Dragoș Călin [Judge at the Bucharest Court of Appeal, Co-President of the Romanian Judges' Forum Association, Director of the Judges' Forum Review (Revista Forumul Judecătorilor)]. 
 

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1. Introduction

In “Amédée, or How to Get Rid of It (Amédée ou comment s’en débarrasser)”, written by Eugène Ionesco (“Théâtre, Volume I”, Paris, Gallimard, 1954), Amédée and his wife Madeleine discuss how to deal with a continually growing corpse in the other room. That corpse is causing mushrooms to sprout all over the apartment and is apparently arousing suspicion among the neighbours. The audience is given no clear reason why the corpse is there.

Like Amédée and Madeleine, in the “priority of the EU law in Romania” saga, we are simply in a play in which nothing changes, but everything transforms.

Under pressure from the Constitutional Court’s decisions, ordinary judges refuse to apply CJEU judgments, and the example is provided by the High Court of Cassation and Justice and Craiova Court of Appeal.

The Constitutional Court of Romania, by Decision no. 390/08.06.2021, that article 148 of the Constitution does not give EU law priority over the Romanian Constitution, so that a national court does not have the power to examine the conformity of a provision of national law, found to be constitutional in the light of Article 148 of the Constitution, with the provisions of EU law. The Court finds that the CJEU, in declaring Decision 2006/928 to be binding, 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, has limited its effects from a twofold perspective: “on the one hand, it has established that the obligations resulting from the Decision are a matter for the Romanian authorities competent to cooperate institutionally with the European Commission (paragraph 177 of the judgment), and thus for the political institutions, the Romanian Parliament and the Government of Romania, and, secondly, that the obligations are to be exercised in accordance with the principle of sincere cooperation laid down in Article 4 TEU. From both perspectives, the obligations cannot be binding on the courts, i.e. State bodies which are not empowered to collaborate with a political institution of the European Union”. (para.77)

By Press Release of 23 December 2021, the Constitutional Court of Romania refused to accept the judgment of the Court of Justice of the European Union delivered on 21 of December 2021, in joined cases C-357/19, Euro Box Promotion and Others, C-379/19, DNA – Serviciul Teritorial Oradea, C-547/19, Asociația Forumul Judecătorilor din România, C-811/19, FQ and Others, and C-840/19, NC.

The Constitutional Court of Romaniahas held that ”the conclusions of the CJEU ruling that the effects of the principle of the primacy of EU law apply to all organs of a Member State, without national provisions, including those of a constitutional nature, being capable of hindering this, and according to which national courts are obliged to disapply, of their own motion, any national legislation or practice contrary to a provision of EU law, requires revision of the Constitution in force. From a practical point of view, this judgment can only produce effects after the revision of the Constitution in force, which, however, cannot be done by operation of law, but only on the initiative of certain subjects of law, in compliance with the procedure and under the conditions laid down in the Romanian Constitution itself”.

These conclusions of the Constitutional Court of Romania have the effect of a warning for ordinary judges that in case they will apply EU law (includingCJEU judgments), they will risk colliding with the Constitutional Court and be potential subject to disciplinary actions.

2. Cases of disregard of the CJEU judgment of 18 May 2021 by Romanian courts

By Judgment No 532 of 14^th July 2021, delivered by the Mehedinți County Court (Tribunal), in case No 2122/104/2018, which was final by Decision No 3014 of 7^th December 2021 pronounced by Craiova Court of Appeal – Administrative and Fiscal Section, the two Romanian courts refused to apply the CJUE judgment delivered in the joined cases C-83/19, C-127/19, C-195/19, C-291/19, C-355/19 and C-397/19, ignoring essential aspects, precisely in order to give a different meaning to the judgment of the CJEU.

These courts used the Constitutional Court Decision No 390/2021, stating that the reports drawn up by the European Commission which highlighted the deficiency of the Romanian judicial system on the Government’s action to make appointments to the governing positions of the body entrusted with the task of conducting disciplinary investigations and disciplinary action against judges and prosecutors in breach of the ordinary appointment procedure provided for by national law “are not such as to demonstrate the existence of legitimate doubts as to the use of the prerogatives and functions of the Judicial Inspection as an instrument of pressure on the work of judges and prosecutors or of political control of this activity, provided that, as the CJEU has noted, they are acts of the European Commission addressed to the European Parliament and to the European Council, and the conclusions contained in the principle of sincere cooperation shall be addressed to the European Parliament and the European Council.”

