CJEU Joined Cases C-357/19, C-379/19, C-547/19, C-811/19 and C-840/19 / Judgment

Criminal proceedings against PM and Others
Policy area
Justice, freedom and security
Deciding body type
Court of Justice of the European Union
Deciding body
Court (Grand Chamber)
Type
Decision
Decision date
21/12/2021
ECLI (European case law identifier)
ECLI:EU:C:2021:1034
  • CJEU Joined Cases C-357/19, C-379/19, C-547/19, C-811/19 and C-840/19 / Judgment

    Key facts of the case:

    Requests for a preliminary ruling from the Înalta Curte de Casaţie şi Justiţie and Tribunalul Bihor.

    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.

     

    Outcome of the case:

    1. Commission Decision 2006/928/EC 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specific benchmarks in the areas of judicial reform and the fight against corruption is, as long as it has not been repealed, binding in its entirety on Romania. The benchmarks in the annex to that decision are intended to ensure that Romania complies with the value of the rule of law, set out in Article 2 TEU, and are binding on it, to the effect that Romania is required to take the appropriate measures to meet those benchmarks, taking due account, under the principle of sincere cooperation laid down in Article 4(3) TEU, of the reports drawn up by the Commission on the basis of that decision, and in particular the recommendations made in those reports.
    2. Article 325(1) TFEU, read in conjunction with Article 2 of the Convention drawn up on the basis of Article K.3 of the Treaty on European Union, on the protection of the European Communities’ financial interests, signed in Luxembourg on 26 July 1995, and Decision 2006/298 are to be interpreted as precluding national rules or a national practice under which judgments in matters of corruption and value added tax (VAT) fraud, which were not delivered, at first instance, by panels specialised in such matters or, on appeal, by panels all the members of which were selected by drawing lots, are rendered absolutely null and void, such that the cases of corruption and VAT fraud concerned must, as the case may be further to an extraordinary appeal against final judgments, be re-examined at first and/or second instance, where the application of those national rules or that national practice is capable of giving rise to a systemic risk of acts constituting serious fraud affecting the European Union’s financial interests or corruption in general going unpunished. The obligation to ensure that such offences are subject to criminal penalties that are effective and act as a deterrent does not exempt the referring court from verifying the necessary observance of the fundamental rights guaranteed in Article 47 of the Charter of Fundamental Rights of the European Union, but does not allow that court to apply a national standard of protection of fundamental rights entailing such a systemic risk of impunity.
    3. Article 2 TEU, the second subparagraph of Article 19(1) TEU and Decision 2006/928 are to be interpreted as not precluding national rules or a national practice under which the decisions of the national constitutional court are binding on the ordinary courts, provided that the national law guarantees the independence of that constitutional court in relation, in particular, to the legislature and the executive, as required by those provisions. However, those provisions of the EU Treaty and that decision are to be interpreted as precluding national rules under which any failure to comply with the decisions of the national constitutional court by national judges of the ordinary courts can trigger their disciplinary liability.
    4. The principle of primacy of EU law is to be interpreted as precluding national rules or a national practice under which national ordinary courts are bound by decisions of the national constitutional court and cannot, by virtue of that fact and without committing a disciplinary offence, disapply, on their own authority, the case-law established in those decisions, even though they are of the view, in the light of a judgment of the Court of Justice, that that case-law is contrary to the second subparagraph of Article 19(1) TEU, Article 325(1) TFEU or Decision 2006/928.
  • Paragraphs referring to EU Charter

    1) These requests for a preliminary ruling concern, in essence, the interpretation of Article 2 TEU and the second subparagraph of Article 19(1) TEU, Article 325(1) TFEU, Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’), Article 1(1) and Article 2(1) of the Convention drawn up on the basis of Article K.3 of the Treaty on European Union, on the protection of the European Communities’ financial interests, signed in Brussels on 26 July 1995 and annexed to the Council Act of 26 July 1995 (OJ 1995 C 316, p. 48; ‘the PFI Convention’), Commission Decision 2006/928/EC 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 (OJ 2006 L 354, p. 56) and the principle of primacy of EU law.

    ...

