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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On 24 November 2022, the Pitești Court of Appeal referred two preliminary questions to the Court of Justice of the European Union, the first of which concerns the legitimacy of locus standi and the procedural interest of professional associations of judges in order to promote and defend the independence of judges and the rule of law, as well as to safeguard the status of the profession, in situations where associations seek to obtain effective jurisdictional protection in areas regulated by Union law.

The litigation initiated by the Romanian Judges’ Forum Association respectively by the Movement for Defending the Status of Prosecutors Association, two of the most important associations of Romanian judges and prosecutors, seeks the annulment of administrative acts regarding the appointment within the Prosecutor’s Office attached to the High Court of Cassation and Justice of prosecutors who will conduct criminal investigations in corruption cases regarding judges and prosecutors, given that, in Romania, the competence of the National Anticorruption Directorate in this field has been completely removed.

Law No. 49/2022, the legal basis for issuing such administrative acts, was criticised in Opinion No. 1079/2022 by the Venice Commission, which listed the advantages of the resorting to specialised prosecutors for investigating corruption offences, showing that the new mechanism is more vulnerable in terms of its functional independence than the National Anticorruption Directorate, a specialised, efficient prosecution structure that covers the entire territory of Romania, with the necessary technical means and experience to investigate complex cases of corruption, being implausible that a structure of non-specialised prosecutors at the level of the Prosecutor’s Office attached to the High Court of Cassation and Justice and of the prosecutor’s offices attached to the courts of appeal be better placed to conduct investigations into allegations of corruption against judges and prosecutors than the current specialised prosecutor’s office. The Venice Commission recommended restoring the powers of the specialised prosecutor’s offices to also investigate and prosecute criminal offences within their jurisdiction committed by judges and prosecutors.

In Romania, by Decision No. 8 of 2 March 2020, the High Court of Cassation and Justice – the Panel for settling the appeal in the interest of the law admitted the appeal in the interest of the law formulated by the Management Board of the Brașov Court of Appeal, establishing that, “in order to exercise legality control over administrative acts upon the request of associations, as interested social bodies, invoking the legitimate public interest must be subsidiary to invoking a legitimate private interest, the latter arising from the direct link between the administrative act subject to the legality control and the direct purpose and objectives of the association, according to the bylaws.” The decision is binding, according to the provisions of art. 517 para. (4) of the Civil Procedure Code.

Based on this decision, the High Court of Cassation and Justice rejected, as lacking interest, the actions filed by the Romanian Judges’ Forum Association against Judgment No. 49/17.01.2019 of the Section for Judges of the Superior Council of Magistracy regarding the Methodology on the appointment to the position of judge in the absence of a contest, under the conditions of art. 33 ind. 1 of Law No. 303/2004 on the status of judges and prosecutors, republished, as subsequently amended and supplemented, the appointment to the position of assistant magistrate under the conditions of art. 67 para. 5, as well as the reinstatement in the position of judge or assistant magistrate under the conditions of art. 83 para. 3 of the same law (Decision No. 4524/ 7 October 2021), as well as by the Romanian Judges’ Forum Association and the Movement for Defending the Status of Prosecutors Association against Decision No. 82 of 15 May 2019 of the Full Court of the Superior Council of the Magistracy regarding the appointment of the chief inspector of the Judicial Inspection (Decision No. 4462/6 October 2021).

According to their own bylaws, the purpose of the previously indicated professional associations is, inter alia, satisfying the public interest represented by the independence of the judiciary, understood both autonomously, as a premise of the rule of law and a guarantee of a fair trial, as well as by reference to related values, specific to the rule of law, the associations being able to resort to bringing administrative litigation actions, including actions that concern the satisfaction of the public interest of the independence of the judiciary, both to defend the professional interests of the members of the judiciary, including the members of the associations, and to defend the democratic freedoms and principles.

