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 21 December 2021, Joined cases C‑357/19, C‑379/19, C‑547/19, C‑811/19 and C‑840/19, Euro Box Promotion e.a., EU:C:2021:1034
Reference for a preliminary ruling – Decision 2006/928/EC – Mechanism for cooperation and verification of progress in Romania to address specific benchmarks in the areas of judicial reform and the fight against corruption – Legal nature and effects – Binding on Romania – Rule of law – Judicial independence – Second subparagraph of Article 19(1) TEU – Article 47 of the Charter of Fundamental Rights of the European Union – Fight against corruption – Protection of the European Union’s financial interests – Article 325(1) TFEU – ‘PFI’ Convention – Criminal proceedings – Decisions of the Curtea Constituțională (Constitutional Court, Romania) concerning the legality of the taking of certain evidence and the composition of judicial panels in cases of serious corruption – Duty on national courts to give full effect to the decisions of the Curtea Constituțională (Constitutional Court) – Disciplinary liability of judges in case of non-compliance with such decisions – Power to disapply decisions of the Curtea Constituțională (Constitutional Court) that conflict with EU law – Principle of primacy of EU law
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 is at the origin of the judgment of 18 May 2021, Asociaţia ‘Forumul Judecătorilor din România’ 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) and has been monitored at EU level since 2007 under the cooperation and verification mechanism (‘the CVM’) established by Decision 2006/928.
These joined cases focus on the effects of certain decisions delivered by the Curtea Constituțională (Constitutional Court, Romania) according to which, in essence, some judicial panels of the Înalta Curte de Casaţie şi Justiţie (High Court of Cassation and Justice, Romania) had not been composed in accordance with the law. Those decisions allowed some parties to file extraordinary appeals, which in turn raised certain doubts not only as to the protection of EU’s financial interests, with regard to the obligations under Article 325(1) TFEU, but also as to the interpretation of the principal of judicial independence and the value of the rule of law on which the EU is founded. In this context, the Înalta Curte de Casaţie şi Justiţie and the Tribunalul Bihor (Regional Court, Bihor, Romania) referred questions for a preliminary ruling to the ECJ in order to assess whether the decisions delivered by the Curtea Constituțională are in conformity with EU law, in particular the question whether the principles of primacy of EU law and judicial independence allow them to disapply the case-law established in those decisions, when a failure to comply with the decisions of the Curtea Constituțională constitutes, in Romanian law, a disciplinary offence.
The ECJ first recalled that Decision 2006/928 is, as long as it has not been repealed, binding in its entirety on Romania. The benchmarks in the annex to that decision are intended to ensure that Romania complies with the value of the rule of law, set out in Article 2 TEU, and are binding on it, to the effect that Romania is required to take the appropriate measures to meet those benchmarks, taking due account, under the principle of sincere cooperation laid down in Article 4(3) TEU, of the reports drawn up by the Commission on the basis of that decision, and in particular the recommendations made in those reports
Secondly, the ECJ recalled that, if the organisation of justice in the Member States, including the composition of judicial panels in cases of fraud and serious corruption, falls within the competence of those Member States, they are nonetheless required, when exercising that competence, to comply with their obligations deriving from EU law. In that context, Article 325(1) TFEU requires Member States to counter fraud and any other illegal activity affecting EU’s financial interests through effective deterrent measures. As far as concerns Romania, this obligation is supplemented by the specific commitments accepted by Romania, under Decision 2006/298, to step up the fight against corruption and in particular against high-level corruption by ensuring a rigorous enforcement of the anti-corruption legislation. It follows that Romania must provide for the application of penalties that are effective and that act as a deterrent in cases of fraud affecting EU’s financial interests and of corruption in general.
