The Court of Justice of the European Union, ultima ratio for saving the independence of the judges in Romania – a commentary of the CJEU preliminary ruling in C‑83/19, C‑127/19, C‑195/19, C‑291/19 and C‑355/19 and C‑397/19, AFJR and others
On 18th of May 2021, the European Court of Justice (ECJ) delivered a long awaited judgment in the so-called Romanian rule of law preliminary references (Opinion 1 and Opinion 2 of AG Bobek was delivered 8 months earlier). These references offered the Court the opportunity to comprehensively assess for the first time the multi-prong accountability regime of judges and prosecutors requiring the Court to develop a new vision on the judicial independence standards under Articles 2, 19(1)(2) TEU and their relation with Article 47 EU Charter. Six requests for preliminary ruling originating from courts from various regions of Romania are joined in the same preliminary ruling. The main laws in the dispute are part of a far-reaching reform in the field of justice and fight against corruption in undertaken in Romania in the course of 2017-2019.
In less than 2 years, several amendments were made to the key laws governing the justice system in Romania (i.e. Law No. 303/2004 on the status of judges and prosecutors, Law No. 304/2004 on judicial organisation, and Law No. 317/2004 on the Superior Council of Magistracy), which have been argued by both domestic and international forums to be harmful to the progress on judicial independence, and rule of law. These laws were adopted in 2004, as part of the accession requirements undertaken by Romania to improve the independence and efficiency of the judicial system, a process which has been monitored by the European Commission since 2007, Decision 2006/928 on the occasion of Romania’s accession to the European Union (hereinafter “CVM”). The harmful amendments were hidden among other welcome amendments modernising certain human resources aspects, which made it difficult for non-experts to understand the cumulative negative effects of the reform (2018 EC Technical Report, p.4).
Among these harmful legislative amendments, the following have been most criticised: a new procedure for the interim appointment of the management of the Judicial Inspection; the establishment of the new Section for the Investigation of the Judiciary Offences as part of the Prosecutor’s Office, whose investigation allows to transfer dozens of files of high-level corruption from the dockets of the National Anticorruption Directorate, halting thus the investigation; changes in provisions on material liability of judges; elimination of merit-based judicial qualification standards for appointments to the higher courts. The common thread across these amendments was an increase in the executive’s involvement in across the magistrates organisation and accountability regimes (for a detailed analyses see Verfassungsblog). The fact that these amendments of the justice systems were adopted in a very short time period, mostly by way of accelerated procedure by the Parliament, which entailed limited debate in the two chambers of Parliament, and in spite of negative decisions of bodies representing the judiciary has attracted harsh criticism from: the Venice Commission (Opinion No 924/2018; Opinion No 950/2019); GRECO; the Consultative Council of European Judges; the Consultative Council of European Prosecutors; the European Commission; the European Parliament; the relevant professional associations of Romanian judges and prosecutors (The Romanian Judges’ Forum Association, the Movement for Defence of Prosecutors’ Status Association along with the Initiative for Justice Association); as well as by most judges and prosecutors in Romania, individually.
Three years since their enactment, and a new parliament majority in power, and these harmful legislative amendments are still in force, in spite of the wave of international criticism from relevant international bodies. The inexplicable reactions of some Presidents of the Superior Council of Magistracy, and the contradictory decisions of the Constitutional Court of Romania, which refused to take into account the opinions of the Venice Commission, arguing that it exercises its control exclusively by reference to national constitutional norms, have determined the domestic judiciary to refer preliminary questions to the Court of Justice of the European Union to remedy the lack of legislative response to the persistent regress from the rule of law. 13 requests for preliminary rulings have already been registered with the Court. The professional associations of Romanian judges and prosecutors played an essential role in this regard, as 6 of these requests were initiated at their request.
The inspiration came from the first relevant judgment of the CJEU (Associação Sindical dos Juízes Portugueses) on judicial independence being reviewed under Article 19(1)(2) TEU. This preliminary ruling gave us confidence and we imagined situations in which this case law could be developed, interpreting the requirements of the rule of law, taking into account the values and principles of European Union law enshrined in Articles 2 and 19 (1) of the Treaty on European Union and Article 47 of the Charter of Fundamental Rights. At the time of drafting the request for a preliminary ruling (2018), the relevant judgments of the CJEU on the disciplinary chamber and regime in Poland were not yet delivered (e.g. C-619/18 nor C-585/18 for summaries see TRIIAL Database). It thus took a lot of courage and an unbeatable vision from my colleagues, requiring the Court of Justice to undertake a new, complex and difficult role.
