A Tale of Primacy

In its 18 May ruling Asociația „Forumul Judecătorilor din România”, the ECJ took a solid stance on the primacy of EU law by recognizing the binding nature of the Cooperation and Verification Mechanism established by the European Commission with respect to Romania in 2007. The judgment is a genuine guide to national courts on applying the primacy of EU law, especially as regards controversial issues such as the judicial independence and rule of law.

General Context

Romania has joined the EU on 1 January 2007. On the same day, the Commission’s Decision 2006/928/EC 13 December 2006  put in place a mechanism for cooperation and verification (hereinafter CVM) in order to assess the progress made by the new member state in the areas of judicial reform and fight against corruption based on a set of specific benchmarks. This original post-accession arrangement exists only with regard to Bulgaria and Romania and has not been duplicated in subsequent enlargements. It was considered sufficient to guarantee compliance with EU values and standards in the area of rule of law.

However, following the general elections of December 2016, democratic backsliding started to manifest in Romania, and regular reports issued by the European Commission within the CVM framework started to mention possible systemic threats to the rule of law. The short but concentrated rule of law backsliding culminated in 2018 with a general assault on judicial independence through legislative amendments (see here), institutional reforms (see here) and the weakening of the legal framework on integrity. In a nutshell, judicial reforms in Romania focused, inter alia, on the creation of a special prosecutorial section meant to investigate crimes accomplished by magistrates coupled with diminishing the powers of the prosecutorial section dealing with the fight against corruption, the personal liability of magistrates for judicial errors as well as the patrimonial liability of the state for miscarriages of justice. Also, the legal procedures for the appointment of the chief prosecutor of the newly created special section meant to investigate crimes accomplished by magistrates have been revised by Government immediately after their approval by Parliament in order to make the designation of a specific person possible.

Civil society, an important fraction of the magistrates, parliamentary opposition and the President of Romania used all available instruments in order to stop or limit the damages. Challenging judicial reforms in the Constitutional Court, the use of presidential veto, requests for opinions from Venice Commission or GRECO, requests of preliminary rulings by national judges asking the ECJ to clarify the compliance of judicial reforms with EU law represented complex resilient practices. We have detailed the political and constitutional context and consequences of that general assault on the Romanian judicial system elsewhere.((E.S. Tănăsescu, Romania: From Constitutional Democracy to Constitutional Decay?, in V. Besirevic (Ed.), New Politics of Decisionism, Eleven International Publishing, The Hague, 2019, pp. 177-191.)) Following the general elections of December 2020, a different parliamentary majority has set forth to reverse the tide and correct – to the extent where this is still possible – the wrongs already done, so far with mitigated success.

Preliminary Questions

Although the rule of law backsliding in Romania has been weaker and of a shorter duration than those observed in other EU member states, in 2019 Romanian courts capitalised on the experience gained by the ECJ with regard to the protection of the rule of law in other member states and addressed preliminary questions ((See in particular cases C-83/19, C-127/19, C-195/19, C-291/19, C-355/19, C-379/19, C-397/2019, C-547/19, C-811/19, C-840/19.)) pertaining to the compliance of Romanian judicial reforms with EU acquis on judicial independence.

In short, preliminary questions coming from Romania face the ECJ with two broad types of queries. The first one has to do with the primacy of EU law. In essence, Romanian judges want to know whether EU law takes precedence over national law not only as far as the judiciary is concerned when administering justice, but also as far as the legislative and the executive are concerned when they design and implement national policies. And in particular, Romanian judges needed guidance on the nature, legal value and effects of the CVM and of the periodic reports adopted on its basis, especially in the light of the recent case law (Decision 137/2019) of the Romanian Constitutional Court. The second question relates to institutional innovations brought by the recent judicial reforms and validated by the Constitutional Court, particularly to the creation of a special prosecutorial section for the investigation of magistrates and the appointment of its chief prosecutor, as well as to the composition of courts’ panels specialised in the fight against corruption.

The first question is not new in itself, but its novelty stems from the fact that is has been framed from a perspective that is specific only to Romania (and Bulgaria), since they are the only two member states enjoying a post-accession monitoring specifically regarding the rule of law. The second question is not new either, since the ECJ has already dealt with similar issues in relation with judicial reforms undertaken in Hungary or Poland or, more recently, in Malta.

A first answer to these questions came on 18 May 2021 in the ECJ judgment Asociația „Forumul Judecătorilor din România” and will be discussed in the following.

Primacy of EU Law and the Specifics of the Mechanism of Cooperation and Verification Instituted by Decision 2006/928/EC

The first issue concerned not so much the legal value of the Commission’s Decision 2006/928/EC 13 December 2006 on the CVM, but rather its nature and legal effects as such, and particularly of the reports issued by the European Commission on its basis. The ECJ has been specifically asked whether the recommendations contained in the Commission’s yearly reports are binding on Romanian authorities.

