Opinion of the Court of Justice delivered on 20 Jan 2022

IDENTIFIER
62021CC0430 | ECLI:EU:C:2022:44
LANGUAGE
English
ORIGIN
ROU
COURT
Court of Justice of the European Union
ADVOCATE GENERAL
Collins
AG OPINION
NO
REFERENCES MADE
52
REFERENCED
1
DOCUMENT TYPE
Opinion of the Advocate-General

Judgment



 OPINION OF ADVOCATE GENERAL

COLLINS

delivered on 20 January 2022 ( 1 )

Case C‑430/21

RS

(Effect of the decisions of a constitutional court)

(Request for a preliminary ruling from the Curtea de Apel Craiova (Romania))

(Reference for a preliminary ruling – Rule of law – Principle of judicial independence – Article 2 TEU – Second subparagraph of Article 19(1) TEU – Article 47 of the Charter of Fundamental Rights of the European Union – Provision of the Constitution of a Member State as interpreted by its constitutional court finding that national courts have no jurisdiction to examine the conformity with EU law of a provision of national law that has been found to be constitutional by a decision of the constitutional court – Disciplinary proceedings)

I. Introduction

1.

Can a national judge be prevented from, and put at risk of exposure to disciplinary proceedings and penalties as a consequence of examining the conformity with EU law of a provision of national law that has been held to be constitutional by the constitutional court of that Member State? This is the key point in the present request for a preliminary ruling by the Curtea de Apel Craiova (Court of Appeal, Craiova, Romania). The request concerns, in essence, the interpretation of the second subparagraph of Article 19(1) TEU, read in conjunction with Article 2 TEU and Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’). It requires the Court again to interpret those provisions in a context where a national constitutional court directly challenges the primacy of EU law.

2.

The request arises out of an application before the referring court concerning the duration of proceedings on foot of a complaint against a public prosecutor and two judges which was registered before the Parchetul de pe lângă Înalta Curte de Casaţie şi Justiţie – Secția pentru Investigarea Infracțiunilor din Justiție (Section within the Public Prosecutor’s Office for the investigation of offences committed within the judicial system) (‘the SIIJ’).

3.

In 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) (‘the judgment in Asociaţia Forumul Judecătorilor din România’) ( 2 ), the Court held, inter alia, that national legislation providing for the creation of the SIIJ is contrary to EU law where its establishment is not justified by objective and verifiable requirements relating to the sound administration of justice and is not accompanied by specific guarantees identified by the Court. ( 3 )

4.

In Decision No 390/2021, ( 4 ) delivered on 8 June 2021, the Curtea Constituțională (Constitutional Court) of Romania dismissed an objection that the provisions of national law on the establishment and functioning of the SIIJ were unconstitutional. The Curtea Constituțională (Constitutional Court) noted that in previous rulings it had held that the provisions in question were constitutional and stated that it saw no reason to depart from those rulings notwithstanding the judgment of the Court of Justice in Asociaţia Forumul Judecătorilor din România. The Curtea Constituțională (Constitutional Court) acknowledged that whilst Article 148(2) of the Romanian Constitution provides for the primacy of EU law over contrary provisions of national law, that principle cannot remove or negate national constitutional identity. That provision merely ensures the primacy of EU law over ‘infra-constitutional law’. It does not grant EU law primacy over the Romanian Constitution, with the result that a national court has no power to examine the conformity with EU law of a provision of domestic law that has been held to be constitutional by the Curtea Constituțională (Constitutional Court). Decision No 390/2021 thus has clear implications for the primacy of EU law and the effect of judgments of the Court of Justice extending beyond the scope of litigation relating to the SIIJ.

5.

The questions referred by the Curtea de Apel Craiova (Court of Appeal, Craiova) do not directly relate to the issue of the primacy of EU law or the legality pursuant to EU law of the establishment and functioning of the SIIJ. Rather they focus on the role of national courts in ensuring effective legal protection in the fields covered by EU law and the independence of the judiciary against the backdrop of the ruling of the Curtea Constituțională (Constitutional Court) in Decision No 390/2021.

6.

Prior to examining the questions referred, I shall outline the relevant provisions of national law, the dispute in the main proceedings and the procedure before the Court in the present case.

II. Romanian law

A.   The Romanian Constitution

7.

Article 148(2) to (4) of the Constituția României (‘the Romanian Constitution’) provides:

‘(2)   Following accession, the provisions of the Treaties establishing the European Union, as well as any other binding Community rules, shall prevail over conflicting provisions of national laws, in accordance with the provisions of the Act of Accession.

(3)   Paragraphs 1 and 2 of the present article shall also apply by analogy to the accession to the acts revising the Treaties establishing the European Union.

(4)   The Parliament, the President of Romania, the Government and the judiciary shall ensure that the obligations under the Act of Accession and the provisions of paragraph 2 of the present article are fulfilled.’

B.   The Code of Criminal Procedure

8.

Article 4881 of the Codul de procedură penală (Code of Criminal Procedure) provides inter alia that, if the work of the prosecution is not completed within a reasonable time, the injured party may lodge a complaint at least one year after the start of criminal proceedings requesting the acceleration of the procedure.

9.

Article 4885(1) of the Code of Criminal Procedure provides inter alia that when ruling on the complaint, the judge having responsibility for matters relating to rights and freedoms, or the competent court, must verify the duration of the proceedings on the basis of the measures taken, the documents in the case file and the observations submitted.

10.

Article 4886(1) of the Code of Criminal Procedure provides inter alia that where the judge having responsibility for matters relating to rights and freedoms, or the competent court, considers that the complaint is well founded, he or she must uphold the complaint and set a time limit within which the public prosecutor must deal with the case.

C.   Law No 303/2004

11.

Pursuant to Article 99(ș) of Legea nr. 303/2004 privind statutul judecătorilor și procurorilor (Law No 303/2004 on the rules governing judges and prosecutors) of 28 June 2004 (‘Law No 303/2004’), a failure to comply with decisions of the Constitutional Court constitutes a disciplinary offence. ( 5 )

III. The dispute in the main proceedings and the questions referred for a preliminary ruling

12.

RS was convicted on foot of criminal proceedings in Romania. On 1 April 2020, RS’s wife lodged a criminal complaint against three members of the judiciary: a public prosecutor and two judges. In her complaint she accused the public prosecutor of the offences of abuse of process and abuse of office. She alleged, in essence, that the public prosecutor had initiated criminal proceedings in breach of RS’s rights of defence and had brought charges against him on the basis of false testimony. RS’s wife further accused the two judges of abuse of office on the ground that, in the course of the appeal procedure, they had failed to examine and rule on an application for the legal reclassification of the facts, thus breaching the rights of the defence.

13.

Since the criminal complaint related to members of the judiciary, it was registered with the SIIJ. On 14 April 2020, the public prosecutor at the SIIJ initiated criminal proceedings alleging that the members of the judiciary had committed the offences of abuse of process and abuse of office.

14.

On 10 June 2021, RS lodged, with the judge of the Curtea de Apel Craiova (Court of Appeal, Craiova) having responsibility for matters relating to rights and freedoms, a complaint concerning the duration of the criminal proceedings pending before the SIIJ. He requested that the court fix a date by which the prosecutor in charge of the case should conclude it.

15.

The SIIJ sent the file relating to the criminal prosecution to the referring court, at the latter’s request.

16.

The referring court notes that, in the proceedings before it, it must either uphold or reject the complaint. If it rejects the complaint, the file will be returned to the SIIJ, on the basis that the duration of the proceedings has not exceeded a reasonable period of time. If the referring court upholds the complaint, that court must set a date by which the case must be dealt with and thereafter return the file to the SIIJ. It appears that a failure to comply with the latter time limit does not entail any legal consequences.

17.

