Article 47 - Right to an effective remedy and to a fair trial
Article 48 - Presumption of innocence and right of defence
Key facts of the case:
Requests for a preliminary ruling from theTribunalul Olt and Others. Reference for a preliminary ruling – Treaty of Accession of the Republic of Bulgaria and Romania to the European Union – Act concerning the conditions of accession to the European Union of the Republic of Bulgaria and Romania – Articles 37 and 38 – Appropriate measures – Mechanism for cooperation and verification of progress in Romania to address specific benchmarks in the areas of judicial reform and the fight against corruption – Decision 2006/928/EC – Legal nature and effects of the cooperation and verification mechanism and of the reports established by the Commission on the basis of that mechanism – Rule of law – Judicial independence – Second subparagraph of Article 19(1) TEU – Article 47 of the Charter of Fundamental Rights of the European Union – Laws and government emergency ordinances adopted in Romania in the course of 2018 and 2019 concerning the organisation of the judicial system and the liability of judges – Interim appointment to management positions of the Judicial Inspectorate – Establishment of a section within the Public Prosecutor’s Office for the investigation of offences committed within the judicial system – Financial liability of the State and personal liability of judges in the event of judicial error.
Outcome of the case:
On those grounds, the Court (Grand Chamber) hereby rules:
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, and the reports drawn up by the Commission on the basis of that decision, constitute acts of an EU institution, which are amenable to interpretation by the Court under Article 267 TFEU.
2) Articles 2, 37 and 38 of the Act concerning the conditions of accession of the Republic of Bulgaria and Romania and the adjustments to the Treaties on which the European Union is founded, read in conjunction with Articles 2 and 49 TEU, must be interpreted as meaning that as regards its legal nature, content and temporal effects, Decision 2006/928 falls within the scope of the Treaty between the Member States of the European Union and the Republic of Bulgaria and Romania, concerning the accession of the Republic of Bulgaria and Romania to the European Union. That decision is binding in its entirety on Romania, as long as it has not been repealed. The benchmarks in the Annex to Decision 2006/928 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, in the sense that Romania is required to take the appropriate measures for the purposes of meeting 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.
3) The legislation governing the organisation of justice in Romania, such as that relating to the interim appointment to the management positions of the Judicial Inspectorate and that relating to the establishment of a section of the Public Prosecutor’s Office for the investigation of offences committed within the judicial system, falls within the scope of Decision 2006/928, with the result that it must comply with the requirements arising from EU law and, in particular, from the value of the rule of law, set out in Article 2 TEU.
4) Article 2 and the second subparagraph of Article 19(1) TEU and Decision 2006/928 must be interpreted as precluding national legislation adopted by the government of a Member State, which allows that government to make interim appointments to the management positions of the judicial body responsible for conducting disciplinary investigations and bringing disciplinary proceedings against judges and prosecutors, without following the ordinary appointment procedure laid down by national law, where that legislation is such as to give rise to reasonable doubts that the powers and functions of that body may be used as an instrument to exert pressure on, or political control over, the activity of those judges and prosecutors.
5) Article 2 and the second subparagraph of Article 19(1) TEU and Decision 2006/928 must be interpreted as precluding national legislation providing for the creation of a specialised section of the Public Prosecutor’s Office with exclusive competence to conduct investigations into offences committed by judges and prosecutors, where the creation of such a section
6) Article 2 and the second subparagraph of Article 19(1) TEU must be interpreted as not precluding national legislation governing the financial liability of the State and the personal liability of judges for the damage caused by a judicial error, which defines the concept of ‘judicial error’ in general and abstract terms. By contrast, those same provisions must be interpreted as precluding such legislation where it provides that a finding of judicial error, made in proceedings to establish the State’s financial liability and without the judge concerned having been heard, is binding in the subsequent proceedings relating to an action for indemnity to establish the personal liability of that judge, and where that legislation does not, in general, provide the necessary guarantees to prevent such an action for indemnity being used as an instrument of pressure on judicial activity and to ensure that the rights of defence of the judge concerned are respected, so as to dispel any reasonable doubt, in the minds of individuals, as to the imperviousness of the judges to external factors liable to have an effect on their decisions and so as preclude a lack of appearance of independence or impartiality on the part of those judges likely to prejudice the trust which justice in a democratic society governed by the rule of law must inspire in those individuals.
7) The principle of the primacy of EU law must be interpreted as precluding legislation of a Member State having constitutional status, as interpreted by the constitutional court of that Member State, according to which a lower court is not permitted to disapply of its own motion a national provision falling within the scope of Decision 2006/928, which it considers, in the light of a judgment of the Court, to be contrary to that decision or to the second subparagraph of Article 19(1) TEU.
1) These requests for a preliminary ruling concern, in essence, the interpretation of Article 2, Article 4(3), Article 9 and the second subparagraph of Article 19(1) TEU, Article 67(1) and Article 267 TFEU, Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’) and 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).
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70) In those circumstances the Curtea de Apel Piteşti (Court of Appeal, Piteşti) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
90) In those circumstances the Curtea de Apel Brașov (Court of Appeal, Brașov) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
109) The Romanian Government, for its part, submits that the Court lacks jurisdiction to answer the fourth question referred in Case C‑83/19, the fourth and fifth questions referred in Case C‑127/19, the second question referred in Case C‑195/19, the fourth and fifth questions referred in Case C‑291/19, the third and fourth questions referred in Case C‑355/19 and the third to sixth questions referred in Case C‑397/19, in so far as those questions concern the interpretation of Article 2 and Article 4(3) TEU, Article 67 TFEU and Article 47 of the Charter. Whereas, in order to be applicable to the disputes in the main proceedings, those provisions would have required Romania to implement EU law, there is no EU act governing the measures at issue in the main proceedings. Only the second subparagraph of Article 19(1) TEU could, in the light of the case-law derived from the judgment of 27 February 2018, Associação Sindical dos Juízes Portugueses (C‑64/16, EU:C:2018:117), be of relevance to the issues raised by the referring courts in those questions. In any event, the questions relate to the organisation of justice, which is not an EU competence.
