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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Very recently, on March 10, 2022, the Alba Iulia Court of Appeal – Administrative and Fiscal Litigation Section ordered the referral to the Court of Justice of the European Union, based on art. 267 of the Treaty on the Functioning of the European Union, with a new preliminary ruling in close connection with the Rule of law (Case C-205/22, C.D.A.).

In fact, the Romanian court’s request tends to ascertain mainly whether, in the interpretation of the CJEU, the principle of judicial independence enshrined in the second subparagraph of Article 19(1) TEU with reference to Article 2 TEU and Article 47 of the Charter of Fundamental Rights of the European Union and the principle of sincere cooperation, laid down in Article 4 TEU, preclude a national provision, such as that of Article 148(2) of the Romanian Constitution, as interpreted by the Romanian Constitutional Court, by Decision No 390/2021, according to which national courts cannot take account of the provisions of European Commission Decision 2006/928 and the recommendations made in the CVM Reports for the implementation of the benchmarks, on the ground that “national courts are not empowered to cooperate with a political institution of the European Union.”

By the judgment of the Grand Chamber of the Court of Justice of the European Union in 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, found that EU law precludes legislation such as Government Emergency Order No 77/2018, whereby the Government made interim appointments to the management of the Judicial Inspection without the legal appointment procedure provided for in Article 67(7) of Law No 317/2004, where that legislation gives rise to legitimate doubts as to the use of the powers of that body as an instrument of pressure on the work of judges and prosecutors or for the political control of that activity. (“177 In those circumstances, 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 formulated 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 those 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 regard to meeting the benchmarks, while at the same time fully complying with those benchmarks and the provisions of the Treaties. (…) 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.”)

However, in 2018 and 2019, the reports drawn up by the European Commission consistently highlighted this weakness in the Romanian judicial system concerning the government’s action to make appointments to the management positions of the body entrusted with the task of conducting disciplinary investigations and bringing disciplinary action against judges and prosecutors in breach of the ordinary appointment procedure laid down by national law.

One of the requirements of the report drawn up in 2018 by the Commission under Decision 2006/928 was precisely “the immediate appointment by the Superior Council of Magistracy, the interim management team of the Judicial Inspection and the appointment, within three months by competition, of a new management of the Judicial Inspection”. However, the Superior Council of Magistracy did not appoint any intermediate management team for the Judicial Inspection.

Criticisms of the Judicial Inspection were reiterated in the 2021 CVM Report under Benchmark 1: independence of the judiciary and reform of the judiciary — Judicial Inspection, clearly stating the following: “2018 and 2019 were marked by controversy about the approach of the SCM towards the position of the Chief Inspector, as the SCM effectively extended the term of the incumbent, despite the controversy relating to a temporary interim prolongation on the basis of a Government Emergency Ordinance. The CJEU judgment revives the purpose of the 2018 recommendation. The authorities with oversight on the Judicial Inspection, in particular the SCM, will have to take the judgment into due consideration, also in light of the repeated concerns raised with the activity of the Judicial Inspection.”

In the present case, an action was brought before the Court of Appeal for annulment of the Order of the Chief Inspector of the Judicial Inspection approving Regulation No 136/2018 on the rules for carrying out inspection work. As the provisions of European Union law depart from the contrary provisions of national law, the question is whether or not the national legislative provisions (in this case Government Emergency Order No 77/2018) on the interim appointment of the Chief Inspector of the Judicial Inspection will apply, because of the contrary to EU law, so that all acts issued during the interim period by that chief inspector (including the Rules governing the organisation and functioning of the Judicial Inspection or the acts of appointment of inspectors selected on that basis, including the chief inspector), could, if so, be considered void (principle of domino).

With regard to the reports drawn up by the Commission under Decision 2006/928, by Decision No 390/2021, the Constitutional Court of Romania referred to the judgment of the CJEU and stated that, as long as the European Court had found that these are acts of the European Commission are not addressed to Romania but to the Parliament and the Council, and formulate requirements with regard to Romania, the nature of these reports was not held to be binding. It is further established that, by declaring Decision 2006/928 binding, the judgment of 18 May 2021 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”.