The referring court considers that, in order to reach a decision upon the complaint before it, it must analyse (i) the national legislation governing the establishment and functioning of the SIIJ, (ii) the criteria developed by the Court in the judgment in Asociaţia Forumul Judecătorilor din România for deciding whether or not the SIIJ operates in accordance with EU law and (iii) the effect on the establishment and functioning of the SIIJ of Decision No 390/2021, in which the Curtea Constituțională (Constitutional Court) dismissed an objection of non-constitutionality directed at Articles 881 to 889 of Legea nr. 304/2004 privind organizarea judiciară (Law No 304/2004 on the organisation of the judicial system) of 28 June 2004 (Official Gazette of Romania, Part I, No 827 of 13 September 2005) (‘Law No 304/2004’).

18.

According to the referring court, in the judgment in Asociaţia Forumul Judecătorilor din România, the Court held that Article 2 and the second subparagraph of Article 19(1) TEU, together with Commission 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 public prosecutors, where the creation of such a section is not justified by objective and verifiable requirements relating to the sound administration of justice and is not accompanied by specific guarantees. In addition, the principle of the primacy of EU law must be interpreted as precluding Member State legislation of a constitutional status, as interpreted by that Member State’s constitutional court, whereby 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.

19.

It appears from the extracts of Decision No 390/2021 reproduced by the referring court in its request for a preliminary ruling that the Curtea Constituțională (Constitutional Court) acknowledged that, under Article 148 of the Romanian Constitution, which governs the relationship between national law and EU law, it must ensure the primacy of EU law. ‘However, that primacy, or precedence, is not to be understood as excluding or negating the national constitutional identity, enshrined in Article 11(3) of the Constitution, read in conjunction with Article 152 thereof, which is a guarantee of the core identity of the Romanian Constitution and is not to be relativised in the process of European integration. By virtue of that constitutional identity, the Constitutional Court has power to ensure the primacy of the Constitution within the territory of Romania (see mutatis mutandis, judgment of 30 June 2009, 2 BvE 2/08 and Others, delivered by the Federal Constitutional Court of the Federal Republic of Germany).’ ( 6 )

20.

The Curtea Constituțională (Constitutional Court) considered that a court or tribunal has the power to examine the conformity of a provision forming part of domestic law with EU law in the light of Article 148 of the Constitution. Where it finds a conflict, that court has jurisdiction to give precedence to provisions of EU law in disputes concerning the subjective rights of citizens. The Curtea Constituțională (Constitutional Court) considered that the reference to domestic law is exclusively to infra-constitutional legislation since, by virtue of Article 11(3) thereof, the Romanian Constitution maintains a hierarchically superior position in the law of Romania. Accordingly, Article 148 of the Romanian Constitution does not confer on EU law precedence over the Constitution, with the result that a national court has no power to examine the conformity with EU law of a provision of domestic law that has been held to be constitutional in accordance with Article 148 of the Constitution. ( 7 )

21.

The Curtea Constituțională (Constitutional Court) further considered that the obligations imposed by Decision 2006/928 are binding on the Romanian authorities competent to engage in institutional cooperation with the European Commission (the Romanian Parliament and the Romanian Government). Since the courts have no authority to cooperate with political institutions of the European Union, they are not so bound. The Curtea Constituțională (Constitutional Court) found that the application of point 7 of the operative part of the judgment in Asociaţia Forumul Judecătorilor din România, according to which a court ‘is 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 of Justice], to be contrary to that decision or to the second subparagraph of Article 19(1) TEU’, has no basis in the Romanian Constitution because Article 148 thereof enshrines the primacy of EU law over conflicting provisions of national laws. The reports from the Commission to the European Parliament and the Council on Progress in Romania under the Cooperation and Verification Mechanism, drawn up on the basis of Decision 2006/928 (‘CVM reports’), by virtue of their content and effects, as established by the Court of Justice in the judgment in Asociaţia Forumul Judecătorilor din România, do not, in the opinion of the Curtea Constituțională (Constitutional Court) ‘constitute rules of EU law to which courts must give priority, disapplying rules of national law’. National courts cannot give priority to the application of recommendations, to the detriment of national law, because CVM reports are not legislative acts and thus cannot conflict with domestic legislation. The ruling of the Curtea Constituțională (Constitutional Court) thus affirms that conclusion that the provision of national law is consistent with the Romanian Constitution by reference to Article 148 thereof. ( 8 )

22.

Since the judgment in Asociaţia Forumul Judecătorilor din România cannot reverse the case-law of the Curtea Constituțională (Constitutional Court) on the effect on the establishment and functioning of the SIIJ of Decision 2006/928 on the review of constitutionality and, by implication, an infringement of Article 148 of the Constitution, the Curtea Constituțională (Constitutional Court) dismissed as unfounded the objection of non-constitutionality raised in respect of Law No 304/2004.

23.

The referring court considers that the questions referred have a direct link with the resolution of the case before it. The complaint regarding the duration of the criminal proceedings concerns proceedings before the SIIJ. The judge hearing that complaint is required to examine all of the circumstances impinging upon the duration of the criminal proceedings. Those include the legislation governing the activities of the SIIJ, the workload of the SIIJ in relation to the number of public prosecutors, the rate at which cases are resolved and whether the SIIJ operates in conformity with the judgment in Asociaţia Forumul Judecătorilor din România. That exercise will enable the judge hearing the complaint to determine whether the work of the SIIJ, within the current legal framework and with its current staffing, is justified by objective and verifiable requirements relating to the proper administration of justice. In particular, the issue arises as to whether the SIIJ is in a position to conduct criminal proceedings where the right of every person to a fair trial is properly observed, including the duration of those proceedings. The referring court observes that, in paragraph 221 of the judgment in Asociaţia Forumul Judecătorilor din România, the Court stated that, as regards the rights enshrined in Articles 47 and 48 of the Charter, it is important that rules governing the organisation and the functioning of an entity such as the SIIJ should be so designed as to ensure that cases against judges and prosecutors are heard within a reasonable time.

24.

Moreover, the referring court must decide whether the file is to be returned for the purposes of the continued prosecution of criminal proceedings by a public prosecutor’s office that, in the light of the judgment in Asociaţia Forumul Judecătorilor din România, could be deemed to operate in breach of EU law.

25.

The referring court considers that it is required to choose between applying EU law as interpreted by the Court in the judgment in Asociaţia Forumul Judecătorilor din România and applying Decision No 390/2021. If the judge chooses to apply the judgment of the Court of Justice and to disapply Decision No 390/2021, he may be subject to disciplinary proceedings, in accordance with Article 99(ș) of Law No 303/2004, because failure to comply with a decision of the Curtea Constituțională (Constitutional Court) constitutes a disciplinary offence. Such disciplinary proceedings could lead to the judge being suspended from office. The prospect that such consequences might follow has the capacity to interfere with the judge’s independence in reaching a decision in the case before him.

26.

The referring court also refers to the case of a judge of the Curtea de Apel Pitești (Court of Appeal, Pitești, Romania), reported in the press. Applying Articles 2 and 19 TEU, Decision 2006/928 and the judgment in Asociaţia Forumul Judecătorilor din România, the judge of the Curtea de Apel Pitești (Court of Appeal, Pitești) held that the SIIJ was ‘not justified by objective and verifiable requirements relating to the proper administration of justice and [did] not offer specific guarantees that, first, [precluded] any risk of that section being used as an instrument by means of which political control [could] be exercised over the activities of individual judges and public prosecutors in such a way as to undermine their independence and, secondly, [ensured] that its powers [could] be exercised in relation to such individuals in accordance with the obligations arising under Articles 47 and 48 of [the Charter]’. He thus required the public prosecutor to decline jurisdiction to resolve the case, thereby disapplying the provisions of Article 881 of Law No 304/2004 in connection with the determination of jurisdiction. As a consequence of that decision, the Inspecția Judiciară (Judicial Inspectorate, Romania) initiated disciplinary proceedings against that judge for alleged misconduct, consisting in the performance of his duties in bad faith or with gross negligence when handling a case arising out of a complaint concerning the duration of proceedings.

27.

The referring court thus asks whether a practice of subjecting to disciplinary proceedings a judge who, on the basis of the judgment in Asociaţia Forumul Judecătorilor din România, has taken the view that the national provisions relating to the SIIJ are contrary to EU law, is consistent with the principle of the independence of the judiciary.