Regulating the object of the administrative litigation judicial action, in Romania, the Administrative Litigation Law No. 554/2004 provides, in art. 1 para. 1, that any person that considers themselves to be aggrieved in relation to their own right or legitimate interest, by a public authority, by an administrative act or by the lack of settlement of a request within the legal term, may refer to the competent administrative litigation court to request the annulment of the act, the recognition of the claimed right or legitimate interest and the remedy of the damage caused to the same. The legitimate interest can be both private and public. However, Art. 8, para. 1¹ highlights the regulation in the sense that natural persons and legal persons under private law may file claims invoking the defence of a legitimate public interest to the extent that the damage to the legitimate public interest logically follows from the violation of a subjective right or legitimate private interest. The same normative act defines, in art. 2 letters p) and r), the legitimate public interest and private interest. Thus, according to these legal texts, the legitimate private interest designates the possibility of claiming a certain conduct, in consideration of the achievement of a future and foreseeable, prefigured, subjective right, while the legitimate public interest is that which aims at the rule of law and constitutional democracy, guaranteeing the rights, freedoms and fundamental duties of citizens, meeting community needs, achieving the competence of public authorities.

In other words, noting that invoking the legitimate public interest must be subsidiary to invoking a private legitimate interest, hundreds of unconstitutional normative acts could be issued at any time regarding the status of magistrates and the rule of law, and no appeal may be filed by any professional association of judges, which is contrary to the rule of law itself.

Moreover, the Supreme Court of Spain held that the rule of law cannot create
“spaces immune to judicial control” (Decision of 10 May 2016, file no. 383/2013). According to the French case law, a union of judges and prosecutors justifies an interest that ensures its capacity to challenge an act of appointment as advocate general at the Court of Cassation, since that appointment is likely to affect in a sufficient, direct and certain manner the collective interests of the members of the judiciary, whose interests are defended by the same, even if this does not result in depriving another magistrate of said appointment (Conseil d’État, n° 354218, Judgment of 18 January 2013).

According to Opinion No. 23 (2020) – The role of associations of judges in supporting judicial independence, issued by the Consultative Council of European Judges (CCJE), the main objectives of vast majority of associations are to promote and defend the independence of judges and the rule of law, and to safeguard the status and adequate working conditions of judges (para. 9).

Judges are basic cornerstones within States built on democracy, the rule of law and human rights. It is a logical consequence of this role that the above-mentioned European standard-setting documents envisage, and the statutes of many associations of judges express as central goals, two overriding objectives: 1) establishing and defending the independence of the judiciary; 2) fostering and improving the rule of law. Both objectives foster the effective enjoyment of the fundamental right to a fair trial by an independent and impartial tribunal set forth in Article 6 of the European Convention on Human Rights (para. 16).

The main objectives of associations of judges – fostering and defending the independence of judges and of the judiciary, the rule of law and human rights – are aligned with the fundamental principles of the Council of Europe and the commitments of its member States (para. 78).

States must not only refrain from applying unreasonable indirect restrictions on the right to assemble peacefully and to associate and on the right to freedom of expression but must also safeguard these rights. Member States should therefore provide a framework, which makes it possible for judges to freely exercise their right to associate and within which associations of judges can fruitfully work to fulfil their objectives (para. 79 and 80).

At the Union level, the right to freedom of association, provided by art. 12 of the Charter of Fundamental Rights of the European Union, implies not only the absence of discriminatory and unjustified restrictions regarding the establishment, registration, declaration and publicity of certain categories of private organisations, such as the professional associations of magistrates, but also the absence of any restrictions in effectively exercising the protection of their rights and legitimate interests (see case C-78/18, Commission v. Hungary, judgment of the Grand Chamber of the CJEU of 18 June 2020), which includes the right to a fair trial – free access to justice, provided by art. 6 of the European Convention on Human Rights.

In its case law, the CJEU noted, for example, the legitimacy of locus standi and procedural interest of environmental protection organisations, in the idea of depriving the Aarhus Convention of any useful effect (art. 9, para. 3 in conjunction with article 47 of the Charter): “Imposing those criteria must not deprive environmental organisations in particular of the possibility of verifying that the rules of EU environmental law are being complied with, given also that such rules are usually in the public interest, rather than simply in the interests of certain individuals, and that the objective of those organisations is to defend the public interest” (see, to that effect, Judgment of 12 May 2011, Bund für Umwelt und Naturschutz Deutschland, Landesverband Nordrhein-Westfalen, C‑115/09, EU:C:2011:289, paragraph 46, Judgment of 20 December 2017, case C-664/15, Protect Natur-Arten- und Landschaftsschutz Umweltorganisation, paragraph 47).

