Rule of law cases – Romania

Romanian reforms in the areas of judicial organisation, the disciplinary regime applicable to judges, financial State liability and the personal liability of judges as a result of judicial error, Interim appointment of Romanian Chief Judicial Inspector and establishment of specific prosecution section for members of the judiciary, the cases concern the legal effect of decisions and reports based on the Cooperation and Verification Mechanism (MCV) established by Commission Decision 2006/928 which assesses the progress of Bulgaria and Romania with regard to the rule of law situation

Mechanism for Cooperation and Verification (CVM), Art. 19 TEU, Art. 47 CFR

Art. 2 and 19 TEU, Art. 47 CFR, Commission Decision 2006/928/EC (Cooperation and Verification Mechanism); the intervention of the Constitutional Court (a political/judicial body which is not part of the judiciary or the legislature) might restrict the constitutional jurisdiction of the courts - which prevents national courts from exercising its jurisdictional role, the referring court asks the CJEU if this is a breach of the obligations of Romania following its accessioin to the EU as regulated in the CVM

Art. 2 & 29 TEU, Art. 47 CFR; intervention of a constitutional court (a body which is not, under national law, a judicial institution), concerns about interpretation and application of infra-constitutional legislation in the activity of establishing panels hearing cases by constitutional court as it might compromise judicial independence and the rule of law

Art. 19 TEU, Art. 47 CFR; similar to Joined Cases C‑357/19 and C‑547/19, Euro Box Promotion and Others and aspects of Asociaţia Forumul Judecătorilor din România and Others, position and competences of Constitutional Court of Romania, should Art. 47 CFR interpreted as encompassing the requirement of the specialisation of judicial panels.

Art. 2 and 19 TEU, Art. 47 CFR; similar to other cases concerning position and competences of Constitutional Court as it is a body outside of the judiciary but rules on composition of judge panels seized of the case of a chamber of the supreme court

Not precluded is national law that prescribes that the decisions of the national constitutional court are binding on ordinary courts, provided the independence of that constitutional court is guaranteed by national law. Yet, precluded is national law that can trigger disciplinary liability of national judges of ordinary courts when they fail to comply with the decisions of the national constitutional court.

Art. 2 TEU, Art. 47 CFR, primacy of EU law; competences of Constitutional Court of Romania (body outside judicial system)

Art. 19 TEU, ARt. 47 CFR, Directive 2017/1371 and Directive 2015/849; requirements arising from EU law in respect of the organisational and procedural arrangements within national judiciaries and their relations with national constitutional courts when it comes to the examination of corruption cases

Art. 2 and 19 TEU, Art. 47 CFR, Commission Decision 2006/928/EC; can the CVM be considered an act by an EU institution and thus subject of interpretation by CJEU; can the principle of judicial independence be interpreted as also applying to procedures for the promotion of judges in office, requirement for infringement of judicial independence concerning promotion to a higher court by a body that carries out both assessments of judges for promotion purposes and the judicial review of judgments delivered by those judges;promotion of judges to executive positions, contrary to CVM recommendations

Art. 2 and 19 TEU, Art. 47 CFR; disciplinary procedure and disciplinary penalty of the judge for failing to comply with a decision of the Constitutional Court, primacy of the EU law

coordination and verification mechanism

The Court ruled that the principle of proportionality must be understood to mean that it does not preclude national legislation that establishes a measure prohibiting the holding of any elective public office for a predetermined period of three years against a person who has been discovered to have a conflict in holding such an office provided that, in light of all relevant circumstances, the application of that legislation results in the imposition of a penalty.

Article 2 and 19(1) TEU; Article 47 CFR

Article 2 and 19(1) TEU; Article 47 CFR.

Preliminary reference procedure on independence and impartiality of courts under EU law. According to AG Collins, EU law precludes national legislation making the Deputy Chief Inspector responsible for overseeing the investigation of complaints against the Chief Inspector.

Primacy of EU law precludes ordinary national courts from being bound by case law of higher national courts which is contrary to EU law. It also precludes discplinary liability of the judges concerned when they don't follow the precedents.

EU law does not preclude the promotion of judges to a higher court being based on an assessment, by a board composed of (i) the president and (ii) members of that higher court, of their work and conduct. However, the relevant substantive conditions and procedural rules must be such that they cannot give rise to reasonable doubts as to the independence and the impartiality of the judges concerned, once promoted.

Question raised was whether associations of judges and prosecutors, established to promote an independent, impartial and effective judiciary, can rely on arts 2 and 19(1)TEU, read in the light of arts 12 and 47 Charter, to show that they have locus standi to bring actions before a national court in furtherance of those objectives? Court: above mentioned arts do not preclude national legislation which makes the admissibility of an action for annulment of the appointment of prosecutors responsible for criminal prosecutions against magistrates conditional on the existence of a legitimate private interest, thereby precluding in practice the possibility of a professional association of magistrates bringing such an action appeal in defense of the principle of judicial independence.