On Wednesday, September 23, the Advocate General of the Court of Justice of the European Union (CJEU), Michal Bobek, presented his conclusions in the first six cases referred to the Court of Justice by the Romanian courts.
In essence, according to him, the interim appointment of the head of the Judicial Inspection and the national norms regarding the establishment of a specific prosecutor’s office with exclusive competence for the investigation of crimes committed by judges and prosecutors, such as the Section for the Investigation of Criminal Offences in the Judiciary (SIIJ), are contrary to the European Union law.
These conclusions propose the same approach that the Romanian Judges Forum has outlined over the past 3 years, given that the most representative association of Romanian magistrates is basically at the origin of the series of referrals to the CJEU.
The founder and co-president of the Romanian Judges Forum, Judge Dragos Calin, from the Bucharest Court of Appeal, explains for Ziare.com how the Romanian magistrates came to refer to the CJEU, what the stake of the European court proceedings is and what steps should be taken further to “fix” the laws of justice.
The most important statements:
– It was a rational, logical and coherent approach, despite being “compelled” by the despair existing at that time in the entire judicial system (autumn 2018-early 2019).
– At present, 14 such applications have been registered with the CJUE, and solutions are expected during 2020.
– The Romanian courts have referred to the CJEU in relation to the interpretation of EU law, in the context of legislative amendments or decisions of the Constitutional Court.
– In the first six cases, the ruling of the Court of Justice is expected, probably very soon.
– The “counter-reform” of 2018-2019 affected the pillars of meritocracy in the Romanian judiciary.
– However, we need a majority political will for urgent legislative measures, well-thought-out legislative projects, accepted and requested by the vast majority of Romanian judges and prosecutors (despite the opposition of a provisional SCM), an active ministry of justice, independent of factions which may exist in the judiciary and working tirelessly to create the necessary framework for the optimal functioning of the rule of law.
– The lack of legislative measures cannot be entirely replaced by challenging in court the administrative provisions harmful to the judiciary, precisely because of the needed urgency.
About the “despair” of the system
Ziare.com: You are the one to have thought and created the requests for preliminary ruling. How did you come up with the idea of referring to the Court of Justice of the European Union?
Dragos Calin: It was a rational, logical and coherent approach, despite being “compelled” by the despair existing at that time in the entire judicial system (autumn 2018-early 2019). Let’s not forget that judges and prosecutors came out weekly on the steps of court and prosecutor’s office buildings, in an attempt to counter the assault on the foundations of the rule of law, and disciplinary actions or criminal investigations were launched almost daily against many of them (and especially against those who reacted against the amendments to the laws of justice or who held leadership and decision-making positions in PICCJ, DNA, ICCJ).
It was the period when the Romanian Judges’ Forum had practically obtained two opinions from the Venice Commission, through the Parliamentary Assembly of the Council of Europe, because all subjects of referral in Romania had refused to refer to the Venice Commission (the President of Romania – in the first phase, then the Parliament, the Government). There were also the GRECO reports, and there were also taking shape the opinions of the Consultative Council of European Judges and of the Consultative Council of European Prosecutors, obtained through our efforts as well.
We had practically managed to build the backbone to support a judicial approach to the CJUE. Step by step. Therefore, it was extremely simple to design the requests for referral to the Court of Justice of the European Union as well. Being basically, together with my colleagues, at the origin of all these steps and actually being in a daily dialogue with the relevant international entities, I quickly thought of a form through which all successive, numerous and extremely well-motivated recommendations, might also have real effects, in the absence of the will of the Romanian legislative and executive powers. It takes vision, you have to think of the next steps in great detail, to take into account inherent difficulties, including the mental resistance of the people around you, not to mention the daily attacks of the media acting like a “jukebox”.
Ziare.com: Were there skeptical colleagues as well?
Dragos Calin: There were some skeptical colleagues, including some Romanian academics with whom I had a dialogue, however the logic that I have inferred from the first relevant decision of the CJEU in these respects (Associacao Sindical dos Juizes Portugueses, case C 64/16) gave me confidence and I quickly imagined situations in which the CJEU could develop its own case law, interpreting the requirements of the rule of law, taking into account the values and principles of the European Union law established by Art. 2 and 19 par.(1) of the Treaty on European Union (TEU) and by Art. 47 of the Charter of Fundamental Rights.