    63) In accordance with the case-law of the Court, it falls to the national courts, whilst ensuring the necessary observance of the fundamental rights guaranteed in the Charter and of general legal principles, to give full effect to the obligations under Article 325(1) TFEU and to disapply provisions of domestic law that preclude the application of effective penalties that act as a deterrent in matters of fraud affecting the European Union’s financial interests. In the light of that case-law, the question is raised whether the obligation on Member States under Article 325(1) TFEU and Article 1(1)(a) and (b) and Article 2(1) of the PFI Convention also covers the execution of criminal penalties that have already been applied. This also gives rise to the question whether the words ‘and any other illegal activities affecting the financial interests of the Union’, contained in Article 325(1) TFEU, include not only acts of corruption in the literal sense, but also attempted fraud committed in the context of a fraudulently awarded public contract which was intended to be financed using European funds but which, following the refusal of funding by the authority managing those funds, was charged in full to national budget. In that context, in the present case, there was a risk of the European Union’s financial interests being affected, even though such a risk did not materialise.

    ...

    65) In addition, having regard inter alia to the importance of the principle of legality, which requires that the law be foreseeable, precise and non-retroactive, the referring court asks whether the concept of a ‘tribunal previously established by law’, contained in second paragraph of Article 47 of the Charter precludes the interpretation of the Curtea Constituțională (Constitutional Court) that the composition of the referring court’s chambers of five judges is unlawful. In accordance with the case-law of the Court established in the judgments of 26 February 2013, Åkerberg Fransson (C‑617/10, EU:C:2013:105), and of 5 December 2017, M.A.S. and M.B. (C‑42/17, EU:C:2017:936), national courts, when they have to decide on disapplying provisions of substantive criminal law, are required to ensure that the fundamental rights of the persons accused of committing criminal offences are observed, whilst remaining free to apply national standards of protection of fundamental rights, provided that application of those standards undermines neither the level of protection provided for by the Charter, as interpreted by the Court, nor the primacy, unity and effectiveness of EU law.

    ...

    68) It is in those circumstances that the Înalta Curte de Casaţie şi Justiţie (High Court of Cassation and Justice) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

    1. 'Must Article 19(1) [TEU], Article 325(1) [TFEU], Article 1(1)(a) and (b) and Article 2(1) of the [PFI Convention] and the principle of legal certainty be interpreted as precluding the adoption of a decision by a body outside the judicial system, the [Curtea Constituțională (Constitutional Court)], which adjudicates on the lawfulness of the composition of Chambers hearing the case, in that way creating the conditions for allowing extraordinary actions brought against final judgments delivered in a given period?
    2. Must [the second paragraph of Article 47] of the [Charter] be interpreted as precluding a finding by a body outside the judicial system – binding under national law – of the lack of independence and impartiality of a Chamber which includes a judge responsible for judicial administration who has not been randomly appointed, but on the basis of a transparent rule known to the parties and unchallenged by them, applicable to all the cases dealt with by that same chamber?
    3. Must the primacy of EU law be interpreted as allowing the national court to disapply a decision of the constitutional court, handed down in a case concerning a constitutional dispute, binding under national law?’

    ...

    79) In those circumstances, the Tribunalul Bihor (Regional Court, Bihor) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

    1. 'Are the [CVM], established by [Decision 2006/928], and the requirements laid down in reports prepared in accordance with that mechanism binding on Romania?
    2. Is Article 2 [TEU], in conjunction with Article 4(3) [TEU], to be interpreted as meaning that the obligation on Romania to comply with the requirements laid down in reports prepared in accordance with the [CVM], established by [Decision 2006/928], forms part of the Member State’s obligation to comply with the principles of the rule of law, including in so far as concerns a constitutional court (a politico-judicial institution) refraining from intervening in order to interpret the law and to establish the specific and mandatory rules for the application of the law by judicial bodies, a task which falls within the exclusive jurisdiction of the judicial authorities, and in order to introduce new legislative measures, a task which falls within the exclusive competence of the legislative authorities? Does EU law require that the effects of any such decision, adopted by a constitutional court, should be disregarded? Does EU law preclude a provision of national law which governs the liability to disciplinary action of the judge who disapplied the decision of the Curtea Constituțională (Constitutional Court), in the context of the question referred?
    3. Does the principle of judicial independence, enshrined in the second subparagraph of Article 19(1) TEU and in Article 47 of the [Charter], as interpreted by the [Court] (… judgment of 27 February 2018, Associação Sindical dos Juízes Portugueses, C‑64/16, EU:C:2018:117), preclude the competences of courts being replaced by decisions of the Curtea Constituțională (Constitutional Court) ([Decisions No 51/2016, No 302/2017 and No 26/2019]), the result of which is that criminal proceedings are unforeseeable (retroactive application) and that it is impossible to interpret the law and apply it in the case under consideration? Does EU law preclude a provision of national law which governs the liability to disciplinary action of the judge who disapplied the decision of the Curtea Constituțională (Constitutional Court), in the context of the question referred?’

