THE HIGH COURT OF CASSATION AND JUSTICE – The panel for the settlement of points of law – Decision no. 15/2022

ROMANIA
THE HIGH COURT OF CASSATION AND JUSTICE
The panel for the settlement of points of law

Decision no. 15/2022                                              Case no. 2990/1/2021

Issued in public hearing today, 14 March 2022

Published in the Official Gazette, Part I no. 499 of 20 May 2022

Denisa-Angelica Stănişor – judge, president of the Administrative and Fiscal Disputes Division, president of the panel

Ionel Barbă – judge at the Administrative and Fiscal Disputes Division

Alina-Nicoleta Ghica-Velescu – judge at the Administrative and Fiscal Disputes Division

Mariana Constantinescu – judge at the Administrative and Fiscal Disputes Division

Adina Georgeta Ponea – judge at the Administrative and Fiscal Disputes Division

Adrian Remus Ghiculescu – judge at the Administrative and Fiscal Disputes Division

Doina Vişan – judge at the Administrative and Fiscal Disputes Division

Ana Roxana Tudose – judge at the Administrative and Fiscal Disputes Division

Beatrice Mariş – judge at the Administrative and Fiscal Disputes Division

Adriana Florina Secreţeanu – judge at the Administrative and Fiscal Disputes Division

Marius Ionel Ionescu – judge at the Administrative and Fiscal Disputes Division

Virginia Filipescu – judge at the Administrative and Fiscal Disputes Division

Claudia Marcela Canacheu – judge at the Administrative and Fiscal Disputes Division

  1. The panel for the settlement of points of law is legally established according to the provisions of Article 520 par. (6) of the Civil Procedure Code and of Article 36 par. (2)(b) of the Regulation on the organization and administrative functioning of the High Court of Cassation and Justice, republished, as subsequently amended (the Regulation).
  2. The hearing is presided by Judge Denisa-Angelica Stănişor, the president of the Administrative and Fiscal Disputes Division of the High Court of Cassation and Justice.
  3. Assistant magistrate Bogdan Georgescu, appointed in accordance with the provisions of Article 38 of the Regulation attends the court hearing.
  4. The High Court of Cassation and Justice – The panel for the settlement of points of law examined the referral submitted by the High Court of Cassation and Justice – Administrative and Fiscal Disputes Division in Case no. 391/39/2021.
  5. The assistant magistrate presents the report of the case, showing that the appellant in the case in which the referral was submitted formulated a point of view on the point of law and submitted to the casefile a request for suspension of the trial of the referral, under Article 413 par. (1) paragraph 11 of the Civil Procedure Code, until the date of the final settlement by the Court of Justice of the European Union (CJEU) of the referral sent by the Alba Iulia Court of Appeal – Administrative and Fiscal Disputes Division, by the Hearing Report of 10 March 2022, delivered in the Case no. 793/46/2021, under Article 267 of the Treaty on the Functioning of the European Union (TFEU), having as subject matter the following preliminary question: “Considering the provisions of Article 99 letter (ş) of Law no. 303/2004 on the status of judges and prosecutors, which provide for the initiation of disciplinary proceedings and disciplinary sanctions of judges for non-compliance with a decision of the Constitutional Court, is it necessary to consider that Article 19 par. (1) the second paragraph of the Treaty on European Union (TEU) with reference to Article 2 of TEU and Article 47 of the Charter of Fundamental Rights of the European Union, regarding the independence of judges, as well as the principle of sincere cooperation, provided by Article 4 of the TEU, must be interpreted as opposing the national provisions of an EU Member State, which deprive the national judge of the possibility to apply the European 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, published in the Official Journal of the European Union, series L no. 354 of 14 December 2006 (Decision 2006/928), and the reports drawn up by the Commission based on the decision, as interpreted by the Constitutional Court, by Decision no. 390/2021, given that the judge is called upon to leave national provisions unapplied ex officio if they contradict the European law and to give priority to the application of the European Union law, and the recitals of a Constitutional Court decision deprive the national judge of the possibility to apply the CJEU judgment which he/she considers to be a priority?”
  6. After deliberation, unanimously, the Panel for the settlement of points of law dismisses the request for suspension of the trial, holding that the conditions provided by Article 413 par. (1) paragraph 11 of the Civil Procedure Code are not met, because this referral of the High Court of Cassation and Justice for a preliminary ruling for the settlement of points of law is not, within the meaning of the mentioned provisions, a similar case to that before the Alba Iulia Court of Appeal in which the Court of Justice of the European Union was referred with a request for a preliminary ruling.
  7. As no other preliminary issues were raised, the president of the panel declared the debates closed and the panel is to rule on the referral.