However, according to the information provided by the referring courts, the case-law established in the decisions delivered by the Curtea Constituțională require that all cases of fraud and corruption pending before the Înalta Curte de Casaţie şi Justiţie, as well as cases in which a ruling had been given, in so far as the individuals concerned were still within the period for the exercise of the appropriate extraordinary appeals, be subject to re-examination on appeal by a panel all the members of which were to be selected by the drawing of lots. In light of the complexity and duration of such a re-examination before the Înalta Curte de Casaţie şi Justiţie, such re-examination has the effect of prolonging the duration of the corresponding criminal proceedings. In addition, in light of the national rules on limitation, the application of the case-law of the Curtea Constituțională could, in a significant number of cases, result in offences becoming time-barred.
The ECJ therefore considered that, if the referring courts were to conclude that the application of case-law of the Curtea Constituțională, in conjunction with the implementation of the national rules on limitation, entails a systemic risk of acts constituting serious fraud affecting EU’s financial interests or corruption in general going unpunished, the penalties provided for in national law to counter such offences could not be regarded as effective and acting as a deterrent, which would be incompatible with Article 325(1) TFEU, read in conjunction with Article 2 of the PFI Convention and with Decision 2006/928. Those referring courts must also ensure that the fundamental rights guaranteed by the Charter to the persons concerned in the main proceedings, in particular those guaranteed in Article 47 of the Charter, are respected. The application of national standards of protection of fundamental rights, as relied on in the main proceedings, is however precluded as they would entail such a systemic risk.
Thirdly, the ECJ interpreted Article 2 TEU, the second subparagraph of Article 19(1) TEU and Decision 2006/928 as not precluding national rules or a national practice under which the decisions of the national constitutional court are binding on the ordinary courts, provided that the national law guarantees the independence of that constitutional court in relation, in particular, to the legislature and the executive, as required by those provisions. The ECJ recalled, however, that those same provisions preclude national rules under which any failure to comply with the decisions of the national constitutional court by national judges of the ordinary courts can trigger their disciplinary liability
Finally, the ECJ emphasized that the principle of primacy of EU law precludes national rules or a national practice under which national ordinary courts are bound by decisions of the national constitutional court and cannot, by virtue of that fact and without committing a disciplinary offence, disapply, on their own authority, the case-law established in those decisions, even though they are of the view, in the light of a judgment of the ECJ, that that case-law is contrary to the second subparagraph of Article 19(1) TEU, Article 325(1) TFEU or Decision 2006/928.
Judgment of the Court (Grand Chamber) of 18 January 2022, Case C-118/20, Wiener Landesregierung and Others (Revocation of an assurance of naturalisation), EU:C:2022:34
Reference for a preliminary ruling – Citizenship of the Union – Articles 20 and 21 TFEU – Scope – Renunciation of the nationality of one Member State in order to obtain the nationality of another Member State in accordance with the assurance given by the latter to naturalise the person concerned – Revocation of that assurance on grounds of public policy or public security – Principle of proportionality – Statelessness
In 2008, JY, who was then an Estonian national residing in Austria, applied for Austrian nationality. By decision of 11 March 2014, the competent administrative authority assured her, in accordance with national law, that she would be granted that nationality if she could prove, within two years, that she had relinquished her Estonian nationality. JY provided confirmation within the prescribed period that she had relinquished her Estonian nationality on 27 August 2015. However, by decision of 6 July 2017, the Wiener Landesregierung (Government of the Province of Vienna, Austria), which had become competent, revoked the decision of 11 March 2014, in accordance with national law, and rejected JY’s application for Austrian nationality. In order to justify its decision, that authority stated that JY no longer satisfied the conditions for grant of nationality laid down by national law, as she had committed, since receiving the assurance that she would be granted Austrian nationality, two serious administrative offences, namely failing to display a vehicle inspection disc and driving while under the influence of alcohol, and she had also committed eight administrative offences before that assurance was given to her.
Following the dismissal of her action against that decision, JY lodged an appeal before the Verwaltungsgerichtshof (Supreme Administrative Court, Austria). As JY has been stateless since 2015, that court referred two questions to the ECJ for a preliminary ruling in order to ascertain whether JY’s situation falls within the scope of EU law and whether, in order to adopt its decision to revoke the assurance as to the grant of nationality, which prevents JY from recovering her citizenship of the Union, the competent administrative authority was required to have due regard to EU law, in particular the principle of proportionality.