28.

In those circumstances, the Curtea de Apel Craiova (Court of Appeal, Craiova) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1)

Does the principle of the independence of the judiciary, enshrined in the second subparagraph of Article 19(1) TEU, read in conjunction with Article 2 TEU and Article 47 of [the Charter], preclude a provision of national law, such as that contained in Article 148(2) of the Romanian Constitution, as interpreted by the Curtea Constituțională (Constitutional Court) in Decision No 390/2021, according to which national courts have no jurisdiction to examine the conformity with EU law of a provision of national law that has been found to be constitutional by a decision of the Constitutional Court?

(2)

Does the principle of the independence of the judiciary, enshrined in the second subparagraph of Article 19(1) TEU, read in conjunction with Article 2 TEU and Article 47 of [the Charter], preclude a provision of national law, such as that contained in Article 99(ș) of [Law No 303/2004], which provides for the initiation of disciplinary proceedings and the application of disciplinary penalties in respect of a judge for failure to comply with a decision of the Constitutional Court, where that judge is called upon to acknowledge the primacy of EU law over the grounds of a decision of the Constitutional Court, that provision of national law depriving him or her of the possibility of applying a judgment of the Court of Justice of the European Union which he or she regards as taking precedence?

(3)

Does the principle of the independence of the judiciary, enshrined in the second subparagraph of Article 19(1) TEU, read in conjunction with Article 2 TEU and Article 47 of [the Charter], preclude a national judicial practice which precludes a judge, on pain of incurring disciplinary liability, from applying the case-law of the Court of Justice of the European Union in criminal proceedings in relation to a complaint regarding the reasonable duration of criminal proceedings, governed by Article 4881 of the Romanian Code of Criminal Procedure?’

IV. Procedure before the Court

29.

The Curtea de Apel Craiova (Court of Appeal, Craiova) requested that the present request for a preliminary ruling be dealt with under the urgent preliminary ruling procedure, or, in the alternative, under the expedited procedure in accordance inter alia with Article 23a of the Statute of the Court of Justice.

30.

In support of its request, the referring court indicated that disciplinary proceedings had been opened concerning the application of EU law in accordance with the interpretation of the Court in the judgment in Asociaţia Forumul Judecătorilor din România. Those proceedings gravely undermine the independence of the judiciary and the stability of the judicial system. In addition, the uncertainties created by the national provisions at issue affect the functioning of the system of judicial cooperation established by Article 267 TFEU.

31.

On 30 July 2021, the First Chamber of the Court decided, after hearing the Judge-Rapporteur and the Advocate General, to decline the request by the Curtea de Apel Craiova (Court of Appeal, Craiova) that the request for preliminary ruling be dealt with under the urgent preliminary ruling procedure.

32.

As regards the request for an expedited procedure, Article 105(1) of the Rules of Procedure provides that, at the request of the referring court or tribunal or, exceptionally, of his own motion, the President of the Court may decide, after hearing the Judge-Rapporteur and the Advocate General, that a reference for a preliminary ruling is to be determined pursuant to an expedited procedure where the nature of the case requires that it be dealt with within a short time. Moreover, where a case raises serious uncertainties that affect fundamental issues of national constitutional law and EU law, it may be necessary, having regard to the particular circumstances of such a case, to deal with it within a short time. ( 9 )

33.

On 12 August 2021, the President of the Court decided, after hearing the Judge-Rapporteur and the Advocate General, to grant the referring court’s request that the present request for a preliminary ruling be determined pursuant to an expedited procedure in accordance with Article 105(1) of the Rules of Procedure. The President of the Court based his decision on the fact that the questions on the primacy of EU law raised by the present reference for a preliminary ruling were of fundamental importance for Romania and for the constitutional order of the Union.

34.

The President of the Court fixed the date for the submission of written observations on 27 September 2021. In accordance with Article 105(2) of the Rules of Procedure of the Court, the date of the hearing was fixed for 23 November 2021.

35.

The Romanian, Netherlands and Belgian Governments submitted written observations, as did the European Commission. Written questions were addressed to the parties, other interested parties and the Romanian Government for response at the hearing on 23 November 2021.

36.

The Romanian Government and the Commission presented oral submissions at the hearing on 23 November 2021.

V. Admissibility

37.

The referring court indicated that the need to make the present request for a preliminary ruling arose out of the conflict between Decision No 390/2021 of the Curtea Constituțională (Constitutional Court) and the judgment in Asociaţia Forumul Judecătorilor din România and, in particular, from the need to ascertain whether when examining the complaint before it, the referring court may, in accordance with that judgment of the Court of Justice, examine the provisions relating to the establishment and functioning of the SIIJ in order to determine whether they are contrary to Article 2 and the second subparagraph of Article 19(1)TEU and Article 47 of the Charter.

38.

The written observations contained no objection to the admissibility of the questions referred. At the hearing on 23 November 2021, both the Romanian Government and the Commission accepted that the questions referred are admissible.

39.

The Commission considered that the circumstances in the main proceedings can be distinguished from those giving rise to judgment of 26 March 2020, Miasto Łowicz and Prokurator Generalny (C‑558/18 and C‑563/18, EU:C:2020:234). First, in that case, the main proceedings were not connected to EU law and the national judges were not called on to apply EU law. By contrast, in the main proceedings under consideration here the national judge is being called on to apply the second subparagraph of Article 19(1) TEU, Decision 2006/928 and the judgment in Asociaţia Forumul Judecătorilor din România. Secondly, it is clear from the judgment of 26 March 2020, Miasto Łowicz and Prokurator Generalny (C‑558/18 and C‑563/18, EU:C:2020:234, paragraph 54) that the disciplinary proceedings against the two judges who made the requests for a preliminary reference had been closed. The threat of disciplinary proceedings had thus become hypothetical. In the present case, the threat of disciplinary proceedings against the judge who has made the preliminary reference is not hypothetical as he has not yet applied EU law. In addition, making a ruling contrary to Decision No 390/2021 of the Curtea Constituțională (Constitutional Court) automatically constitutes an offence under Article 99(ș) of Law No 303/2004. Thirdly, the Commission considered that, in the light of those considerations, the three questions referred are linked.

40.

The Romanian Government for its part highlighted the relevance of Article 19(1) TEU in relation to the legality of the length of proceedings before the SIIJ in the main proceedings. It also accepted that the risk of a judge being exposed to disciplinary sanctions might be a relevant factor in the main proceedings.

41.

I propose, for the sake of completeness, to examine the admissibility of all the questions referred.

42.

By its first question, the referring court seeks in essence to ascertain whether the principle of the independence of the judiciary, enshrined in the second subparagraph of Article 19(1) TEU, read in conjunction with Article 2 TEU and Article 47 of the Charter precludes a provision of national law, such as that contained in Article 148(2) of the Romanian Constitution as interpreted by the Curtea Constituțională (Constitutional Court) in Decision No 390/2021, in accordance with which national courts have no jurisdiction to examine the conformity with EU law of a provision of national law that has been found to be constitutional by a decision of the Curtea Constituțională (Constitutional Court).

43.

It is settled case-law that while questions on the interpretation of EU law referred by a national court enjoy a presumption of relevance, the purpose of the preliminary reference procedure under Article 267 TFEU is not to facilitate the delivery of advisory opinions on general or hypothetical questions. Rather, as is apparent from the text of that provision, it requires that the question referred for a preliminary ruling is ‘necessary’ to enable the referring court to ‘give judgment’ in the case before it. ( 10 )

44.

Article 267 TFEU therefore gives national courts the widest discretion in referring matters to the Court where they consider that a case pending before them raises questions involving the interpretation of provisions of EU law that are necessary for the resolution of the case before them. Thus, in particular, a court other than one ruling at final instance must be free, if it considers that the legal ruling of a higher court, and even that of a constitutional court, could lead it to give a judgment contrary to EU law, to refer to the Court questions that are of concern to it. ( 11 )

45.