Also, during the same period, I was having conversations with colleagues in Poland and we encouraged each other to follow the same path. Obviously, the serious and long-term studies in the field of EU law and the laborious publishing activity in this field have also helped me a lot.
The first steps
Ziare.com: How do you explain the referral in waves to the Court of Justice of the European Union by the Romanian courts?
Dragos Calin: On 29 January 2019, upon the request of the Romanian Judges Forum Association, a very brave judge from the Olt Tribunal ordered, for the first time for the “laws of justice”, the referral to the Court of Justice of the European Union with a request for a preliminary ruling (regarding the appointment by Government Emergency Ordinance of the interim leadership of the Judicial Inspection). The Judicial Inspection tried to block the action, by filing an application for change of venue. It was the first referral of this type, which determined an extraordinary emulation from several courts and extraordinary courage from the fellow judges who made the referrals, one of them (Mrs. Georgeta Ciungan) being under a disciplinary investigation, surprisingly, after a complaint filed by the same lawyer who will represent the SCM before the Court of Justice in the January 2020 pleadings in the first six cases.
I could not have expected so many preliminary questions sent by the Romanian courts, but the attempts of the Judicial Inspection and of the Superior Council of Magistracy to change the venue of the trial of the cases in which they were requested (let’s not forget that the SCM president at that time, Mrs. Lia Savonea, signed the request by which the SCM requested even the annulment of the decision of referral to the CJUE regarding SIIJ, a request rejected by ICCJ only in June 2020) determined the individual chain reactions of many Romanian judges, and the initial request of the Romanian Judges’ Forum was rapidly appropriated. Both regarding the “laws of justice” and, later, in relation to some CCR decisions, most of the preliminary referrals having followed the model of the Romanian Judges’ Forum.
At present, 14 such applications have been registered with the CJUE, and solutions are expected during 2020, at least in the first six preliminary referrals, in which the Grand Chamber has organized the pleading session, and the conclusions of the Advocate General, Mr. Bobek, were already published yesterday.
Ziare.com: Can you detail?
Dragos Calin: The Romanian courts have referred to the CJEU in relation to the interpretation of EU law, in the context of legislative amendments or decisions of the Constitutional Court [interpretation of the content, nature and time scope of the Mechanism for Cooperation and Verification; the obligation of the Member States to establish the necessary measures for an effective legal protection in the areas regulated by the Union law, namely guarantees of an independent disciplinary procedure for Romanian judges, removing any risk related to political influence on disciplinary procedures, such as the direct appointment by the Government of the Judicial Inspection management, even if provisional, or the establishment and organization of the Section for Investigating Criminal Offences in the Judiciary, thorough the possibility of indirectly exerting pressure on the magistrates; the interpretation of Art. 19 par. (1) of TEU, Art. 325 par. (1) TFEU, Art. 1 par. (1) points a) and b) and Art. 2 par. (1) of the Convention drawn up on the basis of Article K.3 of the Treaty on European Union, on the protection of the European Communities’ financial interests and the principle of legal certainty, in the sense that they oppose the adoption of a decision by a body outside the judiciary, the Constitutional Court of Romania, which assesses the legality of forming court panels with the consequence of creating the necessary premises for admitting extraordinary remedies against final court decisions delivered within a period of time; the interpretation of Art. 47 par. 2 of the Charter of Fundamental Rights of the European Union in the sense of opposing the finding by a body outside the judiciary of the lack of independence and impartiality of a panel including a judge with a management position and who was not randomly appointed, but on the basis of a transparent rule, known and undisputed by the parties, a rule applicable in all the cases of such panel, the adopted decision being mandatory according to the national law; the interpretation of the principle of independence of judges, in relation to national norms that define judicial error; the interpretation of Art. 2 and Art.19 par. (1) TUE, and Art. 47 of the Charter of Fundamental Rights of the European Union as opposing the intervention of a constitutional court (a body which is not a court of law, according to national law) regarding the way in which the supreme court interpreted and applied the infraconstitutional legislation in the activity of formation of court panels in matters of corruption].