The Constitutional Court of Romania concluded that the application of point 7 of the operative part of the judgment of the CJEU, according to which a court “is authorised to disapply of its own motion a national provision falling within the scope of Decision 2006/928 and which it considers, in the light of a judgment of the Court, to be contrary to that decision or to the second subparagraph of Article 19 (1) TEU”, has no basis in the Romanian Constitution, since Article 148 of the Constitution prioritises the application of European law over the contrary provisions of national laws. However, the Constitutional Court points out that the CVM reports, drawn up on the basis of Decision 2006/928, by their content and effects, do not constitute rules of European law, which the court should apply as a matter of priority, disregarding the national rule, and therefore the national judge cannot be placed in a position to decide that recommendations should be applied as a matter of priority over national law, since the CVM reports do not establish legal rules and are therefore not likely to conflict with national law.

However, even Article 148 of the Romanian Constitution requires respect for the priority of EU law over the contrary provisions of national law and obliges all public authorities in Romania, listing the “Parliament, President of Romania, Government and judicial authority” to ensure that the obligations resulting from the Act of Accession and the priority of EU law over national law are fulfilled.

In his Opinion delivered on 20 January 2022 in Case C-430/21, RS, the Advocate General of the CJEU, Anthony Collins, noted that the findings of the Constitutional Court in Decision No 390/2021 are “such as to raise serious doubts about that court’s adherence to the essential principles of EU law as interpreted by the Court in the judgment in Asociaţia Forumul Judecătorilor din România. Moreover, the Constitutional Court did not request a preliminary ruling from the Court of Justice under the third paragraph of Article 267 TFEU in order to avert the risk of an incorrect interpretation of EU law” (par. 65). At the same time, the second subparagraph of Article 19(1) TEU and the benchmarks set out in Decision 2006/928 have direct effect, the CJEU ruling that a national court is required to guarantee, within its jurisdiction, their full effect by disapplying, if necessary, provisions of national law to the contrary (judgment Asociaţia Forumul Judecătorilor din România, paragraphs 242 to 252).

However, by Decision No 15/14 March 2022, the High Court of Cassation and Justice established that: “the provisions of Article II of Government Emergency Order No 77/2018 supplementing Article 67 of Law No 317/2004 on the Superior Council of Magistracy are not such as to confer on the Government a direct power to appoint to those positions and to give rise to 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 for political control of that activity.”

The decision is binding on all courts in Romania, in accordance with the provisions of Article 521(3) of the Code of Civil Procedure. The High Court of Cassation and Justice, as the Constitutional Court has done, avoided referring the matter to the CJEU. In Romania, the provisions of art. 99 letter ș of Law no. 303/2004, regarding the status of judges and prosecutors, further provide for the disciplinary sanctioning of the judge for non-compliance with a decision of the Constitutional Court.

In Joined Cases C-83/19, C-127/19, C-195/19, C-291/19, C-355/19 and C-397/19, the Court of Justice of the European Union held that “Romania must take due account of the requirements and recommendations made in the reports drawn up by the Commission pursuant to this Decision. In particular, that Member State may not adopt or maintain in the areas covered by the benchmarks measures which would risk jeopardising the result they foresee. If the Commission expresses doubts in such a report as to the compatibility of a national measure with one of the benchmarks, it is for Romania to cooperate in good faith with that institution in order to overcome, in full compliance with those benchmarks and the provisions of the Treaties, the difficulties encountered in achieving those benchmarks” (para. 172).

However, the discussion remains ongoing, the sincere cooperation is not limited to simply operation of reporting on progress, “it rather includes the obligation to take recommendations into account when adopting legislative or administrative measures in the areas covered by the CVM benchmarks” (see AG Bobek Opinion in Case C-83/19, paragraph 161, which also states that “since the CVM reports do not contain any legal obligations, they cannot in themselves be relied on either before the EU Courts or before the national courts”).

In such circumstances, the involvement of the Court of Justice of the European Union seems to be the only serious option.

Picture credits: jessica45.