Also, by the Judgment of the Court (Grand Chamber) of 23 April 2020 pronounced in case C-507/18, NH against Associazione Avvocatura per i diritti LGBTI – Rete Lenford, it was held that an association of lawyers whose objective, according to its statutes, is the judicial protection of persons having in particular a certain sexual orientation and the promotion of culture and respect for the rights of that category of people automatically has, as a result of that objective and independently of its potential profit-making purpose, the standing to initiate a jurisdictional procedure aimed at ensuring compliance with the obligations arising from Directive 2000/78.

Article 19 of the TEU, which embodies the value of the rule of law stated in Article 2 of the TEU, entrusts the national courts and the Court with the task of guaranteeing the full application of Union law in all Member States, as well as the jurisdictional protection of the rights conferred on litigants by said right [Judgment of 25 July 2018, Minister for Justice and Equality (Deficiencies of the Judiciary), C-216/18 PPU, EU:C:2018:586, paragraph 50, Judgment of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C-619/18, EU:C:2019:531, paragraph 47, as well as Judgment of 5 November 2019, Commission v Poland (Independence of common law courts), C-192/18, EU:C:2019:924, paragraph 98].

In its case law, the CJEU resolved requests for preliminary rulings made by the courts in litigations concerning associations of judges and prosecutors challenging normative or administrative acts, with the aim of defending the independence of judges and the rule of law, as well as safeguarding the status the profession, not raising the question of the inadmissibility of such requests in light of the lack of procedural interest of said professional associations (see the Decision of the Grand Chamber of the Court of Justice of the European Union pronounced in related 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 and others, Judgment of 20 April 2021, case C-896/19, Repubblika).

For example, in the Repubblika case, on 25 April 2019, Repubblika (an association, registered as a legal person in Malta, whose objective is to promote the protection of justice and the rule of law in that Member State), filed, in accordance with Article 116 of the Constitution, an action, qualified as actio popularis, to the referring court, seeking a declaration that, given the existing system of appointment of judges, the Republic of Malta is in breach of its obligations under, inter alia, the provisions of Article 19(1), the second paragraph of the TEU in conjunction with the provisions of Article 47 of the Charter. It also requested that any appointment of judges under the existing system that occurred in the course of the proceedings initiated by said popular action be declared null and void and that other judges be appointed only in accordance with the recommendations contained in Opinion  No. 940/2018 of the Venice Commission of 17 December 2018 on Constitutional Arrangements and Separation of Powers and the Independence of the Judiciary and Law Enforcement in Malta [CDL-AD (2018)028], as well as Article 19(1) TEU and Article 47 of the Charter.

On 18 August 2022, four European associations of judges filed actions with the EUGC for annulment of the ECOFIN Council’s Implementing Decision of 17 July 2022, approving the Polish Recovery and Resilience Plan in accordance with Regulation (EU) 2021/241 (T-530/22, Medel v. Council, T-531/22, International Association of Judges v. Council, T-532/22, Association of European Administrative Judges v. Council, and T-533/22, Recthers voor Rechters v. Council).

In this context, the request for a preliminary decision recently submitted by the Pitești Court of Appeal will allow the Court of Justice of the European Union to analyse the creation of a new development, establishing the legitimacy of unconditional locus standi in situations where associations of judges seek to obtain effective jurisdictional protection in areas regulated by European Union law (promoting and defending the independence of judges and the rule of law, as well as safeguarding the status of the profession). Such an intervention would be a salutary one, likely to strengthen or reinforce, in certain EU Members where the counter-reform of the rule of law has gained momentum in the past years, the role that the associations of judges or prosecutors have undertaken at any risk, despite threats, unfair criticism and concerted attacks against their members.

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