    ...

    87) In order to be able to rule on the plea of illegality raised by CY, the referring court wishes to ask the Court whether an intervention by the Curtea Constituțională (Constitutional Court) in the course of justice, as it follows from Decision No 658/2018, is compatible with the rule of law, as referred to in Article 2 TEU, and with judicial independence, as guaranteed in Article 19 TEU and in Article 47 of the Charter.

    ...

    91) In the view of the referring court, the question thus arises whether Article 2 TEU, Article 19 TEU and Article 47 of the Charter preclude, in a situation such as that at issue in the main proceedings, the case-law of the Înalta Curte de Casaţie şi Justiţie (High Court of Cassation and Justice) from being reviewed and sanctioned by an intervention of the Curtea Constituțională (Constitutional Court). The referring court is of the opinion that an arbitrary intervention by the Curtea Constituțională (Constitutional Court), in the form of a review of the legality of the activity of the Înalta Curte de Casaţie şi Justiţie (High Court of Cassation and Justice), which replaces lawful judicial procedures, such as administrative proceedings or procedural objections raised in legal actions, may have a negative impact on judicial independence and on the very foundations of the rule of law, as referred to in Article 2 TEU, since the Curtea Constituțională (Constitutional Court) is not part of the judicial system and is not afforded powers of adjudication.

    92) In those circumstances, the Înalta Curte de Casaţie şi Justiţie (High Court of Cassation and Justice) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

    ‘Must Article 2 [TEU], Article 19(1) [TEU] and Article 47 of the [Charter] be interpreted as precluding the intervention of a constitutional court (a body which is not, under national law, a judicial institution) as regards the way in which a supreme court has interpreted and applied infra-constitutional legislation in the activity of establishing panels hearing cases?’

    ...

    99) According to the referring court, just like in Case C‑357/19, Eurobox Promotion and Others, the question also arises whether the principle of the rule of law enshrined in Article 2 TEU, as interpreted in the light of Article 47 of the Charter, precludes the course of justice being affected by an intervention such as that which follows from Decision No 417/2009. By that decision, the Curtea Constituțională (Constitutional Court) introduced, despite lacking jurisdiction, binding measures that entail the initiation of retrials on account of the alleged lack of specialisation in corruption offences of the panels of the Criminal Chamber of the Înalta Curte de Casaţie şi Justiţie (High Court of Cassation and Justice), even though all judges of that criminal chamber satisfy that condition of specialisation by virtue of their very capacity as judges of that court.

    100) In the second place, it is necessary, in the light of the case-law of the Court and of the significance of the principle of legality, to clarify the meaning of the concept of a ‘tribunal previously established by law’ contained in the second paragraph of Article 47 of the Charter, in order to determine whether that provision precludes the interpretation provided by the Curtea Constituțională (Constitutional Court) concerning the unlawful nature of the court’s composition.

    ...

    103) It is in those circumstances that the Înalta Curte de Casaţie şi Justiţie (High Court of Cassation and Justice) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