The first request for preliminary reference raised the issue of what is an independent disciplinary procedure for Romanian judges, without risks of political influence over the conduct of those proceedings (Case C-83/19). In concreto, it enquired about the conformity of the governmental appointment of the Chief Inspector of the Judicial Inspection on provisional basis following an Emergency Governmental Order with the CVM Decision, the Reports issued by the European Commission within the framework of this Decision, and Articles 2 and 19(1) TEU. The Chief Inspector of the Judicial Inspection tried to block the procedure, filing a request for relocation of this first request for a preliminary ruling. This action led to further requests for preliminary ruling being sent by several other courts.
Four other requests for preliminary ruling concerned the interpretation of, first, Articles 2 and 19(1)(2) TEU, as regards the establishment and functioning of Section for the Investigation of Offences Committed within the Judiciary (hereinafter ‘SIOJ’), because of the possibility of indirect pressure being exerted on members of the judiciary. Second, the Court was invited to interpret Article 47 EU Charter in regard to the composition and functioning of SIOJ which did not ensure the right of the judge under investigation to a fair and impartial trial within a reasonable time (C‑127/19, C‑195/19, C‑291/19 and C‑355/19). The President of the Romanian Superior Council of Magistracy initiated a relocation and cancellation of one of these request for a preliminary ruling concerning the newly established, but not yet functioning, Section for the Investigation of Crimes in Justice (Case C-127/19). This later was rejected, but only one year after the date of addressing the request of the preliminary ruling.
The sixth request for preliminary ruling enquires about the requirements under Article 2 and 4(3) TEU in regard to a national legislation, which defines very broadly ‘judicial errors’, without specifying the nature of the provisions infringed, the scope of application of those provisions, ratione materiae and ratione temporis, the methods, time limits and procedures for establishing infringement of legal provisions, or the authority competent to establish infringement committed by the magistrates, and thus creates a risk of pressure being indirectly exerted on the judiciary by the executive through the Ministry of Finance, which plays a central role in the civil liability regime.
The repetitive nature of some of the requests for a preliminary ruling, namely the referral in waves of the Court of Justice of the European Union. Practically, the Chief Inspector of the Judicial Inspection and some of the members of the Superior Council of Magistracy acted against any involvement of the Court of Justice of the European Union, supporting in fact the counter-reforms.
There was a time when the judges and prosecutors in Romania were out protesting every week on the steps of court buildings and prosecutor’s offices, in an attempt to oppose the assault against the foundations of the rule of law, and disciplinary actions or criminal investigations were launched almost daily against many of them (and especially, against those who reacted against the amendments to the laws of justice) by the Judicial Inspection and the SIOJ. The Judicial Inspection also conducted a series of controls at the office of the General Prosecutor and the National Anticorruption Directorate and a series of disciplinary investigations were started against the heads of key judicial institutions (the President of the High Court of Cassation and Justice, the General Prosecutor, the former Chief Prosecutor of the National Anticorruption Directorate, the Deputy Chief Prosecutor of the National Anticorruption Directorate). All these disciplinary actions were finally rejected by the High Court of Cassation and Justice.
The pressure continues also today. Three of the judges who initiated the litigation resulting in the herein discussed preliminary references are now facing disciplinary actions in the form of interim suspension for private communication on encrypted social networks which allegedly violates the rules of professional integrity. The ongoing disciplinary actions have the strong appearance of a conflict of interests and may be construed as retaliatory actions by the current Chief Inspector, who is the same as the one whose interim appointment is challenged in the present CJEU cases.
The added value of this rich and multi-faceted judgment of the ECJ compared to the rulings in the Polish line of cases consists in first, clarifying judicial independence standards beyond the disciplinary regime to other forms of accountability, such as the civil and criminal one. Secondly the ECJ clarifies for the first time the legal nature and force of the CVM Decision and the annual reports issued by the European Commission under this Decision, given their contested justiciability at the national level (Opinion AG Bobek, paras 46 and 48). Third, the ECJ further clarifies the legal force of Article 2 TEU in regard to accountability regimes. A an overarching theme, the ECJ emphasises that the competent authorities initiating and conducting investigation over the activity of magistrates capable of engaging the disciplinary, civil or criminal liability of judges and prosecutors must ‘act objectively and impartially in the performance of their duties, and that the substantive conditions and procedural arrangements leading to the exercise of those powers are such as not to give rise to legitimate doubts as to the impartiality of those authorities.’
