rule of law, independence of the judiciary

Court of Justice of the European Union / Curtea Constituțională a României

N/A

In the context of the conflicting Judgments mentioned at point 3.7, the case deals with the Romanian ordinary courts' dilemma whether to comply with the case-law of the national Constitutional Court, or with that of the Court of Justice, when deciding whether they have jurisdiction to examine the conformity with EU law of national ordinary legislation affecting the independence of the judiciary. It also questions the compatibility with EU law of national legislation allowing disciplinary penalties to be imposed on a judge who has examined the conformity with EU law of a national provision in breach of a decision of the national constitutional court.

The referring court asked the Court of Justice for the reference for a preliminary ruling to be determined pursuant to the urgent preliminary-ruling procedure or, in the alternative, pursuant to the expedited or accelerated procedure, arguing that the case concerned a serious undermining of the independence of the Romanian courts and given the uncertainties associated with the national legislation at issue in the main proceedings, likely to have an impact on the functioning of the system of judicial cooperation constituted by the preliminary-ruling mechanism. The President of the Court granted the request that the reference be determined pursuant to the expedited procedure, considering that, in view of the fundamental importance for Romania and the EU legal order of the questions relating to the relationships between the ordinary courts and the constitutional court of a Member State, as well as to the principle of judicial independence and the primacy of EU law, raised by the case, an answer from the Court within a short time was likely to remove the serious uncertainties faced by the referring court.

Article 148(2) and (4) of the Constituția României (Romanian Constitution), Article 488-1, Article Article 488-6(1) ( of the Code of Criminal Procedure Code, Article 99(ș) of the Legea nr. 303/2004 privind statutul judecătorilor și procurorilor (Law No 303/2004 on the rules governing judges and prosecutors) of 28 June 2004 (Monitorul Oficial al României, Part I, No 826 of 13 September 2005)

RS was the subject of criminal proceedings, at the end of which he was convicted. His wife lodged a criminal complaint alleging offences of abuse of process and abuse of office committed in the course of the abovementioned criminal proceedings by a prosecutor and two judges. Since that complaint also concerned the judiciary, its examination fell within the competence of the Secția pentru Investigarea Infracțiunilor din Justiție (Section for the investigation of offences committed within the judicial system; ‘the SIIJ’), established within the Parchetul de pe lângă Înalta Curte de Casaţie şi Justiţie (Public Prosecutor’s Office at the High Court of Cassation and Justice, Romania). A prosecutor of the SIIJ instituted criminal proceedings against the judges referred to in RS wife’s complaint. Later on, RS brought an action before the referring court, seeking to challenge the excessive duration of the criminal proceedings. The referring court considered that, in order to rule on that action, it had to examine the compatibility with EU law of national legislation which established the SIIJ. Since the case-law of CJEU and of the Romanian Constitutional Court differed on that matter and the disapplication of the latter’s decisions by the national judges triggered disciplinary sanctions, the ordinary court referred several questions to the CJEU.

According to the Grand Chamber, the second subparagraph of Article 19(1) TEU, read in conjunction with Article 2 TEU and Article 47 of the Charter, must be interpreted as precluding national rules or a national practice under which the ordinary courts of a Member State have no jurisdiction to examine the compatibility with EU law of national legislation which the constitutional court of that Member State has found to be consistent with a national constitutional provision that requires compliance with the principle of the primacy of EU law. The same provisions of the Treaty preclude national rules or a national practice under which a national judge may incur disciplinary liability on the ground that he or she has applied EU law, as interpreted by the Court, thereby departing from case-law of the constitutional court of the Member State concerned that is incompatible with the principle of the primacy of EU law. The Grand Chamber arguments take into account the essential characteristics of the EU legal order and mainly adress the obligation of the Member States, under Article 19 TEU, to preserve the independence of the bodies that, at the national level, interpret and inforce EU law. In particvular, as regards the relationships between the ordinary courts and the constitutional court of a Member State, the Court notes that although the organisation of justice in the Member States, including the establishment, composition and functioning of a constitutional court, falls within the competence of those Member States, when exercising that competence, the Member States are required to comply with their obligations deriving from EU law.

Although Article 47 of the Charter was relied on by the referring court, the CJEU considered that it was not applicable to the case in the main proceedings. The Court pointed out that the recognition of the right to an effective remedy in a given case presupposed that the person invoking that right was either relying on rights or freedoms guaranteed by EU law or was the subject of proceedings constituting an implementation of EU law, within the meaning of Article 51(1) of the Charter, which was not the case in the main proceeding. Also, the choice made by the Court not to rely on the Charter but rather on the principle dispositions of TEU indicates that there cannot be a variable geometry on judicial independence in Europe, all Member States being bound by the same uniform EU rule of law framework.

strategic use of the preliminary reference mechanism by the national ordinary courts in order to disapply the caselaw of the national constitutional court that is in breach of EU law; consistent interpretation with the EU law of the national constitutional provisions by the national referring court, as opposed to the interpretation provided by the constitutional court; disapplication of national law in favour of the EU law by the national referring court; preserving the efficiency of the judicial cooperation mechanism through art. 267 TFEU

The national referring court pointed out that the conflicting perspectives of the CJEU and respectively the Romanian Constitutional Court on the judicial independence criteria when put into practic were likely to undermine the coherent application of EU law horizontally at the national level (i.e. by different national ordinary courts).