    1. 'Must Article 19(1) [TEU], Article 325(1) [TFEU], Article 58 of Directive [2015/849] [and] Article 4 of Directive [2017/1371] be interpreted as precluding the adoption of a decision by a body outside the judicial system, the [Curtea Constituțională (Constitutional Court)], which adjudicates on a procedural objection alleging that the composition of the panel seised of the case is unlawful, in the light of the principle that the judges of the Înalta Curte de Casaţie şi Justiţie (High Court of Cassation and Justice …) must be specialised (not provided for in the Romanian Constitution), and which obliges a judicial body to refer cases which are at the (full-merits) appeal stage for re-examination within the first procedural cycle before the same court?
    2. Must Article 2 [TEU] and [the second paragraph of Article 47] of the [Charter] be interpreted as precluding a body outside the judicial system from declaring unlawful the composition of the panel seised of the case of a chamber of the supreme court (panel composed of judges in office who, at the time of their promotion, satisfied, inter alia, the specialisation requirement laid down for promotion to the criminal chamber of the supreme court)? 
    3. Must the principle of the primacy of European Union law be interpreted as permitting a national court to disapply a decision of the constitutional court which interprets a rule of lower ranking than the Constitution, concerning the organisation of the Înalta Curte de Casaţie şi Justiţie (High Court of Cassation and Justice), contained in domestic legislation on the prevention, detection and punishment of offences of corruption, a rule which has been consistently interpreted in the same way, for 16 years, by a court?
    4. On a proper interpretation of Article 47 of the [Charter][,] [d]oes the principle of unfettered access to justice encompass the specialisation of judges and the establishment of specialist panels in a supreme court?’

    ...

    108) The referring court raises the issue of the compatibility of that decision with Article 2 TEU, Article 19(1) TEU, Article 325(1) TFEU, Article 47 of the Charter and Article 4 of Directive 2017/1371. With regard, in particular, to Article 325 TFEU, the referring court puts forward, in essence, the same grounds as those stated in Case C‑811/19. That court adds that, in the case in the main proceedings, the judicial proceedings have been under way for around four years and that, as a result of the application of Decision No 685/2018, the case has reached the stage of proceedings to re-examine the appeal. The application of Decision No 417/2019 also has the effect of reopening proceedings on the merits of the case at first instance, with the result that the same trial is being held twice at first instance and three times on appeal.

    ...

    111) It is in those circumstances that the Înalta Curte de Casaţie şi Justiţie (High Court of Cassation and Justice) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

    1. 'Must Article 19(1) [TEU], Article 325(1) [TFEU] and Article 4 of Directive [2017/1371], adopted pursuant to Article 83(2) [TFEU], be interpreted as precluding the adoption of a decision by a body outside the judicial system, the [Curtea Constituțională (Constitutional Court)], which requires re-examination of corruption cases decided within a specific period, and which are at the appeal stage, on grounds of failure to establish, within the supreme court, panels seised of the cases which specialise in that field, also recognising the speciality of the judges of which they were composed?
    2. Must Article 2 [TEU] and [the second paragraph of] Article 47 of the [Charter] be interpreted as precluding a body outside the judicial system from declaring unlawful the composition of the panel seised of the case of a chamber of the supreme court (panel composed of judges in office who, at the time of their promotion, satisfied, inter alia, the specialisation requirement laid down for promotion to the supreme court)? 
    3. Must the primacy of Europe Union law be interpreted as permitting a national court to disapply a decision of the constitutional court delivered in a case relating to a constitutional dispute, which is binding under national law?’

    ...

    123) In that regard, it should be recalled that the right to be heard, enshrined in Article 47 of the Charter, does not impose an absolute obligation to hold a public hearing in all proceedings. That is true, inter alia, where the case does not raise any questions of fact or of law that cannot be adequately resolved on the basis of the documents in the file and the written observations of the parties (see, to that effect, judgment of 26 July 2017, Sacko, C‑348/16, EU:C:2017:591, paragraph 40 and the case-law cited).

    ...

    125) In the light of the foregoing, the Court could decide, in accordance with Article 76(2) and (3) of the Rules of Procedure, without infringing the requirements under Article 47 of the Charter, not to hold a hearing in the present cases. Moreover, as has been stated in paragraph 121 of this judgment, the Court put questions for a written response to the parties and to the interested parties which submitted observations, thus allowing them to bring additional information to the attention of the Court, an option which PM, amongst others, exercised.

    ...

    132) In that regard, it must be stated that the requests for a preliminary ruling do concern the interpretation of EU law, whether provisions of primary law, inter alia Article 2 TEU and the second subparagraph of Article 19(1) TEU, Article 325 TFEU and Article 47 of the Charter, or provisions of secondary law, in particular Decision 2006/928. Those requests also relate to a convention drawn up on the basis of Article K.3 of the Treaty on European Union that the Court is competent to interpret, namely the PFI Convention.

    ...

    142) The Judicial Inspection contests the admissibility of the request for a preliminary ruling on the ground that Article 2 TEU, Article 19 TEU and Article 47 of the Charter, the interpretation of which is sought by the referring court, do not apply to the case in the main proceedings.