The Advocate General Michal Bobek made clear in his opinion that, while Decision 2006/928/EC and the mechanism of cooperation and verification is compulsory for Romanian authorities, the reports and the recommendations therein do not enjoy binding value although “they are to be duly taken into consideration by that Member State”. Thus, national judges should not rely on the recommendations contained in CVM reports in order to set aside the application of national legislation that they deem contrary to such recommendations.

The judgment of the ECJ on this specific question was awaited with great interest particularly against the case law of the Romanian Constitutional Court which, in Decisions no.104/2018 AND no 682/2018, ruled that “since the meaning of Decision 2006/928/EC […] has not been clarified by the Court of Justice of the European Union as regards its content, character and temporal limit and whether all these are circumscribed to the provisions of the Treaty of accession […], that Decision cannot be considered as a reference norm for the judicial review”. As a result, the Romanian Constitutional Court refused to make any further reference to Decision 2006/928/EC and considered that the legislator is within its margin of appreciation, as provided by the ‘constitutional identity’ corroborated with national sovereignty, whenever it is making laws that regulate the substance matter of topics covered by the CVM.

Such a position seems difficult to be upheld in the future, at least as far as the legal nature and binding value of the Decision 2006/928/EC and the CVM are concerned. The recent ECJ judgment Asociația „Forumul Judecătorilor din România” clearly asserts the binding nature of those EU legal instruments and their direct effect. Nevertheless, the Romanian Constitutional Court may lawfully continue to refuse to refer to these EU legal instruments as norms of reference for the constitutionality review it performs, although if it decided to turn to a substantive approach of the concept of the rule of law it would have to acknowledge the correlation between Article 1 (3) of the Romanian Constitution, which states that Romania is a state governed by the rule of law, and the substantive matter of Decision 2006/928/EC.

By contrast, the ordinary courts of Romania are in a totally different position. In its masterpiece judgment of 18 May 2021, the ECJ has established the mandatory character of Decision 2006/928/EC, of the CVM, and of the benchmarks they provide. Thus, in para.178, the ECJ stated that: “Decision 2006/928 falls, as regards its legal nature, its content and its effects over time, within the scope of the Accession Treaty. This decision is, as long as it has not been repealed, binding in all its elements for Romania. The benchmarks set out in its annex aim to ensure that this Member State respects the value of the rule of law set out in Article 2 TEU and are binding on that Member State, in the sense that the latter is required to take the appropriate measures to achieve these objectives, taking due account, under the principle of sincere cooperation set out in Article 4 (3) TEU, of the reports drawn up by the Commission on the basis for the said decision, in particular the recommendations made in the said reports.”  The ECJ also obliged regular courts to ensure the full effect of all above mentioned legal instruments, including by leaving, if necessary, unapplied, on their own authority, any contrary provision of national law, even subsequent, without having to request or await the prior elimination of it by legislative means or by any other constitutional process.

Thus, the ECJ used its classical teleological method of interpretation when, in para. 249 of its judgment, it established that “as regards Decision 2006/928/EC, which is more precisely referred to by the considerations of the Constitutional Court […], that decision imposes on Romania to achieve as soon as possible the benchmarks it sets out. As long as these objectives are formulated in clear and precise terms and are not subject to any conditions, they have direct effect.” The ECJ has managed to reach two objectives with only one stroke: it clarified the nature and legal effects of the original legal instrument which is the CVM and it made binding and enjoined direct effect to the benchmarks fixed by the CVM. By the same token, the ECJ has put forward a substantive approach of the rule of law, thus also creating a potential mandatory character for the recommendations made by the European Commission in its regular reports (see para.2 of the operative part)((The second paragraph of the operative part of the ECJ’s decision Asociația „Forumul Judecătorilor din România” specifies that the reports drawn up by the Commission on the basis of Decision 2006/928 formulate demands with regard to Romania and address “recommendations” to that Member State with a view to achieve the benchmarks. “In accordance with the principle of sincere cooperation, Romania must take due account of the said requirements and recommendations”, and must refrain from adopting or maintaining measures in the areas covered by the benchmarks which could compromise the outcome of the requirements and recommendations prescribed.)). And without overtly confronting the Romanian Constitutional Court((The Constitutional Court had explicitly refused a direct dialogue with the ECJ in decision no.137/2019, which has been considered by Romanian scholarship “a missed opportunity”.)) and its in statu nascendi doctrine on ‘constitutional identity’, the ECJ has de facto succeeded to considerably reduce the margin of appreciation of Romanian authorities and oblige them to comply with the substance matter of the MCV. From now on, benchmarks of the CVM are to be considered as EU acquis, irrespective of the various positions that may be held internally by national authorities.