Without prejudging the examination of the substance of the first question of the referring court, it is evident that the ruling of the Curtea Constituțională (Constitutional Court) in Decision No 390/2021 could lead the referring court to give a judgment contrary to EU law and, in particular, to the provisions referred to in that question, namely Article 2 and the second subparagraph of Article 19(1) TEU and Article 47 of the Charter. I therefore consider that the first question is admissible.

46.

By its second and third questions, the referring court seeks in essence to ascertain whether the principle of the independence of the judiciary, enshrined in the second subparagraph of Article 19(1) TEU, read in conjunction with Article 2 TEU and Article 47 of the Charter, precludes a provision of national law or a national judicial practice which permits the initiation of disciplinary proceedings and the application of disciplinary penalties to a judge who applies provisions of EU law as interpreted by the Court of Justice, and thereby fails to comply with a decision of the Curtea Constituțională (Constitutional Court).

47.

Although the Romanian Government and the Commission at the hearing agreed that those questions are admissible, in light of the judgment of 26 March 2020, Miasto Łowicz and Prokurator Generalny (C‑558/18 and C‑563/18, EU:C:2020:234), I consider that the Court should examine that issue of its own motion.

48.

In that case, the Court was asked whether the second subparagraph of Article 19(1) TEU precludes national legislation which materially increases the risk of undermining the independence of judges or removes the guarantee of independent disciplinary proceedings against them. The Court held that there appeared to be no connecting factor between the provision of EU law to which the questions related, namely the second subparagraph of Article 19(1) TEU, and the disputes before the referring court, which consisted in proceedings against the State Treasury for the payment of sums and the reduction of criminal sentences for ‘cooperative witnesses’. ( 12 ) Moreover, the Court considered that the disputes in the main proceedings were unrelated to the fact that the judges who made the requests for a preliminary ruling were, as a result of their requests, potentially subject to the initiation of disciplinary proceedings against them. ( 13 )

49.

Together with the Commission, I consider that the three questions referred for a preliminary ruling are intertwined and overlap with each other. All three questions concern the principle of the independence of the judiciary and the compatibility with EU law of national provisions, as interpreted by the national constitutional court, which prevent or hinder the application of EU law by the referring court, notably Article 2 and the second subparagraph of Article 19(1) TEU and Article 47 of the Charter, as interpreted by the Court of Justice. Moreover, the connecting factor between the provisions of EU law to which those questions refer, namely Article 2 and the second subparagraph of Article 19(1) TEU and Article 47 of the Charter, and the dispute in the main proceedings which relates to the legality of a procedure before the SIIJ in the wake of the judgment in Asociaţia Forumul Judecătorilor din România and Decision No 390/2021 of the Curtea Constituțională (Constitutional Court), is evident.

50.

I further consider that the admissibility of the more specific issue raised in the second and third questions of whether the judge(s) making the present preliminary reference may potentially be exposed to disciplinary proceedings pursuant to Article 99(ș) of Law No 303/2004 for applying the ruling in the judgment in Asociaţia Forumul Judecătorilor din România, or indeed the ruling which may ultimately be handed down by the Court in the present preliminary reference proceedings, rather than abiding by Decision No 390/2021 of the Curtea Constituțională (Constitutional Court), is ‘deeply intertwined’ ( 14 ) with the substance of the first question. ( 15 ) In my view, it would be artificial to ignore that link. ( 16 )

51.

Moreover, given the clear and unequivocal terms of Article 99(ș) of Law No 303/2004, the potential for such disciplinary proceedings is not remote but a real likelihood in relation to the judge(s) in the main proceedings.

52.

In that regard, in the recent judgment of 23 November 2021, IS(Illegality of the order for reference) (C‑564/19, EU:C:2021:949, paragraphs 85 to 87), the Court distinguished its earlier judgment of 26 March 2020, Miasto Łowicz and Prokurator Generalny (C‑558/18 and C‑563/18, EU:C:2020:234).

53.

In the judgment of 23 November 2021, IS(Illegality of the order for reference) (C‑564/19, EU:C:2021:949, paragraphs 85 to 87), the Court held that a question referred to the Court concerning the principal of judicial independence and the possibility under national law to bring disciplinary proceedings against a judge for making a request for a preliminary ruling pursuant to Article 267 TFEU was admissible. The Court indicated, first, that there was a close connection between the question referred on possible disciplinary proceedings and another question referred seeking an interpretation of Article 267 TFEU. The Court thus considered that the question on possible disciplinary proceedings sought, in essence, to ascertain whether, when ruling on the substance of the case before him, the referring judge would be able to refrain from complying with the decision of a higher court without having to fear the reopening of disciplinary proceedings against him. The Court also held that the referring judge was faced with a procedural obstacle, arising from the application of national legislation against him, which he had to address before he could decide the main proceedings without external interference and in complete independence.

54.

I consider that there are clear parallels on the issue of the admissibility of questions on potential disciplinary proceedings against a judge making a preliminary reference and complying with the subsequent ruling of the Court in the present case and in the case giving rise to the judgment of 23 November 2021, IS(Illegality of the order for reference) (C‑564/19, EU:C:2021:949, paragraphs 85 to 87). ( 17 ) I therefore suggest that the Court adopt a realistic approach towards the admissibility of that issue in the specific context of this case. Since the judgment of the Court in preliminary ruling proceedings is binding on the national court as regards the interpretation of EU law for the purposes of the decision to be given in the main proceedings, ( 18 ) I consider that the questions relating to the risk of disciplinary liability of national judges who apply whatever answer the Court may give on foot of a request for a preliminary ruling are ‘necessary’ for the adjudication of the case before it.

VI. Substance

55.

The referring court’s questions seek, in essence, to ascertain whether the principle of the independence of the judiciary, enshrined in the second subparagraph of Article 19(1) TEU, read in conjunction with Article 2 TEU and Article 47 of the Charter, precludes a provision of national law of a Member State in accordance with which national courts have no jurisdiction to examine the conformity with EU law of a provision of national law that has been found to be constitutional by the constitutional court of that Member State and, where such an examination is carried out, the judges may be subject to disciplinary proceedings and the application of penalties.

A.   The judgment in Asociaţia Forumul Judecătorilor din România

56.

In the judgment in Asociaţia Forumul Judecătorilor din România the Court clearly indicated the circumstances in which an entity such as the SIIJ would not comply with the requirements of Article 2 and the second subparagraph of Article 19(1) TEU and Decision 2006/928. ( 19 ) The Court also restated its settled case-law on the principle of the primacy of EU law in accordance with which any national court, hearing a case within its jurisdiction, has the obligation to disapply any provision of national law – whether it is of a legislative or a constitutional status, as interpreted by the constitutional court – which is contrary to a provision of EU law having direct effect. ( 20 )

57.

Given that the second subparagraph of Article 19(1) TEU and the benchmarks set out in Decision 2006/928 have direct effect, ( 21 ) the Court held that a national court will be required, within the limits of its jurisdiction, to ensure the full effectiveness thereof by disapplying, if necessary, any conflicting provisions of national law. ( 22 )

58.

I do not propose to revisit the case-law of the Court either on the conformity of an entity such as the SIIJ with EU law or of the specific application of the direct effect and the primacy of EU law in the judgment in Asociaţia Forumul Judecătorilor din România. The two parameters ( 23 ) laid down in paragraph 223 of that judgment in order to assess the conformity of the SIIJ with EU law are clear. Moreover, the duty, in accordance with the principles of direct effect and the primacy of EU law, to disapply national legislation, administrative practices or case-law that are contrary to EU law owed by all organs of the State – such as the national courts, including national constitutional courts, and administrative authorities – called upon, within the exercise of the powers conferred upon them, to apply EU law, is abundantly clear. ( 24 )

59.

It is thus well settled that any provision of a national legal system and any legislative, administrative or judicial practice, whether by a constitutional court or otherwise, which might impair the effectiveness of EU law by withholding from the national court having jurisdiction to apply such law the power to do everything necessary at the moment of its application to disregard national legislative provisions or national case-law which might prevent directly applicable EU rules from having full force and effect are incompatible with the requirements which are the very essence of EU law. ( 25 )

60.