How the CJEU can change laws
Ziare.com: What will be the next steps at the Court of Justice of the European Union?
Dragos Calin: In the first six cases, the ruling of the Court of Justice is expected, probably very soon. In the other cases, due to the pandemic and the existing traffic restrictions (14 days of quarantine for any person returning to Romania from Luxembourg), the phase that involved the presentation of pleadings was replaced by a set of written answers to questions formulated by the Court, and these answers are to be submitted by almost mid-October. Then, the conclusions of the Advocate General will be published in those referrals as well, and, finally, the decision of the Court of Justice will be delivered.
Ziare.com: What could a decision of the Court of Justice finding that the amendments brought to the laws of justice in 2018-2019, which were massively challenged by magistrates and international organizations, are contrary to European Union law, change in the Romanian judicial system?
Dragos Calin: It will be a real earthquake. For example, it will mean the end of SIIJI. The supremacy/priority of application of the European Union law represents a fundamental principle, ever since the decision of the Court of Justice of July 15, 1964, in the case 6/64, Costa v. ENEL, and also refers to the decisions delivered by the CJUE. Also, the national court which must apply, within its jurisdiction, the provisions of the European Union law, has the obligation to ensure the full effect of these provisions, removing, ex officio if necessary, the application of any contrary provision of the national law without having to request or wait for the prior removal of such national provision by legislative or by any other constitutional procedure.
The national judge is the first European judge who is required to ensure the effectiveness of the application of EU law, and the priority of EU law imposes to and, implicitly, allows the national judge to ignore even a Constitutional Court decision that would deprive of useful effect the effective protection of the financial interests of European Union. Also, if it were appropriated by the Court of Justice, the interpretation proposed by Mr. AG Bobek would provide the Constitutional Court of Romania with guidelines to take into account the European Commission Decision establishing the CVM, in relation to the principle of sincere cooperation, provided for in art. 4 par.3 of the Treaty on European Union.
There are numerous exceptions of unconstitutionality pending before the Romanian Constitutional Court regarding not only the matters which triggered the wave of referrals to the CJEU, but also, for example, the unconstitutional procedures for promoting judges at the ICCJ or at courts of appeal or courts of first instance, because this “counter-reform” of the years 2018-2019 has also affected the pillars of meritocracy in the Romanian judiciary, and the tough exams in this profession were replaced with selections made based on subjective interviews.
“The magistracy has resisted the attacks”
Ziare.com: Can the lack of urgent legislative measures to “repair” the laws of justice be replaced by challenging in court the provisions harmful to the judiciary?
Dragos Calin: The Romanian Judges’ Forum Association challenged en bloc the administrative acts that implemented the legal provisions newly introduced in the laws of justice, strongly criticized by all relevant international organizations. There are more than 10 cases pending before Romanian courts, with complex complaints to the CCR or the CJEU. It is the duty of honest magistrates to ensure that they perform their profession in an independent, impartial, meritocratic environment. Otherwise, we hold such title in vain.
To a large extent, the judiciary has done its duty in recent years, has obstinately resisted attacks below the belt, and there is hope, it is possible to rebuild, the pillars are still standing. However, we need a majority political will for urgent legislative measures, well-thought-out legislative projects, accepted and requested by the vast majority of Romanian judges and prosecutors (despite the opposition of a provisional SCM), an active ministry of justice, independent of factions which may exist in the judiciary and working tirelessly to create the necessary framework for the optimal functioning of the rule of law.
The Romanian Judges’ Forum Association and the Initiative for Justice Association have repeatedly called for rapid reforms in the judiciary to align national law with the minimum requirements of the European Union law on the rule of law. Unfortunately, nothing has been done yet, under the justification of the lack of a parliamentary majority willing to rebuild legislation in this field.
The lack of legislative measures cannot be entirely replaced by challenging in court the administrative provisions that are harmful to the judiciary, precisely because of the needed urgency. However, it is not a trait of a functional rule of law that all organizational problems be resolved, ultima ratio, by judges.
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