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• art. 2 and art. 19 para. (1) second paragraph TEU, 
• Commission Decision 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 (notified under document number C(2006) 6569) (2006/928/EC)
• Charter of Fundamental Rights of the European Union - Articles 47 and 48

• Ninn-Hansen v. Denmark (dec.) - 28972/95
• Findlay v. The United Kingdom, 110/1995/616/706, 25.02.1997
• Parlov-Tkalčić v. Croatia - 24810/06. Judgment 22.12.2009; 
• Case No. 42095/98, Daktaras v Lithuania, 10 October 2000; 
• Moiseyev v. Russia - 62936/00. Judgment 9.10.2008 [Section I]

rule of law, independence of the judiciary

incidence of the Judgement of the Court (Grand Chamber) 18 May 2021

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The national judge of rights and freedoms finds that from the perspective of European Union law, the decision of 18.05.2021 is binding for all national courts, the Court interpreting Article 2 and Article 19 paragraph (1) second paragraph of the TEU, as well as Decision 2006/928. Therefore, whenever they solve cases where criminal proceedings were carried out by the prosecutors of the SIIJ, the national courts are obliged to analyze whether the cumulative conditions mentioned by the Court in point 5 of the binding part of its judgement are met. Second, the national judge of rights and freedoms finds that the provisions of art. 148 para. 2 and 4 of the Romanian Constitution itself expressly provide for the competence of the national courts to apply Community law with priority over the contrary provisions of national law, no exception being possible. This point is confirmed by the Romanian Constitutional Court landmark caselaw (e.g. Decision no. 148/2003).

The national judge of rights and freedom notes that no constitutional provision or internal law gives Romanian judges the power, in the event of the establishment within the Public Ministry of a specialized section that has the exclusive competence to investigate crimes committed by judges and prosecutors,  to analyze whether the establishment of the specialized section is justified by objective and verifiable imperatives related to the good administration of justice and if it is accompanied by specific guarantees that allow, on the one hand, to remove any risk that this section is used as an instrument of political control of the activity of the respective judges and prosecutors likely to affect their independence and, on the other hand, to ensure that the respectiv jurisdiction can be exercised over the latter in full compliance with the requirements arising from Articles 47 and 48 of the Charter of Fundamental Rights of the European Union.

The reference to the standards enshrined by Articles 47 and 48 of the Charter of Fundamental Rights of the European Union is reinforced by the reference to Article 6 para 1 of the European Convention on Human Rights and to the relevant caselaw of the European Court of Human Rights in respect with the European autonomous concept of "independence".

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Consistent interpretation with the EU law (here, also the Judgment of the Court (Grand Chamber) 18 May 2021) of the national constitutional provisions offered by the national court (national judge of rights and freedoms); disapplication of national law in favour of EU law; the national judge finds out that the standard of independence of judges established by European law, as interpreted by the Decision of 18.05.2021 of the CJEU, is superior to the standard of independence of judges provided by the Romanian Constitution by art. 124 para. 3, so that pursuant to Art. 20 of the Romanian Constitution the Romanian courts have the obligation to apply the higher standard.

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• European Commission for Democracy Through Law (Venice Commission) - Opinion No. 924 / 2018 on Amendments to Law No. 303/2004 on the Statute of Judges and Prosecutors, Law No. 304/2004 on Judicial Organization, and Law No. 317/2004 on the Superior Council for Magistracy, adopted by the Venice Commission at its 116th Plenary Session (Venice, 19-20 October 2018), 
• European Commission for Democracy Through Law (Venice Commission) - Opinion no. No. 950 / 2019 on Emergency Ordinances GEO No. 7 and GEO No. 12 amending the Laws of Justice, adopted by the Venice Commission at its 119th Plenary Session (Venice, 21-22 June 2019)
• GRECO Ad hoc Report on Romania 23.03.2018 and 
• GRECO Follow-up Report to the Ad hoc Report on Romania 21.06.2019.
• GRECO Second Interim Compliance Report Including Follow-up to the Ad Hoc (Rule 34) Report on Romania 25.03.2021

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The criteria provided by the Judgment of the Court (Grand Chamber) 18 May 2021 were in general not verified by the national ordinary courts in the relevant cases pending before them. The national judge of right and freedoms who pronounced this judgement, Andrei Costin Stancu, was later on accused of having breached the rules on the magistrates' status and disciplinary sanctioned by the Judicial Inspection. However, the Superior Council of the Magistracy rejected the disciplinary action of the Judicial Inspection and would not apply the provisions of Art.99 lit.t) of the Law no.303/2004 on the statute of judges and prosecutors.

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Raluca Bercea, National Association of the Romanian Bars (UNBR)