    ...

    144) In addition, the referring court is a judicial body capable of ruling, as a court, on questions relating to the application or the interpretation of EU law and, therefore, falling within areas covered by EU law. In the present case, the second subparagraph of Article 19(1) TEU is thus intended to apply in respect of the referring court, which is required to ensure, in accordance with that provision, that the disciplinary regime applicable to judges of the national courts which come within the national judicial system in the fields covered by EU law observes the principle of the independence of judges, inter alia by guaranteeing that decisions issued in the context of disciplinary proceedings initiated in respect of judges of those courts are reviewed by a body which itself meets the requirements inherent in effective judicial protection, including the requirement of independence (judgment of 15 July 2021, Commission v Poland (Disciplinary regime for judges), C‑791/19, EU:C:2021:596, paragraph 80 and the case-law cited). In interpreting that provision, account must be taken of both Article 2 TEU and Article 47 of the Charter.

    ...

    146) With regard to Case C‑357/19, PM, RO and TQ as well as the Polish Government plead that the request for a preliminary ruling is inadmissible. First, PM and RO observe that their personal legal situation has no connection with offences affecting the European Union’s financial interests and, therefore, with Article 325(1) TFEU. Next, RO and TQ state that, in finding the extraordinary appeals admissible, the referring court has already ruled on the question of the applicability of Decision No 685/2018 of the Curtea Constituțională (Constitutional Court), such that, in their view, no further clarification of that question is required for the purposes of the outcome of the case in the main proceedings. Finally, the Polish Government is of the view that Case C‑357/19 falls outside the scope of EU law and, therefore, the scope of the Charter.

    147) As for Case C‑811/19, the Polish Government likewise contests the admissibility of the request for a preliminary ruling, arguing that that case also falls outside the scope of EU law and that, therefore, the Charter is not to be applied.

    ...

    151) In addition, taking the view that the case-law of the Curtea Constituțională (Constitutional Court) established in Decisions Nos 685/2018 and 417/2019 could undermine judicial independence and hamper the fight against corruption, the referring court in Cases C‑357/19, C‑811/19 and C‑840/19 asks the Court about the interpretation, inter alia, of Article 325(1) TFEU, Article 19(1) TEU and the principle of primacy of EU law in order to be able to determine whether it is required to apply or, on the contrary, to disapply those decisions. According to the information provided by the referring court, if those decisions are applicable the action will have to be upheld or proceedings on the merits of the case reopened. In those circumstances, the view cannot be taken that the interpretation sought, namely that of Article 325 TFEU, Article 19(1) TEU and Article 47 of the Charter, to which the requests for a preliminary ruling refer, appears manifestly unrelated to the examination of the actions in the main proceedings.

    ...

    204) That being the case, since the criminal proceedings at issue in the main proceedings amount to an implementation of Article 325(1) TFEU and/or of Decision 2006/928 and, therefore, of EU law, within the meaning of Article 51(1) of the Charter, that referring court must also satisfy itself that the fundamental rights guaranteed by the Charter to the persons concerned in the main proceedings, in particular those guaranteed in Article 47 of the Charter, are respected. In criminal law, respect for those rights must be guaranteed not only during the stage of the preliminary investigation, from the moment when the person concerned becomes an accused, but also during the criminal proceedings (see, to that effect, judgments of 5 June 2018, Kolev and Others, C‑612/15, EU:C:2018:392, paragraphs 68 and 71 and the case-law cited, and of 17 January 2019, Dzivev and Others, C‑310/16, EU:C:2019:30, paragraph 33) and in the enforcement of the penalties.

    205) In that regard, it must be recalled that the first sentence of the second paragraph of Article 47 of the Charter enshrines the entitlement of everyone to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. By requiring that the tribunal be ‘previously established by law’, that provision seeks to ensure that the organisation of the judicial system is regulated by law emanating from the legislature in compliance with the rules governing its jurisdiction, with a view to preventing such organisation being left to the discretion of the executive. That requirement covers not only the legal basis for the very existence of a tribunal, but also any other provision of domestic law which, if breached, would render the participation of one or more judges in the examination of a case irregular, such as the provisions governing the composition of the panel hearing the case (see, by analogy, by reference to the case-law of the European Court of Human Rights on Article 6 ECHR, judgments of 26 March 2020, Review Simpson v Council and HG v Commission, C‑542/18 RX‑II and C‑543/18 RX‑II, EU:C:2020:232, paragraph 73, and of 6 October 2021, W.Ż. (Chamber of Extraordinary Control and Public Affairs of the Supreme Court – Appointment), C‑487/19, EU:C:2021:798, paragraph 129).