Moreover, in a case such as the present, the national court, having exercised the discretion conferred on it by the second paragraph of Article 267 TFEU to make a preliminary reference to the Court, is bound, for the purposes of the decision to be given in the main proceedings, by the interpretation of the provisions at issue given by the Court and must, if necessary, disregard the rulings of a higher court or indeed of a national constitutional court where it considers, having regard to that interpretation, that those provisions are inconsistent with EU law. ( 26 )

61.

The Romanian Government indicated in its written observations that the two conditions laid down by the Curtea Constituțională (Constitutional Court) in Decision No 390/2021 in order for EU law to have primacy over the Romanian Constitution are met in relation to the second subparagraph of Article 19(1) TEU. Thus, according to that government, the second subparagraph of Article 19(1) TEU is sufficiently clear, accurate and unequivocal and is of a certain level of constitutional relevance so that its regulatory content may substantiate any potential breach of the Constitution by national law. While that may well be true, it fails to recognise that the Court, in paragraph 249 of the judgment in Asociaţia Forumul Judecătorilor din România, held that the benchmarks set out in Decision 2006/928 have direct effect. Thus paragraph 251 of that judgment held that where it is proved that the second subparagraph of Article 19(1) TEU or Decision 2006/928 has been infringed, the principle of the primacy of EU law requires the referring court to disapply the national provisions contrary thereto, irrespective as to whether they are of legislative or of constitutional origin.

62.

The duty to disapply national legislation, administrative practices or case-law of whatever nature that are contrary to EU law is a concrete expression of the operation of both the principle of conferral under Articles 4(1) and 5 TEU and the principle of sincere cooperation under Article 4(3) TEU. ( 27 ) Save in exceptional circumstances, that duty does not impinge on the national identity of a Member State, inherent for example in their fundamental structures, political and constitutional ( 28 ) which must be respected in accordance with Article 4(2) TEU ( 29 ) and the third paragraph in the preamble to the Charter. In instances where a Member State invokes national identity in order to justify non-compliance with provisions of EU law, the Court will examine whether those provisions in fact pose a genuine and sufficiently serious threat to a fundamental interest of the society, or the fundamental structures, political and constitutional, of a Member State. ( 30 ) Vague, general and abstract assertions do not reach that threshold. Indeed, it appears from the request for a preliminary ruling that the Curtea Constituțională (Constitutional Court) itself has not identified what aspect of national identity the judgment in Asociaţia Forumul Judecătorilor din România impinges upon.

63.

Accordingly the sweeping assertion by the Curtea Constituțională (Constitutional Court) that the referring court describes in its reference for a preliminary ruling, to the effect that EU law does not have primacy over the Romanian Constitution with the result that Romanian courts have no power to examine the conformity with EU law of a provision of domestic law that has been held to be constitutional by the Curtea Constituțională (Constitutional Court), is too broad and unfocused to reflect a considered manifestation of national identity on the part of a Member State of the European Union pursuant to Article 4(2) TEU. ( 31 )

64.

In any event, all assertions of national identity must respect the common values referred to in Article 2 TEU ( 32 )and be founded upon the indivisible, universal values referred to in the second paragraph in the preamble to the Charter. ( 33 ) In those instances the rule of law ( 34 ) and effective judicial protection take centre stage. It is to that question that I shall now turn.

65.

Prior to so doing, I would observe that the tenor of the ruling of the Curtea Constituțională (Constitutional Court) in Decision No 390/2021 is such as to raise serious doubts about that court’s adherence to the essential principles of EU law as interpreted by the Court in the judgment in Asociaţia Forumul Judecătorilor din România. Moreover, the Curtea Constituțională (Constitutional Court) did not request a preliminary ruling from the Court of Justice under the third paragraph of Article 267 TFEU in order to avert the risk of an incorrect interpretation of EU law.

66.

In that regard, in its judgment of 4 October 2018, Commission v France (Advance payment) (C‑416/17, EU:C:2018:811, paragraphs 107 to 109), the Court recalled that a Member State’s failure to fulfil obligations may, in principle, be established under Article 258 TFEU whatever State agency whose action or inaction gives rise to the failure to fulfil its obligations, including constitutionally independent institutions. Where there is no judicial remedy against the decision of a national court, that court is in principle obliged to make a reference within the meaning of the third paragraph of Article 267 TFEU where a question of the interpretation of the FEU Treaty is raised before it. That obligation to make a reference is intended in particular to prevent a body of national case-law that is not in accordance with the rules of EU law from being established in any of the Member States. The Court held that, since the Conseil d’État (Council of State, France) had failed to make a reference in accordance with the procedure provided for in the third paragraph of Article 267 TFEU in order to determine a particular issue which was not so obvious as to leave no scope for doubt, the French Republic failed to fulfil its obligations thereunder.

67.

At the hearing on 23 November 2021, the Romanian Government confirmed that the Curtea Constituțională (Constitutional Court) is a court of last instance when it rules on questions pertaining to the Romanian Constitution.

B.   Applicable provisions of EU law

68.

The Court in recent years has had occasion to rule on the principle of the independence of the judiciary of the Member States in the application of EU law and the interplay between Article 2 TEU, Article 19(1) TEU, Article 267 TFEU and Article 47 of the Charter. ( 35 ) The recent origins of that case-law can be traced back to the judgment of 27 February 2018, Associação Sindical dos Juízes Portugueses (C‑64/16, EU:C:2018:117). While that judgment is an important milestone in the development of the Court’s case-law in that area, it did not, in my view, establish any new concepts but rather reiterated a number of key principles already extant in the Court’s case-law.

69.

As regards the applicable provisions of EU law, it is well established that Article 19 TEU gives concrete expression to the value of the rule of law as affirmed by Article 2 TEU. There is therefore no necessity to consider Article 2 TEU separately. ( 36 ) In the EU legal order, Article 19 TEU entrusts responsibility for judicial review to the Court of Justice and to national courts and tribunals. The guarantee of independence, inherent in the task of adjudication and essential to the proper working of the system of judicial cooperation embodied in Article 267 TFEU, is thus required at both levels of the EU legal order.

70.

Although the questions asked refer to the principle of the independence of the judiciary, there is no indication in the file before the Court that the independence of the referring court has in any way been compromised beyond the fetter placed by the Curtea Constituțională (Constitutional Court) in Decision No 390/2021 and by Article 99(ș) of Law No 303/2004 on the application of EU law by the referring court. While the second subparagraph of Article 19(1) TEU does not specifically refer to judicial independence, it is settled case-law 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. That requirement that courts be independent, which is inherent in the task of adjudication, forms part of the essence of the right to effective judicial protection and the fundamental right to a fair trial, which is of cardinal importance as a guarantee that all the rights which individuals derive from EU law will be protected and that the values common to the Member States set out in Article 2 TEU, in particular that of the rule of law, will be safeguarded. ( 37 ) What is at stake is the ability of the referring court to provide remedies sufficient to ensure effective legal protection in the fields covered by EU law as prescribed by the second subparagraph of Article 19(1) TEU ( 38 ) in the light of the limitations placed on it by Article 148(2) of the Romanian Constitution, as interpreted by the Curtea Constituțională (Constitutional Court) in Decision No 390/2021.

71.

Article 19 TEU entrusts the responsibility for ensuring the full application of EU law in all Member States and judicial protection of the rights of individuals under that law to both national courts and tribunals and to the Court. ( 39 ) Article 19 TEU thus provides for a devolved system of justice where responsibility for the application of EU law is shared between the Court of Justice and the national courts.

72.

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 which is now enshrined in Article 47 of the Charter, so that the former provision requires Member States to provide remedies that are sufficient to ensure effective legal protection, within the meaning in particular of the latter provision, in the fields covered by EU law. ( 40 ) Thus, on the one hand, the Court, in its judgment of 20 April 2021, Repubblika , ( 41 ) held that the second subparagraph of Article 19(1) TEU is intended to apply in the context of an action the purpose of which is to challenge the conformity with EU law of provisions of national law which, it is alleged, are liable to affect judicial independence. On the other hand, Article 47 of the Charter enshrines the right to an effective remedy before a tribunal for every person whose rights and freedoms guaranteed by EU law are infringed.