The Court carries out an abstract review of the conformity at European Union level with regard to national legislative solutions in Romania, by reference to the principle of independence of judges, arising mainly from the right to a fair trial enshrined in the second paragraph of Article 47 of the Charter, with reference to Article 19 (1) second paragraph of TEU (their contents coincide at least in terms of the elements of independence and impartiality of the judicial power). The application of the Charter, pursuant to Article 51 (1) thereof, was determined by the CVM Decision 2006/928/CE and the Act of Accession, with national legislative solutions falling within their scope.
In contrast, in Asociația Forumul Judecătorilor din România și alții, the Court seems to be moving towards recognizing the direct effect of Article 2 TEU, noting that the requirement of the independence of the courts, which is inherent in the activity of the courts, relates to the essential content of the right to effective judicial protection and the fundamental right to a fair trial, which is essential as a guarantor of the protection of all rights arising from EU law and the preservation of the common values of the Member States set out in Article 2 TEU, in particular the value of the rule of law.
The Court ruled that CVM Decision 2006/928/CE is binding in its entirety on Romania as from its accession to the European Union and obliges it to address the benchmarks, which are also binding, set out in the annex to the decision. Those benchmarks, defined on the basis of the deficiencies established by the Commission before Romania’s accession to the European Union, seek in particular to ensure that that Member State complies with the value of the rule of law. Romania is required to take appropriate measures to meet the benchmarks and to refrain from implementing any measure which could jeopardies their being met. In accordance with the principle of sincere cooperation, set out in Article 4(3) TEU, Romania must take due account of those requirements and recommendations, and must refrain from adopting or maintaining measures in the areas covered by the benchmarks which could jeopardise the result prescribed by those requirements and recommendations.
Regarding the interim appointments to management positions within the Judicial Inspection, the Court holds that national legislation is likely to give rise to such doubts where, even temporarily, it has the effect of allowing the government of the Member State concerned to make appointments to the management positions of the body responsible for conducting disciplinary investigations and bringing disciplinary proceedings against judges and prosecutors, by disregarding the ordinary appointment procedure laid down by national law.
As regards the creation of a special prosecution section with exclusive competence for offences committed by judges and prosecutors, the Court clarifies that, in order to be compatible with EU law, such legislation must, first, be justified by objective and verifiable requirements relating to the sound administration of justice and, secondly, ensure that that section cannot be used as an instrument of political control over the activity of those judges and prosecutors and that the section exercises its competence in compliance with the requirements of the EU Charter of Fundamental Rights of the European Union. If it fails to fulfil those requirements, that legislation could be perceived as seeking to establish an instrument of pressure and intimidation with regard to judges, which would prejudice the trust of individuals in justice.
Moreover, the CJEU clearly notes that:
”216 (…) an autonomous structure within the prosecution service, such as the special prosecution section, which is responsible for investigating offenses committed by judges and prosecutors, in that it could, depending on the rules governing competences, the composition and the functioning of such a structure, as well as the relevant national context, be seen as aimed at instituting an instrument of pressure and intimidation against judges, and thus lead to an appearance of lack of independence or impartiality of these judges, is likely to undermine the confidence that justice must inspire in litigants in a democratic society and the rule of law. (…)
219 It emerges from the information available to the Court and from the report from the Commission to the European Parliament and the Council of 22 October 2019 on the progress made by Romania under the cooperation and verification mechanism [COM (2019) 499 final, p.5], that practical examples drawn from the activities of the special prosecution section are such as to confirm […] that this section is akin to an instrument of political pressure and that it exercises its powers to modify the conduct of certain criminal investigations or legal proceedings concerning, among other things, high-level corruption in a way that raises doubts as to its objectivity, which is for the referring courts to assess, in accordance with to the case-law recalled in paragraph 201 of this judgment.”
Regarding the State’s financial liability and the personal liability of judges for a judicial error, the Court holds that national legislation governing the financial liability of the State and the personal liability of judges in respect of the damage caused by a judicial error can be compatible with EU law only in so far as the […] judge’s personal liability for such a judicial error is limited to exceptional cases and is governed by objective and verifiable criteria, arising from requirements relating to the sound administration of justice, and also by guarantees designed to avoid any risk of external pressure on the content of judicial decisions. The fact that a decision contains a judicial error cannot, in itself, suffice to render the judge concerned personally liable. It is important that the rights enshrined in the Charter, in particular the rights of defence of a judge, should be fully respected and that the body with jurisdiction to rule on the personal liability of a judge should be a court. In particular, a finding of judicial error cannot be binding in the action for indemnity brought by the State against the judge concerned although that judge was not heard during the previous proceedings seeking to establish the financial liability of the State.