THE HIGH COURT,

    deliberating on the point of law that is the subject matter of the referral, finds the following:

  1. The holder and subject of the referral
  2. By the Hearing Report of 24 November 2021, delivered in the Case no. 391/39/2021, the High Court of Cassation and Justice – Administrative and Fiscal Disputes Division ordered, under Article 519 of the Civil Procedure Code, the referral to the High Court of Cassation and Justice – Panel for the settlement of points of law in order to deliver a preliminary ruling to provide a solution in principle regarding the following points of law:

    In interpreting Article II of the Government Emergency Ordinance no. 77/2018 for supplementing Article 67 of Law no. 317/2004 regarding the Superior Council of Magistracy (Government Emergency Ordinance no. 77/2018), can it be considered that this procedure is liable to confer on the Government a direct power of appointment in these positions and to give rise to legitimate doubts regarding the use of the prerogatives and functions of the Judicial Inspectorate as an instrument of pressure on the activity of judges and prosecutors or of political control over this activity?

    If the answer to the first question is in the affirmative, is that regulation liable to affect the lawfulness of documents issued during the interim period?

   II Brief presentation of the trial

  1. The statement of claim
  2. By the action registered on 26 May 2021, before the Suceava Court of Appeal – Administrative and Fiscal Disputes Division, the plaintiffs AB and CD, against the defendants Judicial Inspectorate and EF – Chief Inspector of the Judicial Inspectorate, requested cancellation of the Order no. 134/2018 of the Chief Inspector of the Judicial Inspectorate regarding the approval of the Regulation on the organization and functioning of the Judicial Inspectorate (JI Order no. 134/2018), and, under Article 15 in relation to Article 14 of the Law on administrative disputes no. 554/2004, as subsequently amended and supplemented (Law no. 554/2004), requested the suspension of the enforcement of the administrative act that is the subject of the action for annulment.
  3. Within the meaning of Article 8 par. (1) of Law no. 554/2004, in the justification of the damage and of the legitimate interest of bringing an action for annulment, the plaintiffs showed that the legitimate interest of bringing the action for annulment is justified by the fact that, by the Resolution of 14 April 2021, the initiation of disciplinary investigation against them was ordered for committing the disciplinary offences provided by Article 99 letters a), b) and d) of Law no. 303/2004 regarding the status of judges and prosecutors, republished, as subsequently amended and supplemented (Law no. 303/2004), with the acts of disciplinary investigation performed based on the provisions of the JI Order no. 134/2018, and the damage consists in the fact that the sanctions provided by Article 100 of Law no. 303/2004 for the offences provided by Article 99 letters b) and d) of the same law are extremely serious, namely “demotion” or “exclusion from the magistracy”.
  4. In support of the action for annulment and of the request for suspension of enforcement, the plaintiffs submitted, in essence, the following arguments: (i) the JI Order no. 134/2018 is issued by a person who did not have the status required by law, that of chief inspector of the Judicial Inspectorate, legally appointed to the position, being issued in violation of the norms of functional competence. (ii) In relation to the considerations in paragraphs 177, 200 and 205 of the CJEU Judgment of 18 May 2021, delivered in the joined cases C-83/19, C-127/19, C-195/19, C-291/19, C-355/19 and C-397/19 (CJEU Judgment of 18 May 2021), constantly, in 2018 and 2019, the reports drawn up by the Commission pointed out the deficiency of the judicial system in Romania, consisting in the Government’s action of making appointments to the management positions of the body responsible for conducting disciplinary investigations and bringing disciplinary proceedings against the judges and prosecutors in violation of the ordinary appointment procedure laid down by national law. (iii) The defendant EF held the position of interim chief inspector in the period 1 September 2018-15 May 2019, under the Government Emergency Ordinance no. 77/2018, and signed the JI Order no. 134/2018 during the period when his term of office was not valid, according to the principle of the primacy of European Union law and the binding nature of the CJEU judgements. (iv) Considering the binding nature of the CJEU Judgment of 18 May 2021, the provisions of the Government Emergency Ordinance no. 77/2018 no longer apply, being contrary to the European Union law, therefore all documents issued during the period when he acted as a substitute to the chief inspector, including the JI Order no. 134/2018 or the documents for appointment to position of some inspectors selected on this basis, including the chief inspector, are null. (v) On 19 May 2021, the Section for Prosecutors in Disciplinary Matters of the Superior Council of Magistracy (SCM) found the nullity of the disciplinary proceedings filed by the Judicial Inspectorate against a magistrate, holding, in essence, that all the documents issued by EF, in the performance of the position of chief inspector of the Judicial Inspectorate, between 1 September 2018 – 14 May 2019, are absolutely null, as an effect of the CJEU Judgment of 18 May 2021.
  5. Defenses of the respondent Judicial Inspectorate
  6. In the merits of the action for annulment of the JI Order no. 134/2018, the defendant Judicial Inspectorate submitted the following defenses in support of the unfoundedness: (i) By the Judgment of 18 May 2021, CJEU did not rule on the unlawfulness of the administrative documents issued by the chief inspector of the Judicial Inspectorate between 1 September 2018-14 May 2019, but the regulatory document referred to in the question submitted to CJEU is the Government Emergency Ordinance no. 77/2018. (ii) The CJEU did not find the Government Emergency Ordinance no. 77/2018 to be inconsistent with the European Union law, but, generically, pointed out that the European rules preclude national regulations adopted by the government of a Member State which allow the latter to make interim appointments to the management positions of the judicial body responsible for conducting disciplinary investigations and bringing disciplinary proceedings against judges and prosecutors without following the ordinary appointment procedure laid down by national law, when this regulation is liable to give rise to reasonable doubt that the powers and functions of that body will be used as an instrument to exert pressure on, or political control over the activity of those judges and prosecutors. (iii) From the overall analysis of the recitals in the CJEU judgment, in particular those in paragraphs 205 and 206, it results that the