73.

Given that it is unclear from the request for a preliminary ruling whether RS, in the dispute in the main proceedings, is relying on a right conferred on him by a provision of EU law, it would appear that, in accordance with Article 51(1) of the Charter, ( 42 ) Article 47 thereof may not, as such, be applicable to the dispute in the main proceedings. However, since the second subparagraph of Article 19(1) TEU requires all Member States to provide remedies sufficient to ensure effective judicial protection in the fields covered by EU law, within the meaning in particular of Article 47 of the Charter, that latter provision must be taken into consideration for the purposes of interpreting the second subparagraph of Article 19(1) TEU. ( 43 )

C.   Effective legal protection by an independent judiciary

74.

It appears from the request for a preliminary ruling that the Curtea de Apel Craiova (Court of Appeal, Craiova), which has responsibility for matters relating to rights and freedoms, is seised of a complaint lodged by RS concerning the duration of criminal proceedings before the SIIJ. Nothing in the file before the Court indicates that the referring court does not have jurisdiction to deal with that complaint.

75.

It also appears that, in accordance with Article 148(2) of the Romanian Constitution, as interpreted by the Curtea Constituțională (Constitutional Court) in Decision No 390/2021, national courts may not examine the conformity with EU law of a provision of national law that has been found to be constitutional by a decision of the Curtea Constituțională (Constitutional Court). Thus national law effectively bars the referring court from assessing whether the establishment and functioning of the SIIJ comply with EU law and, where necessary and appropriate, in accordance inter alia with the indications given by the Court in the judgment in Asociaţia Forumul Judecătorilor din România, from disapplying the relevant provisions of national law at issue in accordance with the principles of primacy of EU law and direct effect.

76.

That situation is aggravated by the potential threat, pursuant to Article 99(ș) of Law No 303/2004, to initiate disciplinary proceedings against and to apply disciplinary penalties to a judge for failure to comply with a decision of the Curtea Constituțională (Constitutional Court). ( 44 )

77.

It is settled case-law that while the organisation of justice in the Member States falls within the competence of the Member States, they are required to comply with their obligations deriving from EU law and, in particular, from the second subparagraph of Article 19(1) TEU. ( 45 )

78.

The Court has consistently held that any national court hearing a case within its jurisdiction has, as an organ of a Member State, the obligation, pursuant to the principle of cooperation set out in Article 4(3) TEU, to apply in full directly applicable EU law and to protect the rights which the latter confers upon individuals, disapplying any provision of national law which may be to the contrary, whether the latter is prior to or subsequent to the EU legal rule. ( 46 )

79.

In my view, the same obligation flows directly from the second subparagraph of Article 19(1) TEU, which requires ( 47 ) Member States to provide remedies sufficient to ensure effective legal protection in the fields covered by Union law. National courts must therefore ensure the full application of EU law in all Member States and provide remedies sufficient to ensure effective legal protection. ( 48 ) The nature of the remedy to be provided by the national courts depends on whether the EU act or measure has direct effect. Where the act or measure does not entail direct effect, its binding character nevertheless places on national courts an obligation to interpret national law in conformity with EU law. ( 49 ) In certain circumstances, a failure to comply with that obligation can ground an action for damages against the State. ( 50 )

80.

The second subparagraph of Article 19(1) TEU is thus a concrete manifestation of the principle of the primacy of EU law in the Treaty on European Union. ( 51 )

81.

The second subparagraph of Article 19(1) TEU also requires that national courts called upon to rule on issues linked to the interpretation and application of EU law are independent. That is confirmed by the second paragraph of Article 47 of the Charter, which refers to access to an ‘independent’ tribunal as a requirement of the fundamental right to an effective remedy. ( 52 ) The courts concerned must thus be in a position to exercise their functions autonomously, without being subject to any hierarchical constraint or subordinated to any other body and without taking orders or instructions from any source whatsoever. Only by this means are they protected against external intervention or pressure that may be liable to impair their independent judgment and to influence the content and outcome of their decisions. ( 53 )

82.

Amongst those prohibited external interventions or pressure are rulings of a national constitutional court, such as that of the Curtea Constituțională (Constitutional Court) in Decision No 390/2021, which purports to prevent other national courts – acting within the jurisdiction granted to them under national law – to ensure the full application of EU law and the judicial protection of the rights of individuals thereunder.

83.

The Curtea Constituțională (Constitutional Court) in Decision No 390/2021 has, in my view, unlawfully arrogated competence to itself in breach of the second subparagraph of Article 19(1) TEU, in breach of the principle of primacy of EU law and in breach of the fundamental requirement of an independent judiciary.

84.

A rule or practice of national law, pursuant to which legal rulings of a constitutional court bind another national court having jurisdiction, in accordance with national law, to apply EU law, cannot deprive the latter court of its independent mandate to apply that law and to ensure effective legal protection in the fields covered by Union law. Such rules and practices impair the effectiveness of EU law and are incompatible with the very essence of EU law, including the rule of law enshrined in Article 2 TEU. ( 54 ) In that regard, it must be recalled that in its judgment of 27 February 2018, Associação Sindical dos Juízes Portugueses (C‑64/16, EU:C:2018:117, paragraph 36), the Court stated that the very existence of effective judicial review designed to ensure compliance with EU law is of the essence of the rule of law.

85.

I therefore consider that the principle of the independence of the judiciary, enshrined in the second subparagraph of Article 19(1) TEU, read in conjunction with Article 2 TEU and Article 47 of the Charter, precludes a provision or a practice of national law according to which national courts of a Member State have no jurisdiction to examine the conformity with EU law of a provision of national law that has been found to be constitutional by a decision of the constitutional court of that Member State. A fortiori, that same principle precludes the initiation of disciplinary proceedings and the application of disciplinary penalties in respect of a judge arising from such an examination.

VII. Conclusion

86.

In the light of the above considerations, I propose that the Court answer the questions posed by the Curtea de Apel Craiova (Court of Appeal, Craiova, Romania) as follows:

The principle of the independence of the judiciary, enshrined in the second subparagraph of Article 19(1) TEU, read in conjunction with Article 2 TEU and Article 47 of the Charter of Fundamental Rights of the European Union, precludes a provision or a practice of national law of a Member State according to which national courts have no jurisdiction to examine the conformity with EU law of a provision of national law that has been found to be constitutional by a decision of the constitutional court of that Member State. That same principle precludes the initiation of disciplinary proceedings and the application of disciplinary penalties in respect of a judge arising from such an examination.


( 1 ) Original language: English.

( 2 ) Which concerned 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 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).

( 3 ) See point 5 of the operative part of that judgment.

( 4 ) Decision No 390 of 8 June 2021 concerning an objection of unconstitutionality raised in respect of Articles 881 to 889 of Law No 304/2004 on the organisation of the judiciary, as well as in respect of Government Emergency Ordinance No 90/2018 introducing certain measures relating to the functioning of the Section for Investigation of Offences Committed within the Judiciary (Secţia pentru investigarea infracţiunilor din justiţie), published in Monitorul Oficial al României (Official Gazette of Romania) No 612 of 22 June 2021 (‘Decision No 390/2021’).

( 5 ) Official Gazette of Romania, part I, No 826 of 13 September 2005.

( 6 ) See Decision No 390/2021, paragraph 81.

( 7 ) See Decision No 390/2021, paragraph 83.

( 8 ) See Decision No 390/2021, paragraph 85.

( 9 ) Order of the President of the Court of 19 October 2018, Wightman and Others (C‑621/18, not published, EU:C:2018:851, paragraph 10 and the case-law cited).

( 10 ) Judgment of 26 March 2020, Miasto Łowicz and Prokurator Generalny (C‑558/18 and C‑563/18, EU:C:2020:234, paragraphs 43 to 45 and the case-law cited).

