Summaries of judgments made in collaboration with the Portuguese judge and référendaire of the CJEU (Nuno Piçarra and Sophie Perez)

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Judgment of the Court (First Chamber) of 7 September 2023, Asociaţia «Forumul Judecătorilor din România», Case C‑216/21, EU:C:2023:628

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 – Article 2 TEU – Second subparagraph of Article 19(1) TEU – Rule of law – Charter of Fundamental Rights of the European Union – Article 47 – Independence of judges – National legislation altering the scheme for the promotion of judges

Facts

In 2019, the Consiliul Superior al Magistraturii (Superior Council of Magistracy, Romania) (CSM) altered the procedure for the effective promotion of judges to the regional courts and the courts of appeal by replacing the old written exams with an assessment of candidates’ work and conduct during their last three years of service. The Asociaţia «Forumul Judecătorilor din România» (‘Forum of Judges of Romania’ Association) and YN brought an action before the referring court, the Curtea de Apel Ploiești (Court of Appeal, Ploieşti, Romania), for partial annulment of that decision.

According to the applicants in the main proceedings, the new procedure confers greater power on the presidents of the courts of appeal, has the effect of encouraging attitudes of hierarchical subordination towards the members of the higher courts, who are called upon to assess the work of judges who are candidates for promotion, and therefore is likely to impair the independence of judges. The Curtea de Apel Ploieşti had doubts as to the compatibility of a promotion scheme such as that introduced by the legislation at issue in the main proceedings with the principle of the independence of judges, enshrined in the second subparagraph of Article 19(1) TEU and Article 47 CFREU.

Findings of the ECJ

In its judgment, the ECJ rules that a piece of national legislation relating to the scheme for the promotion of judges is required to ensure compliance with the principle of the independence of judges, enshrined in the second subparagraph of Article 19(1) TEU and Article 47 CFREU.

The ECJ recalls that, pursuant to the second subparagraph of Article 19(1) TEU, every Member State must ensure that the bodies which are called upon, as ‘courts or tribunals’ within the meaning of EU law, to rule on questions related to the application or interpretation of EU law, and which thus come within its judicial system in the fields covered by EU law, meet the requirements of effective judicial protection, maintaining its independence and impartiality being essential. On the basis of settled case-law (judgment of 29 March 2022, Getin Noble Bank, C‑132/20, EU:C:2022:235), the ECJ specified that “the independence of judges must be guaranteed and safeguarded not only at the stage of their appointment but also (…) throughout their career, including in the context of promotion procedures, since procedures for the promotion of judges form part of the rules applicable to the status of judges”. Therefore, it is “necessary that the substantive conditions and procedural rules governing the adoption of decisions to promote judges are such that they cannot give rise to reasonable doubts, in the minds of individuals, as to the imperviousness of the judges concerned to external factors and as to their neutrality with respect to the interests before them, once they have been promoted”.

In this context, the ECJ declares that the second subparagraph of Article 19(1) TEU, read in conjunction with Article 2 TEU and Article 47 CFREU, must be interpreted as “not precluding a piece of national legislation pursuant to which the scheme for the promotion of judges to a higher court is based on an assessment, carried out by a board composed of (i) the president of that higher court and (ii) members of that court, of the work and conduct of the persons concerned, provided that the substantive conditions and procedural rules governing the adoption of decisions relating to effective promotion are such that they cannot give rise to reasonable doubts, in the minds of individuals, as to the imperviousness of the judges concerned to external factors and as to their neutrality with respect to the interests before them, once they have been promoted”.

In the present case, as to the stage of the procedure for the promotion of judges which is based on an assessment carried out by a board composed, at the level of each court of appeal, of the president of that court and four of its members, who are appointed by the CSM, the ECJ holds that “the fact that certain judges exercise control over the professional activity of their peers is not, as such, indicative of a potential problem regarding the independence of judges”, in so far as, in their capacity as judges, the members of the assessment board are themselves required to provide guarantees of independence.

According to the Curtea de Apel Ploieşti, the new procedure is likely to lead to power being concentrated in the hands of certain members of that assessment board, and, in particular, the presidents of the courts of appeal, which is likely to give those members decisive influence over the outcome of the procedure for promotion. While the ECJ does not exclude that such a situation may affect the way in which that assessment board actually performs its role, such a concentration of power, assuming it to be established, cannot be regarded as being, as such, incompatible with the second subparagraph of Article 19(1) TEU. Indeed, “it would also be necessary to establish that that concentration of power, taken in isolation or combined with other factors, is liable to offer, in practice, the persons on whom it is conferred the ability to influence the decisions of the judges concerned, and thus create a lack of independence or an appearance of partiality on their part likely to prejudice the trust which justice in a democratic society governed by the rule of law must inspire in individuals”.

The ECJ further considers, subject to the assessment which alone the Curtea de Apel Ploieşti is responsible for, that the substantive conditions and the procedural rules governing the adoption of decisions relating to effective promotion do not appear to be such as to jeopardise the independence of the judges promoted at the end of that procedure.