European court held that it is up to the national court before which the European Union law is invoked to analyze whether, in practice, the national law in question complies with the standards imposed by the European rules in the light of the interpretation elements provided by the CJEU. (iv) In the case brought before the court, in relation to all the elements de facto and de jure, the regulatory document that is subject to the request for annulment is not liable to give rise to reasonable doubt that the powers and function of the chief inspector will be used as an instrument to exert pressure on, or political control over this activity. (v) The Government Emergency Ordinance no. 77/2018 does not contain actual provisions for the appointment of certain determined persons to the management positions of the Judicial Inspectorate, but supplements Law no. 317/2004 regarding the Superior Council of Magistracy, republished, as subsequently amended and supplemented (Law no. 317/2004), with norms with permanent applicability, not only at that moment, covering a legislative void. (vi) The regulatory solution adopted stipulates that the management position should be exercised by the same person who had held the position until then, following their appointment according to the ordinary procedure provided by national law, therefore the ordinary procedure of appointing the chief inspector was not violated, as long as, at the time of the adoption of the Government Emergency Ordinance no. 77/2018, the domestic legislation did not regulate the situation where the terms of offices of the positions of chief inspector and deputy chief inspector in the Judicial Inspectorate expired before the completion of the competitions for filling these positions, or the possibility of holding such management positions as a substitute in case they become vacant for other reasons. (vii) The person who ensured the interim management of the Judicial Inspectorate, namely the chief inspector whose mandate had expired, was later appointed in the same position, based on the ordinary procedure provided by law.
  7. Judgment of the first instance court
  8. By the Civil Sentence no. 59 of 14 July 2021, the Suceava Court of Appeal – Administrative and Fiscal Disputes Division dismissed, as unfounded, the action filed by the plaintiffs AB and CD, against the defendants Judicial Inspectorate and EF – chief inspector of the Judicial Inspectorate, for the following reasons: (i) The only reason for the challenged document to be unlawful is the fact that the defendant EF, chief inspector in the Judicial Inspectorate and signatory of the JI Order no. 134/2018, did not have the status required by law to issue such a document, as he was a substitute in the management of the Inspectorate, and this way of ensuring the management of the institution is in disagreement with the European Union law, as explained by the CJEU Judgment of 18 May 2021. (ii) Indeed, at the date of issuance of the JI Order no. 134/2018, the term of office of the defendant EF at the management of the Judicial Inspectorate had ended, but he continued to hold the position under the provisions of Articles I and II of the Government Emergency Ordinance no. 77/2018. (iii) In relation to the recitals in paragraphs 201 and 206 of the CJEU Judgment of 18 May 2021, the Government Emergency Ordinance no. 77/2018 is neither liable to confer the Government a direct power of appointment to the position of chief inspector of the Judicial Inspectorate, nor can it give rise to doubt that the powers and functions of the Judicial Inspectorate will be used as instrument to exert pressure on the activity of judges and prosecutors or political control over this activity. (iv) The performance of management positions by substitutes is a common procedure in the civil service system, meeting the requirements of ensuring the coordination of the institution in the case of vacancy of that position, for various reasons, as even the CJEU holds that substituting, in situations such as the present one, is an acceptable procedure which, per se, may not generate doubt of the above-mentioned type (paragraph 203 of the judgment). (v) As regards the temporary holder of this position: a) the person in question is a judge, and the provisions of Article 124 par. (3) of the Constitution and all national regulations provide sufficient guarantees to protect the independence of magistrates from any interference, including political; b) the person in question was appointed following a competition organized by the SCM, in the position of judicial inspector, and, after participating in another competition also organized by the SCM, was appointed as chief inspector, which excludes the influence of some political factors; c) after the expiry of the first term of office in the management of the Judicial Inspectorate, the Government Emergency Ordinance no. 77/2018 was adopted, which regulated the interim performance of the management position, without however appointing a certain person, but establishing that the position will be held temporarily, until it is occupied under the law, by the chief inspector, being obviously preferable that the temporary situation be managed by the former chief, who is aware of his duties in this capacity; d) since both the status of judge of the person in question and the procedure of appointment to the position provided guarantees regarding the absence of any external interference, there are no elements that raise doubts regarding the interference of the political factor in the appointment procedure under analysis. Moreover, by the SCM Decision no. 82/2019, the same person was appointed for a new term of office as chief inspector, starting with 15 September 2019. (vi) Therefore, the interim performance of the position of chief inspector meets the requirements related to the guarantees of independence and impartiality that must be ensured for judges, as outlined by the CJEU caselaw.
  9. Appeal filed against the first instance court judgment
  10. Against the sentence mentioned in paragraph II letter C, an appeal was filed by the plaintiffs AB and CD, requesting the admission of the appeal, the reversal of the appealed sentence and, in retrial, the admission of the statement of claim, reiterating, in essence, the submissions in the statement of claim. The appeal was registered before the High Court of Cassation and Justice – Administrative and Fiscal Disputes Division under no. 391/39/2021.
  11. The request of referral of the High Court of Cassation and Justice for a preliminary ruling
  12. On 21 September 2021, in the Case no. 391/39/2021 pending before the High Court of Cassation and Justice – Administrative and Fiscal Disputes Division, the application submitted by the respondent-defendant the Judicial Inspectorate regarding the referral to the High Court of Cassation and Justice – Panel for the settlement of points of law, under the provisions of Article 519 of the Civil Procedure Code was registered.

