Tag: judicial independence

The system of investigation of offences committed by judges and prosecutors in Romania, once again under the attention of the CJEU

On By revistaunioIn Essays1 Comment 
Dragoș Călin (Judge at the Bucharest Court of Appeal and Co-President of the Romanian Judges' Forum Association)
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By the decision issued on 24 November 2022, the Pitești Court of Appeal referred two preliminary questions to the Court of Justice of the European Union, the second of which concerns the compatibility of the new system of investigation of offences committed by judges and prosecutors, as a result of the dismantling of the famous Special Section (SIOJ), criticized by all relevant international bodies and regarding which the Court of Justice of the European Union (CJEU) itself expressed serious doubts related to the compatibility with the European Union law.

Thus, by the judgment issued 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 and Others, the Grand Chamber of the Court of Justice of the European Union established that Article 2 and the second subparagraph of Article 19(1) of the TEU, as well as the Commission Decision 2006/928 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 (CVM) must be interpreted as precluding national regulation that provides for the establishment in the Public Ministry of a specialized section that has exclusive competence to investigate the offences committed by judges and prosecutors without the establishment of such section being justified by objective and verifiable requirements related to the sound administration of justice and without being accompanied by specific guarantees that allow, on the one hand, to remove any risk that this section may be used as an instrument of political control over the activity of those judges and prosecutors likely to affect their independence and, on the other hand, to ensure that such competence can be used in relation to the latter in full compliance with the requirements resulting from Articles 47 and 48 of the Charter of Fundamental Rights of the European Union.

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The role of associations of judges in defending the rule of law: legitimacy of unconditional locus standi in situations where they seek to obtain effective jurisdictional protection in areas regulated by European Union law

On By officialblogunioIn EssaysLeave a comment 
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.

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Case C-205/22, C.D.A. Direct application by the national courts of the European Commission reports issued under the Cooperation and Verification Mechanism

On By officialblogunioIn Essays1 Comment 
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.”

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Summaries of judgments: Euro Box Promotion | Wiener Landesregierung and Others (Revocation of an assurance of naturalisation)

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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 (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 

Facts

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.[1]

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Once again about the priority of the EU law in Romania: “Amédée ou comment s’en débarrasser”

On By officialblogunioIn Essays1 Comment 
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.

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Case C-817/21, Inspecția Judiciară. Compatibility of the organization of an authority competent to carry out the disciplinary investigation of judges, which is under the total control of a single person, with the rules of the rule of law

On By officialblogunioIn Essays1 Comment 
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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The saga of requests for preliminary rulings by Romanian courts on the rule of law and the independence of judges continues, although, under pressure from the Romanian Constitutional Court’s decisions, ordinary judges have begun to refuse to apply European Union law. Failure to comply with the decisions of the Constitutional Court constitutes a disciplinary violation, a legislative solution that allows total disregard of the decisions of the Court of Justice of the European Union, for fear of disciplinary action. A climate of fear among judges was created by disciplinary actions initiated without any reservations by the Judicial Inspection against the judge of the Pitești Court of Appeal who dared to apply the CJEU decision of 18 May 2021, but also the judges who proposed and/or referred to the CJEU in this case.

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Summaries of judgments: DB v Commissione Nazionale per le Società e la Borsa (Consob) | A.B. and Others v Krajowa Rada Sądownictwa and Others

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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 (Grand Chamber) of 2 February 2021, DB v Commissione Nazionale per le Società e la Borsa (Consob), Case C-481/19, EU:C:2021:84

Reference for a preliminary ruling – Approximation of laws – Directive 2003/6/EC – Article 14(3) – Regulation (EU) No 596/2014 – Article 30(1)(b) – Market abuse – Administrative sanctions of a criminal nature – Failure to cooperate with the competent authorities – Articles 47 and 48 of the Charter of Fundamental Rights of the European Union – Right to remain silent and to avoid self-incrimination

1. Facts

The request for a preliminary ruling was made in proceedings between DB and the Commissione Nazionale per le Società e la Borsa (Consob) (National Companies and Stock Exchange Commission, Italy) concerning the lawfulness of two financial penalties imposed on DB for an administrative offence of insider trading and for failure to cooperate in the context of an investigation conducted by Consob. Regarding the latter, after applying on several occasions for postponement of the date of the hearing to which he had been summoned in his capacity as a person aware of the facts, DB had declined to answer the questions put to him when he appeared at that hearing.