    206) It should be observed that an irregularity committed during the composition of panels entails an infringement of the first sentence of the second paragraph of Article 47 of the Charter, particularly when that irregularity is of such a kind and of such gravity as to create a real risk that other branches of the State, in particular the executive, could exercise undue discretion undermining the integrity of the outcome of the panel composition process and thus give rise to a reasonable doubt in the minds of individuals as to the independence and the impartiality of the judge or judges concerned, which is the case when what is at issue are fundamental rules forming an integral part of the establishment and functioning of that judicial system (see, to that effect, judgments of 26 March 2020, Review Simpson v Council and HG v Commission, C‑542/18 RX‑II and C‑543/18 RX‑II, EU:C:2020:232, paragraph 75, and of 6 October 2021, W.Ż. (Chamber of Extraordinary Control and Public Affairs of the Supreme Court – Appointment), C‑487/19, EU:C:2021:798, paragraph 130).

    ...

    209) Moreover, Cases C‑357/19, C‑840/19 and C‑811/19 must be distinguished from that which gave rise to the judgment of 5 December 2017, M.A.S. and M.B. (C‑42/17, EU:C:2017:936), in which the Court held that, if the national court comes to the view that the obligation to disapply the national provisions at issue conflicts with the principle that offences and penalties must be defined by law, as enshrined in Article 49 of the Charter, it is not obliged to comply with that obligation (see, to that effect, judgment of 5 December 2017, M.A.S. and M.B., C‑42/17, EU:C:2017:936, paragraph 61). By contrast, the requirements arising from the first sentence of the second paragraph of Article 47 of the Charter do not preclude the non-application of the case-law established in Decisions Nos 685/2018 and 417/2019 in Cases C‑357/19, C‑840/19 and C‑811/19.

    ...

    211) In that regard, it need simply be stated that, even assuming that those requirements constitute such a national standard of protection, the fact remains that, when a court of a Member State is called upon to review the compatibility with fundamental rights of a national provision or measure which, in a situation in which the action of the Member States is not entirely determined by EU law, implements EU law for the purposes of Article 51(1) of the Charter, Article 53 of the Charter confirms that national authorities and courts are free to apply national standards of protection of fundamental rights, provided that the level of protection provided for by the Charter, as interpreted by the Court, and the primacy, unity and effectiveness of EU law are not thereby compromised (judgments of 26 February 2013, Åkerberg Fransson, C‑617/10, EU:C:2013:105, paragraph 29; of 26 February 2013, Melloni, C‑399/11, EU:C:2013:107, paragraph 60; and of 29 July 2019, Pelham and Others, C‑476/17, EU:C:2019:624, paragraph 80).

    ...

    213) In the light of the foregoing considerations, the first question in Cases C‑357/19 and C‑840/19 and the first and fourth questions in Case C‑811/19 must be answered to the effect that Article 325(1) TFEU, read in conjunction with Article 2 of the PFI Convention, and Decision 2006/298 are to be interpreted as precluding national rules or a national practice under which judgments in matters of corruption and VAT fraud, which were not delivered, at first instance, by panels specialised in such matters or, on appeal, by panels all the members of which were selected by drawing lots, are rendered absolutely null and void, such that the cases of corruption and VAT fraud concerned must, as the case may be further to an extraordinary appeal against final judgments, be re-examined at first and/or second instance, where the application of those national rules or that national practice is capable of giving rise to a systemic risk of acts constituting serious fraud affecting the European Union’s financial interests or corruption in general going unpunished. The obligation to ensure that such offences are subject to criminal penalties that are effective and act as a deterrent does not exempt the referring court from verifying the necessary observance of the fundamental rights guaranteed in Article 47 of the Charter, but does not allow that court to apply a national standard of protection of fundamental rights entailing such a systemic risk of impunity.