   III. Regulatory provisions subject to interpretation

  1. The provisions of the domestic law that are the subject of the referral are contained in the Government Emergency Ordinance no. 77/2018 for supplementing Article 67 of Law no. 317/2004 regarding the Superior Council of Magistracy, which provides the following:

    ” Art. I. –   In Article 67 of Law no. 317/2004 regarding the Superior Council of Magistracy, republished in the Official Gazette of Romania, Part I, no. 628 of 1 September 2012, as subsequently amended, two new paragraphs are inserted after paragraph (6), namely paragraphs (7) and (8), with the following content:

    ‘ (7) Where the position of chief inspector or deputy chief inspector, as applicable, of the Judicial Inspectorate becomes vacant as a result of expiry of the term of office, the chief inspector or deputy chief inspector, as applicable, whose term of office has expired will act as substitute until the date on which that position is filled on the terms laid down by the legislation.

   (8) Where the term of office of the chief inspector ends for a reason other than expiry of the term of office, the deputy chief inspector will act as substitute until the date on which that position is filled on the terms laid down by the legislation. Where the term of office of the deputy chief inspector ends for a reason other than expiry of that term, a judicial inspector appointed by the chief inspector will act as substitute until the date on which that position is filled on the terms laid down by the legislation. ‘

   Art. II. –   The provisions of Article 67 par. (7) of Law No 317/2004 on the Supreme Council of the Judiciary, republished, as subsequently amended and supplemented by this emergency ordinance, shall also apply to situations in which the position of chief inspector or of deputy chief inspector, as applicable, of the Judicial Inspectorate is vacant on the date on which this emergency ordinance comes into force.”