 Judicial Organisation and Disciplinary Regime of Magistrates

The second broad question raised by Romanian courts concerns judicial organisation. Among other issues, all relevant for judicial independence, the most sensitive ones touch upon the creation of a special disciplinary regime for magistrates((Cases C-379/19, C-397/2019, C-811/19, C-840/19.)) and the composition of panels of courts dealing with the fight against corruption((Cases C-357/19, C-‑547/19, C-379/19, C-811/19, C-840/19.)). While the disciplinary regime of magistrates has been seriously altered by the judicial reform of 2018 (see here), the composition of courts’ panels specialised in the fight against corruption is the result of a re-evaluation made by the Romanian Constitutional Court, particularly in decisions no. 685/2018 (see here) and no. 417/2019, of the status quo resulting from a series of previous reforms.

Unfortunately, the disciplinary regime of magistrates is becoming a regular feature in cases dealt with by the ECJ. In the specific case of Romania, the ECJ has taken a nuanced view and ruled that “the legal framework governing the organization of justice in Romania, such as the one relating to the ad interim appointment to managerial positions of the Judicial Inspectorate and the establishment of a section of the public prosecution responsible for investigating crimes committed within the judicial system, fall within the scope of Decision 2006/928, so that they must comply with the requirements arising from Union law and, in particular, from the value of the rule of law set out in Article 2 TEU”. But, while the ad interim appointment of the chief inspector of magistrates was found to be in breach of EU law, the creation of a special prosecutorial section for the investigation of magistrates was left for the examination of national courts. In particular, national courts are required to examine whether such an institutional novelty is justified by objective and verifiable requirements drawn from the good administration of justice and whether it is accompanied by guarantees against its utilisation as an instrument of political control, able to undermine their independence or to prevent them from fulfilling their competence as agents of EU law enforcement.

By placing the legal framework regarding the organization of justice in Romania under the scope of Decision 2006/928 and not acknowledging it as an area where the EU has sole residual competence, as it had explicitly done in Associação Sindical dos Juízes Portugueses, the ECJ has emphasized once more the specificity of the CVM, its legally binding effects and the limits of the margin of appreciation that Romanian authorities enjoy when legislating in the substantive matter covered by Decision 2006/928. Building upon its own case law pertaining to appointments in the judicial systems of member states and the disciplinary regime of magistrates((See judgments in cases C ‑ 216/18 PPU, Minister for Justice and Equality; C ‑ 619/18, Commission / Poland (Independence of the Supreme Court); C-192/18, Commission / Poland (Independence of ordinary courts); C ‑ 824/18, A. B. and others (Appointment of judges to the Supreme Court – Appeal).)) the ECJ found that an ad interim appointment of the chief inspector of magistrates which appears to have been ‘custom made’ could contradict relevant EU acquis, but made its judgment dependent on the specific national context (paras.205-206).

In respect of the special prosecutorial section for the investigation of magistrates, the Court held that its creation may represent an additional guarantee for the independence of magistrates provided it did not “allow complaints to be introduced in an abusive manner, inter alia for the purpose of interfering in sensitive ongoing cases, including complex and high-profile cases related to high-level corruption or organized crime” (para.218). However, since the ECJ noted that “practical examples drawn from the activities of the SIIJ are such as to confirm the realization of the risk […] that this section is akin to an instrument of political pressure” (para.219), it practically summoned national courts to consider that its creation is in breach of EU law unless it is justified by an objective raison d’être which it will serve exclusively.

Conclusion

From all the above, one can infer that the stance taken by the EU with regard to Romania may be alleviated by the fact that the CVM is still in place and the dimensions of the democratic backsliding have been lesser than in other member states, but significant deviations from what has now become a fully-fledged EU acquis in the area of rule of law are and will continue to be reprimanded. It is also clear that the ECJ has greatly contributed to the development of an EU legal standard of rule of law, while obliging not only national courts but also legislative and executive powers of member states to comply with it.

The impact of this ECJ judgment may be significant considering that it offers national courts a guide on the application of the primacy of EU law, CVM included: “in the case of violation of Article 19 para. 1, second phrase TEU, the principle of primacy of the EU law requires that the referring court leaves unapplied the violating provisions, regardless of their origin – legislative or constitutional (…). [T]he principle of primacy of the Union law must be interpreted in the sense that it is opposed to a constitutional disposition of a Member State, as interpreted by the constitutional jurisdiction, according to which an ordinary court is not authorized to leave unapplied, by its own authority, a national disposition falling into the scope of Decision 2006/928 which the said court considers to be, in the light of a judgment of the Court, contrary to this decision [2006/928] or to Article 19, para.1, second phrase TEU” (paras.251-252).

And, considering that the Romanian Parliament elected in December 2020 is currently discussing options for the reversal of most judicial reforms undertaken during 2017-2018 this timely judgement could orient policy choices.