Judgment of the Court (First Chamber) of 21 September 2023, Juan, Case C‑164/22, EU:C:2023:684

Reference for a preliminary ruling – Judicial cooperation in criminal matters – Framework Decision 2002/584/JHA – European arrest warrant – Grounds for non-execution – Point 2 of Article 3 – Principle ne bis in idem – Concept of ‘same acts’ – Set of concrete circumstances which are inextricably linked together – Fraudulent activities carried out by the requested person in two Member States, through two separate legal entities and to the detriment of different victims

Facts

A Spanish national was, from the end of May 2001, chairman of the board of directors of a Portuguese company entirely controlled by a Spanish company, of which he was also, from the end of January of the same year, chairman of the board of directors. The main activity of the two companies was the same: the marketing of investment products which concealed a fraudulent pyramid scheme. The massive uptake of those investment products by individuals allowed the Portuguese company to experience exceptional growth and expansion. Following the intervention of the Spanish judicial authorities in spring 2006, then that of the Portuguese judicial authorities, the companies ceased their activities, which led to significant financial losses for the investors.

That Spanish national is serving a prison sentence of 11 years and 10 months in Spain for serious fraud and money laundering which was imposed on him by a judgment of 2018 that became final in 2020. He was also sentenced in Portugal to six years and six months in prison for serious fraud. A European arrest warrant (EAW) was therefore issued against him for the purpose of executing that sentence and forwarded to the competent Spanish authorities.

The Juzgado Central de Instrucción n.º 1 de la Audiencia Nacional (Central Court of Preliminary Investigation No 1 of the National High Court, Spain) refused to execute that EAW on the ground that the requested person was a Spanish national, while deciding that he would serve in Spain the sentence imposed in Portugal. The requested person, who brought an appeal against that order before the Audiencia Nacional (National High Court, Spain), claims that the facts on which the Spanish judgment is based are the same as those that form the subject of the Portuguese judgment. Consequently, the execution of both the EAW at issue and the Portuguese judgment entails a violation of the principle ne bis in idem.

The Audiencia Nacional states that, even if this were not a situation in which the principle ne bis in idem applied, it must nevertheless be held that there is a set of criminal acts which may be classified as a “continuing criminal offence”, within the meaning of Spanish criminal law. Such a continuing criminal offence would cover all of the acts, including those committed in Portugal, and a single sentence should be applied to them. In those circumstances, the Audiencia Nacional referred to the ECJ questions concerning the interpretation of the principle ne bis in idem, enshrined in Article 50 CFREU.

Findings of the ECJ

Having regard to the subject matter of the dispute in the main proceedings and the information provided by the referring court, the ECJ reformulates the questions referred to it in order to provide a useful response based on point 2 of Article 3 of Framework Decision 2002/584, as the purpose of this provision is to ensure that a person is not prosecuted or tried more than once in respect of the same acts, and reflects the principle ne bis in idem, enshrined in Article 50 CFREU.

That provision indeed sets out a ground for mandatory non-execution pursuant to which the executing judicial authority must refuse to execute the EAW if it is informed that the requested person has been finally judged in a Member State in respect of the same acts, provided that, where there has been sentence, the sentence has been served or is currently being served or may no longer be executed under the law of the sentencing Member State.

As regards the concept of “same acts”, within the meaning of point 2 of Article 3 of Framework Decision 2002/584, the ECJ recalls that that concept should be interpreted as referring only to the identity of the material facts, encompassing a set of concrete circumstances, irrespective of the legal classification given to them or the legal interest protected, stemming from events which are, in essence, the same, in that they involve the same perpetrator and are inextricably linked together in time and space, as the principle ne bis in idem is not intended to be applied where the facts at issue are not identical, but merely similar.

Subject to verification by the referring court, it appears to the ECJ that the facts referred to in the Spanish and Portuguese judgments are not identical. The ECJ adds that the fact raised by the referring court, that the offences committed in Spain and those committed in Portugal should be classified, under Spanish law, as a ‘continuing criminal offence’, cannot affect that conclusion, in so far as point 2 of Article 3 of Framework Decision 2002/584 requires an assessment of the material facts on the basis of objective factors which is irrespective of their classification in national law.

In its judgment, the ECJ interprets point 2 of Article 3 of Framework Decision 2002/584 as “precluding the execution of a European arrest warrant issued by a Member State in a situation where the requested person has already been finally judged in another Member State and is serving a prison sentence there for the offence established in that judgment, provided that that person is being prosecuted in the issuing Member State in respect of the same acts, without it being necessary, in order to establish the existence of the ‘same acts’, to take account of the classification of the offences in question under the law of the executing Member State”.

Since a response to the second question is not necessary in order for the referring court to be able to rule on the case before it, the ECJ declares that question inadmissible.