  1. Point of view of the parties regarding the point of law
  2. The appellant-plaintiff AB expressed his point of view that the points of law in relation to which the referral is submitted were sufficiently clarified by the CJEU Judgment of 18 May 2021, for which reason the Panel for the settlement of points of law could only rule whether the CJEU Judgment and, implicitly the European Union law, are binding and apply with priority over the contrary provisions in the national law, in the light of Article 148 par. (2) of the Constitution.
  3. The respondent-defendant Judicial Inspectorate expressed its point of view in the sense that the Government Emergency Ordinance no. 77/2018 is not liable to give rise to reasonable doubt that the powers and functions of the Judicial Inspectorate will be used as an instrument to exert pressure on judges and prosecutors, reiterating the arguments in the statement of defense presented in point II letter B of this decision.
  4. Point of view of the referring court
  5. The referring court argued that the admissibility conditions are met in relation to the provisions of Article 519 of the Civil Procedure Code and considered that the point of law to be referred to the High Court of Cassation and Justice – Panel for the settlement of points of law in order to deliver a preliminary ruling, needs to be reformulated, in the sense shown in paragraph 8 of this decision.
  6. With regard to the point of law submitted for settlement, the referring court expressed its opinion in the sense that the procedure regulated by Article II of the Government Emergency Ordinance no. 77/2018 is not liable to confer on the Government a direct power of appointment in these positions and to give rise to reasonable doubts regarding the use of the prerogatives and functions of the Judicial Inspectorate as an instrument of pressure on the activity of judges and prosecutors or of political control over this activity.
  7. The case law and the theoretical points of view of national courts
  8. No judicial practice benchmarks have been identified in the case law of the High Court of Cassation and Justice regarding the point of law submitted for settlement.
  9. The Courts of Appeal of Bacău, Braşov, Cluj, Bucharest, Constanţa, Craiova, Galaţi, Iaşi, Oradea, Piteşti, Ploieşti, Târgu Mureş and Timişoara have informed that, in their territorial jurisdiction, no judicial practice regarding the points of law submitted for settlement has been identified.
  10. The Suceava Court of Appeal communicated the Civil Judgment no. 59 of 14 July 2021, delivered in the Case no. 391/39/2021 (presented in paragraph II letter C of this decision) and the Civil Judgement no. 73 of 4 October 2021, delivered in the Case no. 390/39/2021, which contains recitals similar to the first mentioned judgment.
  11. Some courts have communicated theoretical points of view, not supported by judicial practice, in the sense that the Government Emergency Ordinance no. 77/2018 is not liable to confer on the Government a direct power of appointment in the vacant management positions of chief inspector or, as the case may be, deputy chief inspector of the Judicial Inspectorate and to give rise to reasonable doubts regarding the use of the prerogatives and functions of the Judicial Inspectorate as an instrument of pressure on, or political control over the activity of judges and prosecutors, submitting arguments similar to those presented in paragraph II letter C of this decision.
  12. Other courts have expressed theoretical points of view in the sense that it can be held that the procedure provided by Article II of the Government Emergency Ordinance no. 77/2018 is liable to confer on the Government a direct power of appointment in the management positions of the Judicial Inspectorate and to give rise to reasonable doubts regarding the use of the prerogatives and functions of the Judicial Inspectorate, because the Government, as issuer of the regulatory document, took over a function conferred to the exclusive competence of the SCM, namely the appointment of the management of the Judicial Inspectorate.
  13. In the Case no. 4/P2019, by the Decision no. 3P of 19 May 2021, the Section for Prosecutors in Disciplinary Matters of the Superior Council of Magistracy found the nullity of the disciplinary proceedings brought by the Judicial Inspectorate, as an effect of the CJEU Judgment of 18 May 2021, holding, in essence, that the Government Emergency Ordinance no. 77/2018, which allowed the Government to make interim appointments to the management positions of the judicial body responsible for conducting disciplinary investigations and bringing disciplinary proceedings against judges and prosecutors, namely the Judicial Inspectorate, without following the ordinary appointment procedure laid down by national law, infringes Article 2 and the second sub-paragraph of Article 19(1) TEU, and Decision 2006/928, this regulation being liable to give rise to reasonable doubt that the powers and functions of this body will be used as an instrument to exert pressure on, or political control over the activity of those judges and prosecutor. The decision of the Section for Prosecutors in Disciplinary Matters of the Superior Council of Magistracy is the subject of the appeal in the Case no. 2.782/1/2021, pending before the Panel of 5 judges of the High Court of Cassation and Justice.

   VII. The answer of the Public Ministry – Prosecutor’s Office attached to the High Court of Cassation and Justice

  1. By Letter no. 2.187/C/5731/III-5/2021 of 30 December 2021, the Public Ministry – Prosecutor’s Office attached to the High Court of Cassation and Justice communicated that, at that time, there was no judicial practice to admit an appeal in the interest of the law regarding the points of law subject to the referral.