Finally, the Court holds that the principle of the primacy of EU law precludes national legislation with constitutional status which deprives a lower court of the right to disapply of its own motion a national provision falling within the scope of Decision 2006/928 and which is contrary to EU law. The Court holds that, where it is proved that the EU Treaty or Decision 2006/928 has been infringed, the principle of the primacy of EU law will require the referring court to disapply the provisions at issue, irrespective of whether they are of a legislative or constitutional origin. The ECJ has not declared the national provisions at issue as incompatible with EU law, but it has gave domestic courts the necessary standards and principles to carry out themselves a legality review in light of EU law.
Applying the ECJ preliminary ruling at the national level
The national courts, which are to apply the provisions of European Union law, are required to ensure the full effect of those provisions by removing, ex officio if necessary, the application of any provision contrary of the national law without having to request or await the prior abolition of this national provision by law or by any other constitutional procedure. The national judge is the first European judge to ensure the effectiveness of the application of EU law, and the priority of EU law imposes and, implicitly, allows the national judge to ignore even a decision of the Constitutional Court.
In light of the ECJ conclusions, it appears that the national legislative provisions on the SIOJ cannot function in its current form. Consequently, the National Anticorruption Directorate and the Directorate for Investigating Organised Crime and Terrorism will regain, as specialised prosecutor’s offices, the competence to investigate judges and prosecutors, and the special section will no longer exist.
Furthermore, the national legislative provisions on the interim appointment of the Chief Inspector of the Judicial Inspection will no longer apply, due to the nature contrary to European Union law. All documents issued during the interim period by this Chief Inspector (including the Regulation on the organisation and functioning of the Judicial Inspection or the acts for the appointment of judicial inspectors) will be null and void (the Domino Principle), insofar as they can still be appealed against and have not already been abolished.
All CVM Reports must be duly taken into account by Romania, taking into consideration the requirements of the principle of sincere cooperation provided for in Article 4 (3) of TEU. On this basis, they can no longer be ignored by any internal public authority in Romania, not even by the Constitutional Court. Moreover, pending before the Romanian Constitutional Court, there are numerous exceptions of unconstitutionality regarding not only the aspects for which the wave of notifications to the CJEU was triggered, but also, for example, the non-compliance with the Constitution of the procedures for promoting judges to the High Court of Cassation and Justice or to appeal courts or tribunals, because this “counter-reform” of 2018-2019 also affected the pillars of meritocracy in the Romanian judicial system, the selections made on the basis of subjective interviews replacing the tough exams within the profession.
Failure to comply with a judgment of the ECJ may result in the Court imposing financial penalties in the form of a lump sum and/or a daily payment. Sanctions are calculated considering the importance of the rules infringed and the impact of the infringement on the general and private interests, the period during which EU law has not been applied, the Member State’s ability to pay (fines must have a deterrent effect). The amount is proposed by the European Commission and may be amended by the ECJ in its judgment.
It is the duty of honest judges and prosecutors to ensure that they conduct their profession in an independent, impartial, meritocratic environment. To a significant extent, the Romanian judicial system has stubbornly resisted the attacks below the belt, both from the outside and from the inside (the latter being the most complicated ones), and the judgment of the Court of Justice of the European Union brings rays of sunshine, as the system can still be rebuilt, and the pillars are still standing. Even if judges solving all organisational problems ultima ratio is not a characteristic of a functional rule of law, it seems that, in the case of Romania, this was the only real option.
This blog post was commissioned under the TRIIAL – TRust, Independence, Impartiality and Accountability of judges and arbitrators safeguarding the rule of Law under the EU Charter Horizon 2020, project no. 853832, JUST-JTRA-EJTR-AG-2018 – https://cjc.eui.eu/projects/triial/
Dragoș Călin – Ph.D. Judge, Bucharest Court of Appeal, co-president of the Romanian Judges’ Forum Association, Director of the Judges’ Forum Review (Revista Forumul Judecătorilor). Professional e-mail: [email protected]