In the first place, the ECJ finds that Decision 2006/928 and the reports drawn up by the Commission on the basis of that decision, constitute acts of an EU institution, which are amenable to interpretation by the ECJ under Article 267 TFEU, and that that Decision, as regards its legal nature, content and temporal effects, falls within the scope of the Treaty of Accession of the Republic of Bulgaria and Romania to the EU. Therefore, as long as it has not been repealed, that decision is binding in its entirety on Romania as from its accession to the EU and imposes on Romania the obligation to address the benchmarks set out in its Annex. These benchmarks, which were defined on the basis of the deficiencies established by the Commission before Romania’s accession to the EU in the areas of, inter alia, judicial reforms and the fight against corruption, are binding on Romania. Romania is thus required to take appropriate measures to meet them as soon as possible and to refrain from implementing any measure which could jeopardise those benchmarks being met. Furthermore, in order to comply with those benchmarks, Romania must take due account of the requirements and recommendations formulated in the reports drawn up by the Commission under Decision 2006/928.

In the second place, after finding that the legislation governing the organisation of justice in Romania falls within the scope of Decision 2006/928, with the result that it must comply with the requirements arising from EU law and, in particular, from the value of the rule of law, set out in Article 2 TEU, the ECJ analyses, first, the questions relating to the interim appointments to management positions within the Judicial Inspectorate. In that regard, the ECJ interpreted Articles 2 and 19(1), second subparagraph, TEU and Decision 2006/928 as precluding national legislation adopted by the government of a Member State, which allows that government to make interim appointments to the management positions of the judicial body responsible for conducting disciplinary investigations and bringing disciplinary proceedings against judges and prosecutors, without following the ordinary appointment procedure laid down by national law, where that legislation is such as to give rise to reasonable doubts that the powers and functions of that body may be used as an instrument to exert pressure on, or political control over, the activity of those judges and prosecutors.

The ECJ then interpreted the same provisions of primary EU law as also precluding national legislation providing for the creation of a specialised section of the Public Prosecutor’s Office with exclusive competence to conduct investigations into offences committed by judges and prosecutors, where the creation of such a section is not justified by objective and verifiable requirements relating to the sound administration of justice, and is not accompanied by specific guarantees such as, first, to prevent any risk of that section being used as an instrument of political control over the activity of those judges and prosecutors likely to undermine their independence and, second, to ensure that that exclusive competence may be exercised in respect of those judges and prosecutors in full compliance with the requirements arising from Articles 47 and 48 CFREU.

As regards the financial liability of the State and the personal liability of judges for the damage caused by a judicial error, the ECJ interpreted Articles 2 and 19(1), second subparagraph, TEU as not precluding national legislation which defines the concept of ‘judicial error’ in general and abstract terms. By contrast, those same provisions preclude such legislation where it provides that a finding of judicial error, made in proceedings to establish the State’s financial liability and without the judge concerned having been heard, is binding in the subsequent proceedings relating to an action for indemnity to establish the personal liability of that judge, and where that legislation does not, in general, provide the necessary guarantees to prevent such an action for indemnity being used as an instrument of pressure on judicial activity and to ensure that the rights of defence of the judge concerned are respected, so as to dispel any reasonable doubt, in the minds of individuals, as to the imperviousness of the judges to external factors liable to have an effect on their decisions and so as to preclude a lack of appearance of independence or impartiality on the part of those judges likely to prejudice the trust which justice in a democratic society governed by the rule of law must inspire in those individuals.

Lastly, the ECH clarified that the principle of primacy of EU precludes legislation of a Member State having constitutional status, as interpreted by the constitutional court of that Member State, according to which a lower court is not permitted to disapply of its own motion a national provision falling within the scope of Decision 2006/928, which it considers, in the light of a judgment of the ECJ, to be contrary to that decision or to the second subparagraph of Article 19(1) TEU.

---

[1] Commission Decision 2006/928/EC of 13 December 2006 establishing a mechanism for cooperation and verification of progress in Romania to address specific benchmarks in the areas of judicial reform and the fight against corruption (OJ 2006 L 354, p. 56).