   VIII. The case law of the Court of Justice of the European Union

  1. This referral was made in the light of the CJEU Judgment of 18 May 2021, delivered in the joined cases C-83/19, C-127/19, C-195/19, C-291/19, C-355/19 and C-397/19.
  2. Regarding the question referred through the mechanism established by Article 267 TFEU, in the sense of clarifying, among other things, whether the regulations governing the organization of justice in Romania, such as those regarding the interim appointment to the management positions of the Judicial Inspectorate, fall within the scope of Decision 2006/928/CE and whether they must comply with the requirements derived from the value of the rule of law, set out in Article 2 TEU, the CJEU declared that:

    “Article 2 and the second subparagraph of Article 19(1) TEU and Decision 2006/928 must be interpreted as precluding national legislation adopted by the government of a Member State, which allows that government to make interim appointments to the management positions of the judicial body responsible for conducting disciplinary investigations and bringing disciplinary proceedings against judges and prosecutors, without following the ordinary appointment procedure laid down by national law, where that legislation is such as to give rise to reasonable doubts that the powers and functions of that body may be used as an instrument to exert pressure on, or political control over, the activity of those judges and prosecutors.”

  1. The following arguments are set out in the recitals of the judgment underlying the CJEU answer referred to in paragraph 29 of this Decision:

    “  The fourth question referred in Case C‑83/19 and the third question referred in Case C‑355/19

   179 By the fourth question referred in Case C-83/19 and the third question referred in Case C-355/19, which it is appropriate to examine together, the referring courts ask, in essence, whether the legislation governing the organisation of justice in Romania, such as that relating to the interim appointment to the management positions of the Judicial Inspectorate (…), falls within the scope of Decision 2006/928/EC and whether it must comply with the requirements derived from the value of the rule of law, set out in Article 2 TEU.

    […]

   182 As regards specifically the national legislation at issue in Case C-83/19, that legislation concerns the interim appointment to the management positions of the Judicial Inspectorate, which is a body with legal personality within the Supreme Council of the Judiciary whose accountability is expressly covered by the first benchmark set out in the Annex to Decision 2006/928, which seeks to ensure a judicial process which is both more transparent and efficient. That body has essential powers in disciplinary proceedings within the judiciary and in proceedings relating to the personal liability of judges. Its institutional structure and activity, like the legislation at issue in Case C-83/19, were, moreover, the subject of Commission reports drawn up under Article 2 of Decision 2006/928, in particular in 2010, 2011 and 2017 to 2019.

    […]

   184 It follows that those pieces of legislation fall within the scope of Decision 2006/928 and that, as is apparent from paragraph 178 above, they must comply with the requirements arising from EU law and, in particular, from the value of the rule of law, set out in Article 2 TEU.

   185 The answer to the fourth question referred in Case C-83/19 and the third question referred in Case C-355/19 is, therefore, that the legislation governing the organisation of justice in Romania, such as that relating to the interim appointment to the management positions of the Judicial Inspectorate (…) falls within the scope of Decision 2006/928, with the result that it must comply with the requirements arising from EU law and, in particular, from the value of the rule of law, set out in Article 2 TEU.

    The third question referred in Case C‑83/19

   186 By its third question referred in Case C-83/19, the referring court asks, in essence, whether Article 2 and the second subparagraph of Article 19(1) TEU and Decision 2006/928 must be interpreted as precluding national legislation, adopted by the government of a Member State, which allows the latter to make interim appointments to the management positions of the judicial body responsible for conducting disciplinary investigations and bringing disciplinary proceedings against judges and prosecutors, without following the ordinary appointment procedure laid down for such positions by national law.

   187 As is apparent from the request for a preliminary ruling, the referring court raises that question because the tasks entrusted to a judicial body such as the body referred to in the national legislation at issue in the main proceedings and, in particular, the extent of the powers enjoyed, in the context of those tasks, by the persons occupying management positions within that body, are such as to raise questions with regard to the requirement of judicial independence.

   188 In that regard, it should be pointed out that Article 19 TEU, which gives concrete expression to the value of the rule of law affirmed in Article 2 TEU, entrusts the responsibility for ensuring the full application of EU law in all Member States and the judicial protection that individuals derive from EU law to national courts and tribunals and to the Court of Justice (judgments of 25 July 2018, Minister for Justice and Equality (Deficiencies in the system of justice), C-216/18 PPU, EU:C:2018:586, paragraph 50; of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C-619/18, EU:C:2019:531, paragraph 47; and of 5 November 2019, Commission v Poland (Independence of ordinary courts), C-192/18, EU:C:2019:924, paragraph 98].

   189 The very existence of effective judicial review designed to ensure compliance with EU law is of the essence of the rule of law (judgments 27 February 2018, Associação Sindical dos Juízes Portugueses, C-64/16, EU:C:2018:117, paragraph 36, and of 25 July 2018, Minister for Justice and Equality (Deficiencies in the system of justice), C-216/18 PPU, EU:C:2018:586, paragraph 51).