The Court of Justice of the European Union – Grand Chamber held by judgment in Joined Cases C-83/19, C-127/19, C-195/19, C-291/19, C-355/19 and C-397/19 that “Article 2 and the second subparagraph of Article 19(1) TEU and Decision 2006/928 must be interpreted 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 Recitals of the judgment also include other aspects, which had to be interpreted systematically:

“200. Consequently, since those occupying management positions within such a body are likely to exert a decisive influence on its activity, the rules governing the procedure for appointment to those positions must be designed – as the Advocate General noted, in essence, in point 269 of his Opinion in Cases C‑83/19, C‑127/19, C‑195/19, C‑291/19 and C‑355/19 – in such a way that there can be no reasonable doubt that the powers and functions of that body will not be used as an instrument to exert pressure on, or political control over, judicial activity. (…)

205. In particular, national legislation is likely to give rise to doubts such as those referred to in paragraph 200 above where, even temporarily, it has the effect of allowing the government of the Member State concerned to make appointments to the management positions of the body responsible for conducting disciplinary investigations and bringing disciplinary proceedings against judges and prosecutors, by disregarding the ordinary appointment procedure laid down by national law.”

They are supplemented by the Court’s interpretation of Decision 2006/928 and the benchmarks set out in the Annex thereto, which must take due account, in accordance with the principle of sincere cooperation laid down in Article 4(3) TEU, of the reports drawn up by the Commission on the basis of Decision 2006/928, in particular of the recommendations made in those reports. The CVM Report of June 2021 reiterates the CVM recommendation from 2018: “The immediate appointment, by the Superior Council of Magistracy, of the interim management team of the Judicial Inspection and the appointment, within three months by competition, of a new leadership of the Judicial Inspection”. Furthermore, the latter report specifies the following: “In recent years, judicial institutions, including the SCM, have highlighted concerns about the lack of accountability of the Judicial Inspection, mentioning the high proportion of files submitted to the inspection court, ultimately rejected in court, the concentration of all decision-making processes within the powers of the Chief Inspector and the limits of the supervisory powers of the SCM. More generally, these developments raised questions as to the extent to which the new provisions of the justice laws on the appointment and accountability of the management of the Judicial Inspection provide sufficient guarantees and ensure the right balance between judges, prosecutors and the SCM. (…) These concerns included the recurrence of disciplinary proceedings against judges and prosecutors publicly opposed to the directorate followed by judicial reform and press releases – which were then used by politicians to attack judicial institutions – and the extension of the government’s mandate. These structural concerns have not yet been remedied, including in the light of the recent CJEU ruling (pp. 18-19 of the report).”

In the same register, the High Court of Cassation and Justice – Criminal Section, by Judgment No 359 of 15 June 2021, held the following: “The CVM reports, drawn up on the basis of Decision 2006/928, by virtue of their content and effects, as established by the judgment of the Court of Justice of 18 May 2021, do not constitute rules of EU law which a court should apply as a matter of priority by disregarding the national rule. Thus, the national judge cannot be placed in a position to decide on the priority application of recommendations to the detriment of the national legislation, declared in accordance with the national Constitution by the Constitutional Court of Romania, since the CVM reports do not regulate, so they are not likely to enter into a conflict with the national legislation”.

The High Court of Cassation and Justice – Criminal Section, by its Judgment of 8 September 2021, stated that the Decision No 390/2021 of Constitutional Court of Romania has priority and “the issues identified and analysed by the Judgment of the Court of Justice of 18 May 2021 are not binding on the ordinary courts, since other State bodies are empowered to cooperate with a political institution of the European Union in order to achieve the benchmarks set out in the Annex to Decision 2006/928, and the lack of substantive jurisdiction of the prosecuting body cannot be established by reference to the existence, in the active substance of the legislation, of rules which precisely lay down the jurisdiction of the prosecuting body”.

In addition, the High Court of Cassation and Justice – Criminal Section, by Judgment No 450 of 14 September 2021, found the following: “(…) the present criminal case has an essentially different object from those in which it was made the referral to the Court of Justice for a preliminary ruling of 18 May 2021, cases which were mostly civil, as it is apparent from the grounds of the judgment of the ECJ. The two main criminal disputes in which the courts referred the same preliminary ruling to the Court of Justice (Cases C-195/19 and C-291/19) had a different subject-matter, both of which are based on Article 340 et seq. Code of criminal procedure and thus entailing an unavoidable review of the legality and merits of the prosecution acts carried out by the public prosecutor.”

As regards thecreation of a special prosecution section (SIOJ) with exclusive competence for crimes committed by judges and prosecutors, the CJEU clarifies (Judgment of 18 May 2021) that, in order to be compatible with EU law, such legislation must, first, be justified by objective and verifiable requirements related to the sound administration of justice and, secondly, ensure that that section cannot be used as an instrument of political control over the activity of those judges and prosecutors and that the section exercises its competence in compliance with the requirements of the EU Charter of Fundamental Rights. If it fails to fulfil those requirements, that legislation could be perceived as seeking to establish an instrument of pressure and intimidation with respect to judges, which would prejudice the trust of individuals in justice.