( 11 ) See the judgment in Asociaţia Forumul Judecătorilor din România, paragraph 133 and the case-law cited.

( 12 ) The Court stated first, that the disputes in the main proceedings were not substantively connected to EU law, in particular to the second subparagraph of Article 19(1) TEU to which the questions referred related. The referring courts were not therefore required to apply that law, or that provision, in order to determine the substance of the disputes before them. It stated, secondly, that the questions referred did not concern the interpretation of procedural provisions of EU law which the referring courts were required to apply in order to deliver judgment. Thirdly, an answer by the Court to the questions referred was incapable of providing the referring courts with an interpretation of EU law that would allow them to resolve procedural questions of national law before being able to rule on the substance of the disputes before them. Judgment of 26 March 2020, Miasto Łowicz and Prokurator Generalny (C‑558/18 and C‑563/18, EU:C:2020:234, paragraphs 49 to 53).

( 13 ) Judgment of 26 March 2020, Miasto Łowicz and Prokurator Generalny (C‑558/18 and C‑563/18, EU:C:2020:234, paragraph 54). Despite finding that the questions in the cases giving rise to that judgment were inadmissible, the Court held that provisions of national law that expose national judges to disciplinary proceedings as consequence of submitting a reference to the Court for a preliminary ruling are impermissible. The mere prospect of being the subject of disciplinary proceedings by reason of making such a reference is likely to undermine the effective exercise by national judges of their discretion to refer matters to the Court and the functions of the referring court as regards the application of EU law. Judgment of 26 March 2020, Miasto Łowicz and Prokurator Generalny (C‑558/18 and C‑563/18, EU:C:2020:234, paragraph 58). The Court further observed that, in such circumstances, the national measure or practice could ground an action for failure to fulfil obligations. Judgment of 26 March 2020, Miasto Łowicz and Prokurator Generalny (C‑558/18 and C‑563/18, EU:C:2020:234, paragraph 47).

( 14 ) See the approach proposed in the Opinion of Advocate General Bobek in IG and Others (C‑379/19, EU:C:2021:174, point 40).

( 15 ) See by analogy, judgment of 20 April 2021, Repubblika (C‑896/19, EU:C:2021:311, paragraph 33).

( 16 ) In his Opinion in IG and Others (C‑379/19, EU:C:2021:174, point 40) Advocate General Bobek considered that questions relating to the disciplinary liability of national judges who have made a request for a preliminary ruling are ‘necessary’ to adjudicate upon the proceedings before them where that liability may be triggered as there would be few preliminary references otherwise. See by analogy, judgment of 5 July 2016, Ognyanov (C‑614/14, EU:C:2016:514, paragraph 25). In contrast, in his opinion in IS (Illegality of the order for reference) (C‑564/19, EU:C:2021:292, point 97), Advocate General Pikamäe considered that a question referred for preliminary ruling as to whether Article 19(1) TEU, Article 47 of the Charter and Article 267 TFEU must be interpreted as precluding a national law which allows disciplinary proceedings to be brought against a judge on the ground that he or she submitted a request for a preliminary ruling to the Court was inadmissible where the main proceedings did not concern bringing disciplinary proceedings against the referring judge, the status of the judiciary, or provisions concerning the disciplinary regime for judges. Moreover, in that case, a decision to initiate disciplinary proceedings had been withdrawn and the proceedings terminated. Advocate General Pikamäe also conceded that the question relating to disciplinary proceedings might be admissible where it could not be disassociated from another, admissible, question by treating both questions together as an ‘indivisible whole’. Opinion of Advocate General Pikamäe in IS (Illegality of the order for reference) (C‑564/19, EU:C:2021:292, point 98).

( 17 ) See also judgment of 21 December 2021, Euro Box Promotion and Others (C‑357/19, C‑379/19, C‑547/19, C‑811/19 and C‑840/19, EU:C:2021:1034, paragraph 140). In Case C‑379/19, which arose in the context of criminal proceedings relating inter alia to corruption offences, the defendants sought to exclude evidence in accordance with the rulings in a number of judgments of the Curtea Constituțională (Constitutional Court). The referring court had doubts as to the compatibility of those judgments – non-compliance with which may make the judges taking part in the decision liable to disciplinary action pursuant to Article 99(ș) of Law No 303/2004 – with the requirement of independence of the courts. The referring court decided to refer questions to the Court of Justice, on the interpretation of inter alia the second subparagraph of Article 19(1) TEU. The Court held those questions admissible.

( 18 ) Judgment of 11 December 2018, Weiss and Others (C‑493/17, EU:C:2018:1000, paragraph 19 and the case-law cited).

( 19 ) See the judgment in Asociaţia Forumul Judecătorilor din România , paragraph 223.

( 20 ) By virtue of the principle of the primacy of EU law, a Member State’s reliance on rules of national law, even of a constitutional order, cannot be allowed to undermine the unity and effectiveness of EU law. In accordance with well-established case-law, the effects of the primacy of EU law are binding on all Member State organs, without being impeded by provisions of domestic law, including constitutional provisions. Judgments of 8 September 2010, Winner Wetten (C‑409/06, EU:C:2010:503, paragraph 61), 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 157). See also the judgment in Asociaţia Forumul Judecătorilor din România, paragraphs 243 et seq. in particular paragraph 251 and the case-law cited.

( 21 ) The Court stated that the second subparagraph of Article 19(1) TEU imposes on the Member States a clear and precise obligation as to the result to be achieved. That obligation is not subject to any condition as regards the independence that must characterise courts called upon to interpret and apply EU law. The judgment in Asociaţia Forumul Judecătorilor din România, paragraph 250 and the case-law cited.

( 22 ) The judgment in Asociaţia Forumul Judecătorilor din România , paragraphs 242 to 252.

( 23 ) Based on Article 2 and the second subparagraph of Article 19(1) TEU and Decision 2006/928.

( 24 ) Judgment of 14 September 2017, Trustees of the BT Pension Scheme (C‑628/15, EU:C:2017:687, paragraph 54).

( 25 ) See to that effect, judgment of 9 March 1978, Simmenthal (106/77, EU:C:1978:49, paragraph 22). For a more recent iteration of the rule see the order of the Vice-President of the Court of 14 July 2021, Commission v Poland (C‑204/21 R, EU:C:2021:593, paragraph 173).

( 26 ) See by analogy, judgment of 5 October 2010, Elchinov (C‑173/09, EU:C:2010:581, paragraph 30).

( 27 ) See by analogy, judgments of 19 November 2019, A. K. and Others (Independence of the Disciplinary Chamber of the Supreme Court) (C‑585/18, C‑624/18 and C‑625/18, EU:C:2019:982, paragraph 166), and of 2 March 2021, A.B. and Others (Appointment of judges to the Supreme Court – Actions) (C‑824/18, EU:C:2021:153, paragraph 79). In paragraph 173 of the Opinion 2/13 (Accession of the European Union to the ECHR) of 18 December 2014 (EU:C:2014:2454), the Court recalled that the Member States are obliged, by reason, inter alia, of the principle of sincere cooperation set out in the first subparagraph of Article 4(3) TEU, to ensure, in their respective territories, the application of and respect for EU law. In addition, pursuant to the second subparagraph of Article 4(3) TEU, the Member States are to take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the EU.

( 28 ) Including, for example, the status of the State as a Republic (judgment of 22 December 2010, Sayn-Wittgenstein (C‑208/09, EU:C:2010:806, paragraph 92)) and the division of competences within a Member State together with the internal reorganisation of those powers (judgments of 21 December 2016, Remondis (C‑51/15, EU:C:2016:985, paragraphs 40 and 41), and of 18 June 2020, Porin kaupunki (C‑328/19, EU:C:2020:483, paragraph 46)).

( 29 ) Judgment of 5 June 2018, Coman and Others (C‑673/16, EU:C:2018:385, paragraph 43).