    214) By the second and third questions in Cases C‑357/19, C‑379/19, C‑811/19 and C‑840/19 and the single question in Case C‑547/19, which should be examined jointly, the referring courts ask, in essence, whether, first, Article 2 TEU and the second subparagraph of Article 19(1) TEU, Article 47 of the Charter and Decision 2006/928, and, second, the principle of primacy of EU law in conjunction with those provisions and Article 325(1) TFEU are to be interpreted as precluding national rules or a national practice under which the ordinary courts are bound by the decisions of the national constitutional court and cannot, by virtue of that fact and without committing a disciplinary offence, disapply, on their own authority, the case-law established in those decisions, even though they are of the view, in the light of a judgment of the Court, that that case-law is contrary to the abovementioned provisions of EU law.

    215) The referring courts are of the view that the case-law of the Curtea Constituțională (Constitutional Court) established in the decisions at issue in the main proceedings is liable to call into question their independence and is, therefore, incompatible with EU law, in particular with the guarantees provided for in Article 2 TEU and the second subparagraph of Article 19(1) TEU as well as in Article 47 of the Charter and with Decision 2006/928. In that regard, they consider that the Curtea Constituțională (Constitutional Court), which is not part of the Romanian judicial system, exceeded its powers by delivering the decisions at issue in the main proceedings and encroached upon the jurisdiction of the ordinary courts, namely to interpret and apply infra-constitutional legislation. The referring courts further state that a failure to comply with the decisions of the Curtea Constituțională (Constitutional Court) constitutes, in Romanian law, a disciplinary offence, and they therefore ask, in essence, whether they can, under EU law, disapply those decisions at issue in the main proceedings without fear of being subject to disciplinary proceedings.

    ...

    219) The very existence of effective judicial review designed to ensure compliance with EU law is of the essence of the rule of law. In that regard, as provided for in the second subparagraph of Article 19(1) TEU, it is for the Member States to establish a system of legal remedies and procedures ensuring for individuals compliance with their right to effective judicial protection in the fields covered by EU law. The principle of the effective judicial protection of individuals’ rights under EU law, referred to in the second subparagraph of Article 19(1) TEU, is a general principle of EU law stemming from the constitutional traditions common to the Member States, which has been enshrined in Articles 6 and 13 ECHR and is now reaffirmed in Article 47 of the Charter (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, paragraphs 189 and 190 and the case-law cited).

    220) It follows 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 thus come within its judicial system in the fields covered by EU law, meet the requirements of effective judicial protection, it being clarified that that provision refers to ‘fields covered by Union law’, irrespective of the circumstances in which the Member States are implementing EU law within the meaning of Article 51(1) of the Charter (see, to that effect, judgments of 5 November 2019, Commission v Poland (Independence of ordinary courts), C‑192/18, EU:C:2019:924, paragraphs 101 and 103 and the case-law cited; of 20 April 2021, Repubblika, C‑896/19, EU:C:2021:311, paragraphs 36 and 37; and 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, paragraphs 191 and 192).

    221) To ensure that bodies that may be called upon to rule on questions concerning the application or interpretation of EU law are in a position to ensure the effective judicial protection required under the second subparagraph of Article 19(1) TEU, maintaining their independence is essential, as confirmed by the second paragraph of Article 47 of the Charter, which refers to access to an ‘independent’ tribunal as one of the requirements linked to the fundamental right to an effective remedy (judgments of 2 May 2021, A.B. and Others (Appointment of judges to the Supreme Court – Actions), C‑824/18, EU:C:2021:153, paragraph 115 and the case-law cited, and 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, paragraph 194).

    ...

    243) In those circumstances, and as regards cases in which the national rules or the national practice at issue in the main proceedings constitute an implementation of EU law within the meaning of Article 51(1) of the Charter, a separate examination of Article 47 of the Charter, which could only substantiate the finding already set out in the preceding paragraph, appears unnecessary for the purpose of answering the questions put by the referring courts and for the outcome of the proceedings brought before them.

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    247) In paragraph 21 of its Opinion 1/91 (First Opinion of the EEA Agreement) of 14 December 1991 (EU:C:1991:490), the Court thus found that the EEC Treaty, albeit concluded in the form of an international agreement, nonetheless constitutes the constitutional charter of a Community based on the rule of law, and that the essential characteristics of the Community legal order thus established are in particular its primacy over the law of the Member States and the direct effect of a whole series of provisions which are applicable to their nationals and to the Member States themselves.