110) In that regard, it must be found that the requests for a preliminary ruling concern the interpretation of EU law, whether that be provisions of primary law, in this instance Article 2, Article 4(3), Article 9 and the second subparagraph of Article 19(1) TEU, Article 67 TFEU and Article 47 of the Charter, or provisions of secondary law, namely Decision 2006/928.
125) As regards, secondly, the Romanian Government’s objections, it is sufficient to note that the disputes in the main proceedings in Cases C‑127/19 and C‑355/19 concern the legality, respectively, of two decisions of the Supreme Council of the Judiciary and of an order of the Prosecutor General seeking to implement certain amendments arising from Law No 207/2018, the compatibility of which with EU law – and in particular with Decision 2006/928, Article 2, Article 4(3) and the second subparagraph of Article 19(1) TEU and Article 47 of the Charter – is challenged before the referring courts. Consequently, in the light of the particulars provided to that effect by those courts, it cannot be held that the questions referred in those cases manifestly bear no relation to the actual facts of the disputes in the main proceedings or their purpose.
129) It cannot, therefore, be held that the questions referred, in so far as they concern Decision 2006/928, Article 2, Article 4(3) and the second subparagraph of Article 19(1) TEU and Article 47 of the Charter, bear no relation to the actual facts of the disputes in the main proceedings or their purpose or that they concern a hypothetical problem.
190) In that regard, as provided for by 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 of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, and which is now reaffirmed by Article 47 of the Charter (judgment of 2 March 2021, A.B. and Others (Appointment of judges to the Supreme Court – Actions), C‑824/18, EU:C:2021:153, paragraphs 109 and 110 and the case-law cited).
192) As regards the material scope of the second subparagraph of Article 19(1) TEU, that provision refers to the ‘fields covered by Union law’, irrespective of whether the Member States are implementing Union law within the meaning of Article 51(1) of the Charter (judgment of 2 March 2021, A.B. and Others(Appointment of judges to the Supreme Court – Actions), C‑824/18, EU:C:2021:153, paragraph 111 and the case-law cited).
194) It should be recalled that, to ensure that bodies which 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 that provision, 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 (see, to that effect, judgment of 2 March 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).
198) As regards specifically the rules governing the disciplinary regime, the requirement of independence means that, in accordance with settled case-law, that regime must provide the necessary guarantees in order to prevent any risk of its being used as a system of political control of the content of judicial decisions. Rules which define, in particular, both conduct amounting to disciplinary offences and the penalties actually applicable, provide for the involvement of an independent body in accordance with a procedure which fully safeguards the rights enshrined in Articles 47 and 48 of the Charter, in particular the rights of the defence, and lay down the possibility of bringing legal proceedings challenging the disciplinary bodies’ decisions constitute a set of guarantees that are essential for safeguarding the independence of the judiciary (judgments of 25 July 2018, Minister for Justice and Equality (Deficiencies in the system of justice), C‑216/18 PPU, EU:C:2018:586 paragraph 67; of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C‑619/18, EU:C:2019:531, paragraph 77; and of 5 November 2019, Commission v Poland (Independence of ordinary courts), C‑192/18, EU:C:2019:924, paragraph 114).
209) The referring courts consider that the creation in Romania of such a section, namely the SIIJ, on which that exclusive competence is conferred, is likely to exert pressure on judges, incompatible with the guarantees provided for in Article 2 and the second subparagraph of Article 19(1) TEU and Article 47 of the Charter. In addition, the rules governing the powers and organisation of the SIIJ, and the detailed rules for its operation and the appointment and removal of prosecutors assigned to it reinforce that fear and are, moreover, likely to hinder the fight against corruption offences. Lastly, in the light of the limited number of prosecutor posts within the SIIJ, that section is not in a position to deal with the cases pending before it within a reasonable time.
213) Where a Member State lays down specific rules governing criminal proceedings against judges and prosecutors, such as the rules relating to the establishment of a special section of the Public Prosecutors’ Office with exclusive competence to conduct investigations into offences committed by judges and prosecutors, those rules must – in accordance with the requirement of independence, and in order to dispel any reasonable doubt in the minds of individuals such as that referred to in the preceding paragraph – be justified by objective and verifiable requirements relating to the sound administration of justice and must, like the rules on the disciplinary liability of judges and prosecutors, provide the necessary guarantees ensuring that those criminal proceedings cannot be used as a system of political control over the activity of those judges and prosecutors and fully safeguard the rights enshrined in Articles 47 and 48 of the Charter.
221) Thirdly, as regards the rights enshrined in Articles 47 and 48 of the Charter, it is important, in particular, that the rules governing the organisation and operation of a specialised section of the Public Prosecutor’s Office, such as the SIIJ, should be designed so as not to prevent the case of the judges and prosecutors concerned from being heard within a reasonable time.
223) In the light of the foregoing considerations, the answer to the fourth and fifth questions referred in Case C‑127/19, the second question referred in Case C‑195/19, the fourth and fifth questions referred in Case C‑291/19 and the third and fourth questions referred in Case C‑355/19 is that Article 2 and the second subparagraph of Article 19(1) TEU and Decision 2006/928 must be interpreted as precluding national legislation providing for the creation of a specialised section of the Public Prosecutor’s Office with exclusive competence to conduct investigations into offences committed by judges and prosecutors, where the creation of such a section
237) Similarly, it is important that the rights enshrined in Article 47 of 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.