( 30 ) While the Curtea Constituțională (Constitutional Court) specifically refers to ‘constitutional identity’, in my view, the term national identity referred to in Article 4(2) TEU is an umbrella concept which may cover both societal/cultural and political/constitutional identity. Reliance on national identity under Article 4(2) TEU does not, however, permit a Member State to diverge from the core, fundamental values contained in Article 2 TEU, including the rule of law. The protection of national identity therefore will not justify non-compliance with those values. Moreover, national identity, in the guise of constitutional identity, is incapable of constituting an absolute exception to or reservation from the principle of primacy of EU law.

( 31 ) See by analogy, judgment of 5 June 2018, Coman and Others (C‑673/16, EU:C:2018:385, paragraphs 44 and 46).

( 32 ) It is settled case-law, as is apparent from Article 49 TEU, which provides the possibility for any European State to apply to become a member of the European Union, that the European Union is composed of States which have freely and voluntarily committed themselves to the common values referred to in Article 2 TEU, which respect those values and which undertake to promote them. EU law is based on the fundamental premiss that each Member State shares with all the other Member States, and recognises that those Member States share with it, those same values. Judgment of 24 June 2019, Commission v Poland (Independence of the Supreme Court) (C‑619/18, EU:C:2019:531, paragraph 42 and the case-law cited).

( 33 ) See to that effect, Opinion of Advocate General Kokott in V.М.А. (C‑490/20, EU:C:2021:296, point 73). See also by analogy, judgment of 5 June 2018, Coman and Others (C‑673/16, EU:C:2018:385, paragraph 47).

( 34 ) The fact that the European Community/Union is based on the rule of law was first mentioned in the case-law of the Court in judgment of 23 April 1986, Les Verts v Parliament (294/83, EU:C:1986:166, paragraph 23).

( 35 ) For a systematic and up-to-date overview of the recent case-law of the Court, see Pech, L., and Kochenov, D., Respect for the Rule of Law in the Case Law of the European Court of Justice: A Casebook Overview of Key Judgments since the Portuguese Judges Case, SIEPS, Stockholm, 2021:3.

( 36 ) Judgment of 9 July 2020, Land Hessen (C‑272/19, EU:C:2020:535, paragraph 45 and the case-law cited).

( 37 ) The judgment in Asociaţia Forumul Judecătorilor din România , paragraphs 194 and 195 and the case-law cited.

( 38 ) 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. Thus, the second subparagraph of Article 19(1) TEU is intended inter alia to apply to any national court or tribunal which can rule on questions concerning the application or interpretation of EU law in the fields covered by that law (judgment of 26 March 2020, Miasto Łowicz and Prokurator Generalny, C‑558/18 and C‑563/18, EU:C:2020:234, paragraphs 33 and 34 and the case-law cited). The scope of Article 47 of the Charter, in so far as the action of the Member States is concerned, is defined in Article 51(1) thereof, according to which the provisions of the Charter are addressed to the Member States when they are implementing EU law. Judgment of 14 June 2017, Online Games and Others (C‑685/15, EU:C:2017:452, paragraph 55).

( 39 ) Judgment of 19 November 2019, A. K. and Others (Independence of the Disciplinary Chamber of the Supreme Court) (C‑585/18, C‑624/18 and C‑625/18, EU:C:2019:982, paragraph 167 and the case-law cited).

( 40 ) Judgment of 19 November 2019, A. K. and Others (Independence of the Disciplinary Chamber of the Supreme Court) (C‑585/18, C‑624/18 and C‑625/18, EU:C:2019:982, paragraph 168 and the case-law cited). 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, 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 reaffirmed by Article 47 of the Charter. Judgments of 2 March 2021, A.B. and Others (Appointment of judges to the Supreme Court – Actions) (C‑824/18, EU:C:2021:153, paragraph 110) and of 21 December 2021, Euro Box Promotion and Others (C‑357/19, C‑379/19, C‑547/19, C‑811/19 and C‑840/19, EU:C:2021:1034, paragraph 219).

( 41 ) Judgment of 20 April 2021, Repubblika (C‑896/19, EU:C:2021:311, paragraphs 39 to 45).

( 42 ) Which requires that Member States implement EU law in order for the Charter to apply.

( 43 ) See by analogy, judgment of 20 April 2021, Repubblika (C‑896/19, EU:C:2021:311, paragraphs 42 to 45). While Article 47 of the Charter helps to ensure respect for the right to effective judicial protection of any individual relying, in a given case, on a right which he or she derives from EU law, the second subparagraph of Article 19(1) TEU seeks to ensure that the system of legal remedies established by each Member State guarantees effective judicial protection in the fields covered by EU law. Judgment of 20 April 2021, Repubblika (C‑896/19, EU:C:2021:311, paragraph 52).

( 44 ) Recent case-law appears to countenance that safeguarding judicial independence does not exclude any possibility that a judge may, in certain very exceptional cases, be liable to discipline as a consequence of his or her judicial decisions: judgment of 21 December 2021, Euro Box Promotion and Others (C‑357/19, C‑379/19, C‑547/19, C‑811/19 and C‑840/19, EU:C:2021:1034, paragraphs 238 to 240 and the case-law cited). In that judgment, the Court found that the impact of Article 99(ș) of Law No 303/2004, which makes ordinary national judges liable to discipline for a failure to comply with decisions of the Curtea Constituțională (Constitutional Court), is not limited to such very exceptional cases. The Court thus held that Article 2, the second subparagraph of Article 19(1) TEU and Decision 2006/928 preclude provisions of national law such as Article 99(ș) of Law No 303/2004 in so far as it provides that any infringement of the decisions of a national constitutional court by ordinary national judges imposes disciplinary liability upon them. Judgment of 21 December 2021, Euro Box Promotion and Others (C‑357/19, C‑379/19, C‑547/19, C‑811/19 and C‑840/19, EU:C:2021:1034, paragraphs 241 and 242). The Court also held that the primacy of EU law precludes disciplinary sanctions being imposed upon national judges where, in the exercise of their ordinary jurisdiction, they take the view, upon receipt of an answer to a request for a preliminary ruling under Article 267 TFEU, that the case-law of its national constitutional court is contrary to EU law and proceeds to disappy it. Judgment of 21 December 2021, Euro Box Promotion and Others (C‑357/19, C‑379/19, C‑547/19, C‑811/19 and C‑840/19, EU:C:2021:1034, paragraph 260).

( 45 ) Judgment of 26 March 2020, Miasto Łowicz and Prokurator Generalny (C‑558/18 and C‑563/18, EU:C:2020:234, paragraph 36 and the case-law cited).

( 46 ) Judgment of 21 January 2021, Whiteland Import Export (C‑308/19, EU:C:2021:47, paragraph 31 and the case-law cited).

( 47 ) I would underscore the use of the imperative ‘shall’ in the text of the second subparagraph of Article 19(1) TEU.

( 48 ) Judgment of 6 March 2018, Achmea (C‑284/16, EU:C:2018:158, paragraph 36). For the link between Article 4(3) TEU and the second subparagraph of Article 19(1) TEU, see judgment of 27 February 2018, Associação Sindical dos Juízes Portugueses (C 64/16, EU:C:2018:117, paragraphs 34 and 35).

( 49 ) Judgment of 21 January 2021, Whiteland Import Export (C‑308/19, EU:C:2021:47, paragraph 30 and the case-law cited).

( 50 ) Judgment of 30 September 2003, Köbler (C‑224/01, EU:C:2003:513, paragraph 50).

( 51 ) Article 19(1) TEU also reflects the autonomous nature of the EU legal order. See judgment of 6 March 2018, Achmea (C‑284/16, EU:C:2018:158, paragraphs 33 to 36 and the case-law cited).

( 52 ) See to that effect, judgment of 5 November 2019, Commission v Poland (Independence of ordinary courts) (C‑192/18, EU:C:2019:924, paragraphs 104 and 105 and the case-law cited).

( 53 ) Judgment of 24 June 2019, Commission v Poland (Independence of the Supreme Court) (C‑619/18, EU:C:2019:531, paragraphs 71 and 72).

( 54 ) See to that effect, judgment of 8 September 2010, Winner Wetten (C‑409/06, EU:C:2010:503, paragraphs 56 and 57).


Citations

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