   190 In that regard, as provided for by the second subparagraph of Article 19(1) TEU, it is for the Member States to establish a system of legal remedies and procedures ensuring for individuals compliance with their right to effective judicial protection in the fields covered by EU law. 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, which has been 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 which is now reaffirmed by Article 47 of the Charter (judgment of 2 March 2021, A.B. and Others (Appointment of judges to the Supreme Court – Actions), C-824/18, EU:C:2021:153, paragraphs 109 and 110 and the case-law cited).

   191 It follows that every Member State must ensure that the bodies which, as “courts or tribunals” within the meaning of EU law, come within its judicial system in the fields covered by EU law meet the requirements of effective judicial protection (judgments of 27 February 2018, Associação Sindical dos Juízes Portugueses, C-64/16, EU:C:2018:117, paragraph 37, and of 25 July 2018, Minister for Justice and Equality (Deficiencies in the system of justice), C-216/18 PPU, EU:C:2018:586, paragraph 52).

   192 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 (judgment of 2 March 2021, A.B. and Others (Appointment of judges to the Supreme Court – Actions), C-824/18, EU:C:2021:153, paragraph 111 and the case-law cited).

   193 National legislation, such as that at issue in the main proceedings, applies to the judiciary as a whole and, therefore, to the ordinary courts which are called upon, in that capacity, to rule on questions relating to the application or interpretation of EU law. Since the latter, as “courts or tribunals” within the meaning of EU law, therefore come within the Romanian judicial system in the “fields covered by EU law”, within the meaning of the second subparagraph of Article 19(1) TEU, they must meet the requirements of effective judicial protection.

   194 It should be recalled 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 (see, to that effect, judgment of 2 March 2021, A.B. and Others (Appointment of judges to the Supreme Court – Actions), C-824/18, EU:C:2021:153, paragraph 115 and the case-law cited).

   195 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 the value of the rule of law, will be safeguarded. In accordance with the principle of the separation of powers which characterises the operation of the rule of law, the independence of the judiciary must in particular be ensured in relation to the legislature and the executive (see, to that effect, judgment of 2 March 2021, A.B. and Others (Appointment of judges to the Supreme Court – Actions), C-824/18, EU:C:2021:153, paragraphs 116 and 118 and the case-law cited).

   196 It is settled case-law of the Court that the guarantees of independence and impartiality required under EU law presuppose rules that are such as to dispel any reasonable doubt, in the minds of individuals, as to the imperviousness of the body in question to external factors and its neutrality with respect to the interests before it (see, to that effect, judgments of 19 September 2006, Wilson, C-506/04, EU:C:2006:587, paragraph 53 and the case-law cited; of 2 March 2021, A.B. and Others (Appointment of judges to the Supreme Court – Actions), C-824/18, EU:C:2021:153, paragraph 117; and of 20 April 2021, Repubblika, C-896/19, EU:C:2021:311, paragraph 53).

   197 In that regard, it is necessary that judges are protected from external intervention or pressure liable to jeopardise their independence. The rules applicable to the status of judges and the performance of their duties as judges must, in particular, be such as to preclude not only any direct influence, in the form of instructions, but also types of influence which are more indirect and which are liable to have an effect on the decisions of the judges concerned, and thus preclude a lack of appearance of independence or impartiality on their part liable to prejudice the trust which justice in a democratic society governed by the rule of law must inspire in individuals (see, to that effect, judgment of 2 March 2021, A.B. and Others (Appointment of judges to the Supreme Court – Actions), C-824/18, EU:C:2021:153, paragraphs 119 and 139 and the case-law cited).

   198 As regards specifically the rules governing the disciplinary regime, the requirement of independence means that, in accordance with settled case-law, that regime must provide the necessary guarantees in order to prevent any risk of its being used as a system of political control of the content of judicial decisions. Rules which define, in particular, both conduct amounting to disciplinary offences and the penalties actually applicable, provide for the involvement of an independent body in accordance with a procedure which fully safeguards the rights enshrined in Articles 47 and 48 of the Charter, in particular the rights of the defence, and lay down the possibility of bringing legal proceedings challenging the disciplinary bodies’ decisions constitute a set of guarantees that are essential for safeguarding the independence of the judiciary (judgments of 25 July 2018, Minister for Justice and Equality (Deficiencies in the system of justice), C-216/18 PPU, EU:C:2018:586 paragraph 67; of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C-619/18, EU:C:2019:531, paragraph 77; and of 5 November 2019, Commission v Poland (Independence of ordinary courts), C-192/18, EU:C:2019:924, paragraph 114).