First, in light of its case-law concerning the obligations of Member States with regard to the acquisition and loss of nationality under EU law, the ECJ clarifies that “the situation of a person who, having the nationality of one Member State only, renounces that nationality and loses, as a result, his or her status of citizen of the Union, with a view to obtaining the nationality of another Member State, following the assurance given by the authorities of the latter Member State that he or she will be granted that nationality, falls, by reason of its nature and its consequences, within the scope of EU law where that assurance is revoked with the effect of preventing that person from recovering the status of citizen of the Union”.
In that regard, the ECJ finds that a person such as JY cannot be considered to have renounced voluntarily the status of citizen of the Union, since the application for dissolution of the bond of nationality with her Member State of origin was made in the context of a naturalisation procedure seeking to obtain Austrian nationality and was a consequence of the fact that JY, taking into account the assurance given to her, complied with the requirements of that procedure. Such a procedure, taken as a whole, even if it involves an administrative decision of a Member State other than that of which nationality is sought, affects the status conferred by Article 20 TFEU on nationals of the Member States, since it may result in a person being deprived of all the rights attaching to that status. Furthermore, noting that JY, as an Estonian national, has exercised her freedom of movement and residence by settling in Austria, the ECJ points out that the underlying logic of gradual integration in the society of the host Member State that informs Article 21(1) TFEU requires that the situation of citizens of the Union, who acquired rights under that provision and are liable to lose not only entitlement to those rights but also the very status of citizen of the Union, even though they have sought, by becoming naturalised in the host Member State, to become more deeply integrated in the society of that Member State, falls within the scope of the Treaty provisions relating to citizenship of the Union.
In the second place, the ECJ states that where a Member State, by virtue of the powers it has to lay down the conditions for acquisition and loss of nationality, requires, in the context of a naturalisation procedure, a citizen of the Union to renounce the nationality of his or her Member State of origin, “the exercise and effectiveness of the rights which that citizen of the Union derives from Article 20 TFEU require that that person should not at any time be liable to lose the fundamental status of citizen of the Union by the mere fact of the implementation of that procedure”, since “any loss, even temporary, of that status means that the person concerned is deprived, for an indefinite period, of the opportunity to enjoy all the rights conferred by that status.”
Therefore, where a national of a Member State applies to relinquish his or her nationality in order to be able to obtain the nationality of another Member State, the Member State of origin should not adopt, on the basis of an assurance given by that other Member State that the person concerned will be granted the nationality of that State, a final decision concerning the deprivation of nationality without ensuring that that decision enters into force only once the new nationality has actually been acquired
However, the obligation to ensure the effectiveness of Article 20 TFEU falls primarily on the host Member State, in particular, where that Member State decides to revoke the assurance previously given to that person as to the grant of nationality, since that decision may have the effect of making the loss of the status of citizen of the Union permanent. Such a decision can be made only on legitimate grounds and subject to the principle of proportionality, in the light of the consequences it entails for the situation of the person concerned and, if relevant, for the members of his or her family. If the decision to revoke the assurance as to the grant of nationality on the ground that the person concerned does not have a positive attitude towards the Member State of which he or she wishes to acquire the nationality and that his or her conduct is liable to represent a danger to public order and security of that Member State is based on a reason relating to the public interest, the ECJ considers, however, that the decision to revoke at issue in the main proceedings does not appear proportionate to the gravity of the offences committed by JY. Indeed, the two offences committed after receiving that assurance, in view of their nature and gravity as well as the requirement that the concepts of “public policy” and “public security” be interpreted strictly, do not show that JY represents a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society or a threat to public security in Austria. As for the other eight offences, since those offences did not preclude that assurance being given, they can no longer be taken into account as a basis for the decision to revoke that assurance.
 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).