Besides, the CJEU clearly notes that:

”216. (…) an autonomous structure within the Public Prosecutor’s Office, such as the SIOJ, which is responsible for investigating offences committed by judges and prosecutors, is capable of prejudicing the trust which justice in a democratic society governed by the rule of law must inspire individuals, in so far as that structure could, depending on the rules governing the powers, composition and operation of such a structure, and the relevant national context, be perceived as seeking to establish an instrument of pressure and intimidation with regard to those judges, and thus lead to an appearance of a lack of independence or impartiality on their part. (…)

219. It is apparent from the evidence submitted to the Court and from the Report from the Commission to the European Parliament and the Council of 22 October 2019 on Progress in Romania under the Cooperation and Verification Mechanism (COM(2019) 499 final, p. 5) that practical examples taken from the activities of the SIOJ confirm that the risk referred to in paragraph 216 above– namely, that that section is akin to an instrument of political pressure and exercises its powers to alter the course of certain criminal investigations or judicial proceedings concerning, inter alia, acts of high-level corruption in a manner which raises doubts as to its objectivity– has materialised, which it is for the referring courts to assess, in accordance with the case-law referred to in paragraph 201 above.”

The High Court of Cassation and Justice – Administrative and Fiscal Section, by Decision No 3864 of 24 November 2021, has determined that: “an infringement of European Union law may not be found, provided that, under Article 288 of the TFUE, only the regulation has the legal nature of an act of the European Union, which is general, binding and directly applicable in the national law of the Member States, whereas the directive is binding on each Member State to which it is addressed as to the result to be achieved, leaving the national authorities the choice of form and means, and the decision is binding in its entirety with the indication that, where the addressees are indicated, the decision is binding only on them. Indeed, Decision 2006/928 is an act of the European Union addressed to Romania and Bulgaria as future Member States, which, after accession to the European Union, must take certain measures to ensure compliance with the principles on which the Union is founded, but that decision entails the creation of compliance relationships between the European Union and the Romanian State which can be relied on only in the relationship between the two entities regarded as such, but not the possibility of relying directly under national law in relations between individuals or between the State and its authorities and individuals. Consequently, the reports issued by the Commission in the context of the missions to monitor the achievement of the benchmarks as listed in the Annex to the Decision, although they may contain recommendations for the purpose of fulfilling Romania’s obligations, do not constitute acts of the European Union directly applicable in national law to legal relations between individuals or between them and central or local public authorities, and failure to comply with the recommendations proposed by the Commission by the Romanian State cannot have any effect other than the possibility of initiating sanctions such as those described in the decision itself”.

It can be concluded that the High Court of Cassation and Justice refused to give priority to the Judgment of the CJEU rendered on 18 of May 2021, especially due to the reasonings/arguments offered by Romanian Constitutional Court in its Decision nr 390/2021, ignoring that the second subparagraph of Article 19(1) TEU and the benchmarks set out in Decision 2006/928 have direct effect. 

3. The play also includes the Superior Council of Magistracy

During 2017 and 2018, the Romanian Parliament adopted three new laws affecting the judiciary. These amendments eliminated merit-based judicial qualification standards for appointments to the higher courts; under the new laws, decisions regarding such promotions are to be based on subjective criteria, i.e. “assessment of activity and conduct within the last three years”, at the High Court of Cassation and Justice. Under the new protocol, formal interviews conducted by the Section for judges of the Superior Council of Magistracy replace the merit-based qualifying examinations and enforce a visible promotion control system.

The last contest, with interviews conducted in January 2022, seems to be in line with the view of the Constitutional Court of Romania, trying to select candidates which accepts the interpretation of the internal body.

Here are some examples of questions from the President of the Superior Council of Magistracy to some of the candidates:

“Now, as we speak, you know that the last judgment of the Court of Justice was in another field. One of us, law specialists, they are thinking of an apparent or actual conflict, as I know, we can talk. What I mean is that jurisprudence says something, the Constitutional Court says otherwise, in matters of professional specialists, even in the field of insolvency, I don’t think it is. You must be aware of the conflict, don’t you? But how do you see this situation, national sovereignty versus obligations, as a member of the European Union? Do you think there’s even a real conflict? What has Romania given away once it joined EU, in which area would the Court’s judgments be undeniably binding? In what areas would it be questionable? Part of Romania’s sovereignty was ceded. What’s that part? In all fields? If the Commission issues a directive for Romania, which dismantle the Romanian Courts of Appeals, could it be mandatory? But regardless of the criminal matter, there are some statements leading to the idea that the judge has the possibility to remove the internal decision or the decision of the Constitutional Court. Is the Court of Justice trying to assume some competences that could not be given away, which have never been surrendered by the Constitutional Court, not by Romania as a sovereign state? (…) Is it needed a intervention of the Court of Justice for removing an internal rule or could you, as a the national judge, to remove the internal rule? This means that we have to ask the Court whether that provision is contrary to the Treaty, is opposed to a national exclusion, or how do we do it better? There is a formal mechanism by which we could unite in this regard the case-law? Starting from the admissibility condition, the appeal in the interests of law or the preliminary question? I am talking about what could the judge do. Is it possible to have a legal vacuum and, in any case, a misinterpretation of some of the judgments given by the ECJ. Is it inconceivable that a judge should be held responsible for the implementation with bad faith or with serious negligence of a judgment of the Court of Justice? Is it not prior to the last ruling? It’s not? (about Euro Box Promotion and Others judgement) Therefore, in your opinion the practical outcome is the ignorance of the „de jure” decision, because we have the decision of the Constitutional Court. (…) And you will not apply the judgment of the Court of Justice?”.

… and, for example, the answers of one of the candidates: “No, I made it clear that no. From my point of view, the effects of the Constitutional Court’s decision cannot be overridden, giving priority to EU law or other decisions. In fact, the Constitutional Court, as I recall, ruled in a decision of 8 June 2021 and, in the recitals, expressed its views on the judgment of the Court of Justice of the European Union from 18 May 2021, pointing out that EU law takes precedence only over the law which is inferior to the Constitution. But I believe otherwise; we are talking about a primacy of European law over a provision of constitutional rank. Can we talk about? I don’t think so. We cannot put a court of common law above the Constitutional Court, and I believe that this is the reason for supporting the claim that I have made, namely we cannot override the effects of this decision, in favour of the decision of the Court of Justice”.

4. Conclusions

Even if the Decision no. 390/2021 and the statement of 23 December 2021 of the Constitutional Court of Romania create a serious precedent for other constitutional courts and ordinary courts all over the European Union, Mr. Valer Dorneanu, President of the Constitutional Court of Romania, explained in a recent speech that it would not be so: ”It was very clear what national law means: treaties, regulations, decisions. No CVM reports, not opinions, not recommendations. Two of the rulings of the CJEU made it clear that they are indicative, and they provide lines of action. Without falling into the trap that my person as a Romanian citizen could stretch and judge the quality of those who carried out the control missions, if they had a political approach or not, this is not the problem. The problem is that those expert committees did not have the role of a European authority. How to make such reports legally binding? Without taking a political approach, we said that we could not recognise a binding legal value for these recommendations. (…) I would like to refer to the meaning of the question: is there a conflict between the CCR and the CJEU? We do not believe that we have a conflict with the CJEU.”

In order to comply with the benchmarks, set out in the Annex to Decision 2006/928, Romania must take due account of the requirements and recommendations in the reports drawn up by the Commission under that decision. In particular, Romania cannot adopt or maintain measures in the areas covered by the benchmarks which could jeopardise the result prescribed by the requirements and recommendations. Where the Commission expresses doubts, in such a report, as to whether a national measure is compatible with one of the benchmarks, it is for Romania to cooperate in good faith with the Commission with a view to overcoming the difficulties encountered with respect to meeting the benchmarks, while at the same time fully complying with those benchmarks and the provisions of the Treaties.(CJEU, judgment of 18 May 2021, Asociația Forumul Judecătorilor and Others, C-83/19, C-127/19, C-195/19, C-291/19, C-355/19 and C-397/19, EU:C:2021:393, paragraph 177).

The duty of sincere cooperation “may impose positive obligations on Member States not only in the sense of preventing themselves from infringing EU law, but also in preventing other persons from foiling the provisions of the Treaty by their action”. Furthermore, the duty of sincere cooperation will also be breached if a Member State does not sanction those who infringe EU law in the same way as it penalises those who infringe national law, namely in an effective, proportionate and dissuasive manner.

In its judgment of 4 October 2018, Commission v France (Advance payment) (C‑416/17), the Court recalled that a Member State’s failure to fulfil obligations may, in principle, be established under Article 258 TFEU whatever State agency whose action or inaction gives rise to the failure to fulfil its obligations. 

But who should react? In Eugène Ionesco’s play, ushed by Madeleine, Amédée makes the decision to get rid of it. Amédée, carrying a deflated corpse, meets an American soldier, then the police appear. Amédée escapes by rising in the air with the magic corpse.

In our tangible reality, the guardian of the treaties seems to be just a spectator of the play. And flying all around is not the right answer.

Picture credits: dimitrisvetsikas1969.