6.3.1.The referring court refers more broadly to the settled case-law of the Court of Justice according to which any national court has the obligation to disapply, in the case before it, any provision of national law which is contrary to a provision of EU law having direct effect, and to the binding nature of preliminary rulings given by the Court. 6.3.2. The referring court also refers to the Decision no 390/2021 of 8 June 2021, by the Curtea Constituțională (Constitutional Court) rejected as unfounded a plea of unconstitutionality raised in respect of several provisions of the legislation governing the SIIJ. In that judgment, the Curtea Constituțională (Constitutional Court) stated, inter alia, first of all, that, in so far as the primacy accorded to EU law is limited in the Romanian legal order by the requirement of respect for national constitutional identity, it was incumbent upon it to ensure the supremacy of the Romanian Constitution on Romanian territory. Consequently, that court considers that although an ordinary court has jurisdiction to examine the conformity with EU law of a provision of national legislation, such an ordinary court has no jurisdiction to examine the conformity with EU law of a national provision which has been found to comply with Article 148 of the Romanian Constitution by the Curtea Constituțională (Constitutional Court). In addition, according to the Curtea Constituțională (Constitutional Court), point 7 of the operative part 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), is unfounded in the light of the Romanian Constitution. While Article 148 of that constitution enshrines the primacy of EU law over conflicting provisions of national legislation, the reports drawn up pursuant to Decision 2006/928, by reason of their content and effects, do not constitute rules of EU law which a national court should apply as a matter of priority, by disapplying the conflicting national rule. Lastly, the Curtea Constituțională (Constitutional Court) stated in that same judgment No 390/2021 of 8 June 2021 that if some courts were to disapply, of their own motion, national provisions which they considered to be contrary to EU law while others were to apply the same provisions, considering them to be consistent with EU law, legal certainty would be greatly undermined, which would lead to the principle of the rule of law being infringed.

The referring court used the preliminary ruling mechanism as a strategic litigation tool, in order to circumvent a decision of the national Constitutional Court by which the latter prohibited the control of compatibility of the national legislation with the EU law once the national legislation had been declared constitutional, under disciplinary sanctions. Given the potential systemic effect of such decision, the referral made by the national ordinary court serves two purposes: preserving the independence of the judiciary and granting primacy of EU law at the national level.

The RS Judgment is for the moment too recent for an accurate evaluation of its impact within the national courts practice. However, it appears to have supported a more friendly attitude towards EU law from the part of the national Constitutional Court and supported the government through the Minister of Justice in the successful attempt to determine the change of the national relevant legislation (see points 7.1 and 7.3). The RS Judgment also functions as an escort argument supporting the national courts to apply the CJEU (Grand Chamber) Judgment in Joined Cases C‑83/19, C‑127/19, C‑195/19, C‑291/19, C‑355/19 and C‑397/19, Asociatia Forumul Judecătorilor din România (AFJR) of 18 May 2021 (as described at point 7.2). Similarly and predictibly, the RS Judgment will also support the national ordinary courts when applying the subsequent Judgment of the Court (Grand Chamber), in Case C‑107/23, PPU [Lin] of 24 July 2023, ECLI:EU:C:2023:606.
In its Decision no.520/2022 the Romanian Constitutional Court rejected the exception of unconstitutionality raised by the Romanian Ombudsman concerning the modification of the legal provision imposing sanctions for the judges who disobey the decisions of the national Constitutional Court. Within that procedure, the Government presented its observations and relied heavily on the EU relevant caselaw concerning Romania, also mentioning the RS Judgement. Contrary to this line of arguments, a separate opinion presented by one of the constitutional judges considered the RS Judgment to be irrelevant, as only covering exceptional situations. https://www.ccr.ro/wp-content/uploads/2022/11/Decizie_520_2022.pdf

Judgment of the Court (Grand Chamber) in Joined Cases C‑83/19, C‑127/19, C‑195/19, C‑291/19, C‑355/19 and C‑397/19, Asociatia Forumul Judecătorilor din România (AFJR) of 18 May 2021, ECLI:EU:C:2021:393; Judgment of the Court (First Chamber), C-817/21, R.I. v Inspecţia Judiciară and N.L., of 11 May 2023, ECLI:EU:C:2023:391; Judgment of the Court (Grand Chamber), in Case C‑107/23, PPU [Lin] of 24 July 2023, ECLI:EU:C:2023:606.

https://curia.europa.eu/juris/document/document.jsf?text=&docid=254384&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=3173218; https://www.ccr.ro/wp-content/uploads/2021/06/Decizie_390_2021.pdf