Dragoș Călin (Judge at the Bucharest Court of Appeal and co-president of the Romanian Judges' Forum Association)

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1. Are ordinary judges afraid to apply CJEU judgments?

The judgment of the Grand Chamber of the Court of Justice of the European Union, delivered in the joined cases C-83/19, C-127/19, C-195/19, C-291/19, C-355/19 and C-397/19, Asociația Forumul Judecătorilor din România și alții, on 18 May 2021, has caused a real earthquake in Romania.

It was so intense that, in order to maintain the previous state of affairs, the Constitutional Court of Romania immediately intervened, by Decision no. 390/2021, contrary to the CJEU judgment, ordering that national ordinary judges may not analyse the conformity of a national provision, which has already been found to be constitutional by a decision of the Constitutional Court, in relation to the provisions of European Union law.

More specifically, invoking the disregard of the national constitutional identity, “as a guarantee of a fundamental identity nucleus of the Romanian Constitution and which should not be relativised in the process of European integration”, the Constitutional Court of Romania found that “the CJEU, declaring the binding nature of Decision 2006/928/EC [establishing the Cooperation and Verification Mechanism (CVM) for Romania], limited its effects from a double perspective: on the one hand, it established that the obligations resulting from the decision fall within the responsibility of the competent Romanian authorities that have the competence to cooperate institutionally with the European Commission (paragraph 177 of the decision), therefore within the responsibility of the political institutions, the Romanian Parliament and Government, and, on the other hand, that the obligations shall be exercised under the principle of sincere cooperation, provided by Article 4 of TEU. From both perspectives, the obligations cannot be incumbent on the courts, State bodies that are not authorized to cooperate with a political institution of the European Union.” It was therefore established that the “implementation of paragraph 7 of the operative part of the judgment, according to which a court is authorized to set aside ex officio a national provision falling within the scope of Decision 2006/928 and which it considers, in the light of a Court judgment, to be contrary to this decision or to the second subparagraph of Article 19 (1) TEU, has no basis in the Romanian Constitution”.

The interpretation of the Romanian Constitutional Court is inexplicable. Of course, there have been individual rebellions of ordinary judges in Romania before. For example, a court found, in 2013, in the matter of salary reductions, that both the European Court of Human Rights and the Court of Justice of the European Union “deviate from their own principles enshrined in several years of operation. Inconsistent practice at this level is unacceptable, especially since it appears to be the effect of large-scale acts of corruption.” But this has not happened at the level of the Constitutional Court as well, which had constantly shown a tendency towards European friendship, before following in the footsteps of its fellows in Poland or Hungary.

The decisions of the Constitutional Court of Romania are binding, under Article 147 paragraph 4 of the Romanian Constitution.Also, the provisions of Article 99, letter ș of Law no. 303/2004 on the status of judges and prosecutors allow the initiation of a disciplinary action by the Judicial Inspection and disciplinary sanctions for judges for non-compliance with a decision of the Constitutional Court.

One of the questions clarified clarified by the CJEU on 18 May 2021 precisely concerned the ad interim office of the Chief Inspector of the Judicial Inspection, temporarily appointed directly by an emergency ordinance issued by the Romanian Government in 2018. The Court of Justice holds that national legislation is likely to give rise to such doubts where, even temporarily, it has the effect of allowing the government of the Member State in question to make appointments to the management positions of the body responsible for carrying out disciplinary investigations and bringing disciplinary proceedings against judges and prosecutors, by disregarding the ordinary appointment procedure laid down by national law.

The same Chief Inspector, who was noticed after the cascade disciplinary actions brought against the former President of the High Court of Cassation and Justice, the former Chief Prosecutor of the National Anticorruption Directorate (who has meanwhile become the First Chief Prosecutor of the European Prosecutor’s Office) and the judges and prosecutors who protested publicly against the amendments contrary to the rule of law brought to the statute of judges and prosecutors in Romania, began in 2021 the disciplinary proceedings against judges who proposed and those who referred to the CJEU in the cases mentioned above, causing immediate reactions from the European academic community.

The Judicial Inspection also went against the first and the only judge who has applied so far in Romania (at the Pitești Court of Appeal) the CJEU judgment of 18 May 2021, being accused of committing the violation of Article 99 letter t of Law no. 303/2004 which refers to acting in bad faith or in serious negligence. In fact, the latter had established the priority of applying the European Union law, revoking the provisions of Law no. 304/2004 on the judicial organization of the special prosecutor’s office that exclusively investigates judges and prosecutors (hereinafter SIIJ), declaring that the SIIJ’s existence is not justified by objective and verifiable requirements relating to the sound administration of justice and that it is therefore not competent to investigate a case brought before it. In his resolution, the judicial inspector noted that ”the priority of EU law extends only to constitutionality” and that ”as regards the judge’s interpretation that the CJEU decision is final and binding, he only shares the idea supported by certain politicians”.

2. Fata Morgana: a new CJEU judgment most likely to remain on paper only?

These force actions raised concerns by the European Commission (”following the ruling of the Court of Justice of the EU of 18 May 2021 on several aspects of the justice laws, the Constitutional Court gave a judgment on 8 June 2021, which raises serious concerns, as it questions the principle of primacy of EU law”), and the initiation of an infringement for non-fulfilment of the obligations of an EU Member State by Romania (Article 258 TFEU) is imminent.

In parallel, the Craiova Court of Appeal, by a ruling of 29 June 2021, referred to the CJEU (case C-430/21, RS), asking, inter alia, whether the principle of independence of judges, enshrined in the second subparagraph of Article 19(1) TEU read in conjunction with Article 2 TEU and Article 47 of the Charter of Fundamental Rights of the European Union, opposes a national provision, such as that of Article 99 letter ș of Law no. 303/2004, which allows the initiation of disciplinary proceedings and the application of disciplinary sanctions in respect of a judge for failure to comply with a decision of the Constitutional Court, where that judge is called upon to acknowledge the primacy of European Union law over the grounds of a decision of the Constitutional Court prohibiting national ordinary judges to examine the conformity with the provisions of European Union law of a national provision, found to be constitutional by the constitutional body.

The President of the Court of Justice of the European Union ordered the settlement of the request for a preliminary ruling in an accelerated procedure and the disciplinary investigations carried out as a result of the implementation of European Union law were assessed as likely to seriously affect the independence of courts and the stability of the Romanian judicial system.

Invocation by any Member State of the provisions of national law, even of a constitutional nature, may not affect the unity and effectiveness of European Union law, and any national court referred to within its jurisdiction shall, as a body of a Member State, set aside any national provision contrary to a provision of European Union law which has direct effect in the dispute before it.

And yet, it is possible that the new judgment of the Court of Justice be countered in the same way by a decision of the Constitutional Court of Romania similar to Decision no. 390/2021. What will be the effective way of implementing the European Union law, in particular, the CJEU judgments, in such a situation? Is it exclusively the infringement procedure? In the case of Poland, the spectre of huge financial sanctions seems to be producing results, but only after several years wasted in legal battles, with a magistracy constantly harassed and drained of energy.

It is certain that a “cat-and-mouse” game will never be able to produce predictability and consistency in implementing the EU law in the Member States. On the contrary, it will generate exactly the opposite, affecting the independence of judges (of those who will still act independently, probably very few). It is necessary to find new solutions, to supplement treaties, to avoid such practical situations in order not to negotiate fundamental principles, especially the rule of law, in relation to various trends and temporary political manifestations of any Member State. Without a solid and respected Court of Justice, the European Union will become a Fata Morgana itself.

Picture credits: AJEL.