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Editorial of October 2020

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by Filipe Marques, President of MEDEL (Magistrats Européens pour la Démocratie et les Libertés)

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Rule of Law in the European Union: the danger of a systematic change of the concept?

In the last day of September 2020, the European Commission publicly presented the first Rule of Law Report, intended to give an overview of the situation of Rule of Law in all twenty-seven EU Member States[i]. In the introductory words of this document, it is stated the Rule of Law, together with fundamental rights and democracy, “are the bedrock of our societies and common identity”.

The report came out just two weeks after President Ursula Von der Leyen, in her first State of the Union speech before the European Parliament Plenary, recognized that “the last months have also reminded us how fragile [Rule of Law] can be” and pledged to “always be vigilant, to care and nurture for the rule of law” [ii].

The current and ongoing situation in the EU, however, is much too serious to be tackled only with nice words in a speech or data collected in a report. The events and signs coming directly from the ground clearly show us that the time to act is now, before we reach a point of no return.

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Editorial of May 2020

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by José Igreja Matos, President of the European Association of Judges
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“With all due respect, I have no time for this”. The Hungarian Case

1. The Pandemic Crisis in Hungary. Background.

In Hungary, like in many other countries, the Covid19 pandemic and the envisaged measures to prevent its expansion determined the approval of emergency laws.

The Hungarian Government declared the state of danger on 11 March 2020. On that occasion the power to issue decrees in order to suspend the application of certain laws and to take other extraordinary measures was granted for a period of 15 days, except if the Government – on the basis of an authorization from Parliament – decided to extend the effect of the decree. In effect, on 30 March 2020, this extension has been granted by the Parliament on broad terms: “until the endangering situation cease to exist.”

It is now undisputable the absence of any defined time limit for the extensive powers conceded to the national Government.

In the particular case of the functioning of the courts, on 14 March, the Government declared an extraordinary period of judicial vacations. This means that for the duration of judicial vacation, no regular trial hearing should be scheduled except in urgent court cases. Hearings must be held by videoconference. If the personal contact during the hearing is unavoidable a special protocol were applicable for the protection of health.
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Judicial independence in Poland and Hungary – Going, Going, Gone? Preliminary Requests and Disciplinary Procedures – A shocking development

On By officialblogunioIn News3 Comments

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 by José Igreja Matos, President of the European Association of Judges
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1. Stating the obvious

The reference for a preliminary ruling, provided for Article 19(3)(b) of the Treaty on European Union and Article 267 of the Treaty on the Functioning of the European Union is an essential instrument for the European Union and, in particular, for national judges.

It is aimed to guarantee the uniform interpretation and application of EU law by offering to the courts and tribunals of Member States a procedure to acquire from the Court of Justice of the European Union a preliminary ruling concerning the interpretation of EU law or the validity of acts adopted by the institutions of the Union.

As easily predictable, the impact of a preliminary ruling procedure in EU legal system is immense also because the rulings of European Court of Justice (ECJ) are assumed as generally binding.

The ECJ itself does not have a power to enforce the accurate application of EU law; this is the reason why national courts or tribunals are obliged to bring the matters in question before the Court as frontrunners of the application of EU law.

The reference for a preliminary ruling is the only way for the national judges to directly convey with ECJ. This procedure helps the ECJ control on how the national courts apply EU law providing the uniformity and certainty essentials to the success of our Union.

Another aspect of major significance could be furthermore underlined: the preliminary ruling also ensures the protection of the rights of individuals. EU laws, in particular the criminal law, fall to be interpreted in accordance with the Charter of Fundamental Rights. The Article 6(1) of the Treaty of European Union affirms: “The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union … which shall have the same legal value as the Treaties”. In general terms, the Charter applies to Member States when they implement Union law (Case C-292/97 Karlsson and Others); therefore, the interpretation of the Charter provisions tends to be, if not now, in the foreseeable future, a fertile ground for the use of the preliminary ruling procedures.

The Member States are bound to respect fundamental rights in judicial cooperation, for instance, if a Member State is extraditing someone to another Member State in accordance with the scheme established by the European Arrest Warrant Framework Decision.
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