   199 Furthermore, as the Advocate General in essence observed, in point 268 of his Opinion in Cases C-83/19, C-127/19, C-195/19, C-291/19 and C-355/19, since the prospect of opening a disciplinary investigation is, as such, liable to exert pressure on those who have the task of adjudicating in a dispute, it is essential that the body competent to conduct investigations and bring disciplinary proceedings should act objectively and impartially in the performance of its duties and, to that end, be free from any external influence.

   200 Consequently, since those occupying management positions within such a body are likely to exert a decisive influence on its activity, the rules governing the procedure for appointment to those positions must be designed – as the Advocate General noted, in essence, in point 269 of his Opinion in Cases C-83/19, C-127/19, C-195/19, C-291/19 and C-355/19 – in such a way that there can be no reasonable doubt that the powers and functions of that body will not be used as an instrument to exert pressure on, or political control over, judicial activity.

   201 It is ultimately for the referring court to rule on that matter having made the relevant findings in that regard. Indeed, it must be borne in mind that Article 267 TFEU does not empower the Court to apply rules of EU law to a particular case, but only to rule on the interpretation of the Treaties and of acts of EU institutions According to settled case-law, the Court may, however, in the framework of the judicial cooperation provided for by Article 267 TFEU and on the basis of the material presented to it, provide the national court with an interpretation of EU law which may be useful to it in assessing the effects of one or other of its provisions (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 132, 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 96).

   202 In that regard, it should be noted that the mere fact that the senior officers of the body entrusted with conducting disciplinary investigations and bringing disciplinary proceedings in respect of judges and prosecutors are appointed by the government of a Member State is not such as to give rise to doubts such as those referred to in paragraph 200 above.

   203 The same is true of national provisions which state that where a management position in such a body falls vacant as a result of the expiry of the term of office in question, the senior officer whose term has expired will act as substitute until the date on which that position is filled on the terms laid down by the legislation.

   204 Nonetheless, the substantive conditions and detailed procedural rules governing the adoption of decisions to appoint those senior officers must still be designed in such a way as to meet the requirements referred to in paragraph 199 above.

   205 In particular, national legislation is likely to give rise to doubts such as those referred to in paragraph 200 above where, even temporarily, it has the effect of allowing the government of the Member State concerned to make appointments to the management positions of the body responsible for conducting disciplinary investigations and bringing disciplinary proceedings against judges and prosecutors, by disregarding the ordinary appointment procedure laid down by national law.

   206 It is for the referring court to ascertain, taking into account all the relevant factors of the national legal and factual context, whether the national legislation at issue in the main proceedings has had the effect of conferring on the national government a direct power of appointment to those positions and given rise to reasonable doubts that the powers and functions of the Judicial Inspectorate might be used as an instrument to exert pressure on, or political control over, the activity of judges and prosecutors.

   207  the light of the foregoing considerations, the answer to the third question referred in Case C-83/19 is that Article 2 and the second subparagraph of Article 19(1) TEU and Decision 2006/928 must be interpreted as precluding national legislation adopted by the government of a Member State, which allows that government to make interim appointments to the management positions of the judicial body responsible for conducting disciplinary investigations and bringing disciplinary proceedings against judges and prosecutors, without following the ordinary appointment procedure laid down by national law, where that legislation is such as to give rise to reasonable doubts that the powers and functions of that body may be used as an instrument to exert pressure on, or political control over, the activity of those judges and prosecutors.»

  1. The report on the point of law
  2. By the report drawn up in the case, according to Article 520 par. (7) of the Civil Procedure Code, it was assessed that the admissibility conditions provided by Article 519 of the same code are fulfilled and it was proposed to admit the referral and issue a preliminary decision for the settlement, in principle, of the point of law that is the subject of the referral.
  3. The High Court of Cassation and Justice
  4. Regarding the admissibility of the referral
  5. The provisions of Article 519 of the Civil Procedure Code, which regulates the procedure of referring to the High Court of Cassation and Justice for a preliminary ruling, lay down the following conditions for the admissibility of the referral, which must be met cumulatively: (i) the existence of a case pending before a court; (ii) the case which is the subject of the trial is within the legal jurisdiction of a panel of the High Court of Cassation and Justice, of the court of appeal or of the court/tribunal, vested to settle the case; (iii) the court that refers to the High Court of Cassation and Justice hears the case at final instance; (iv) the emergence of a genuine point of law, which is liable to give rise to different interpretations, on the clarification of which depends the substantive settlement of the case before the court; (v) the point of law that is requested to be clarified is new; (vi) the point of view has not been ruled on by the High Court of Cassation and Justice and is also not the subject of an appeal in the interest of the law pending settlement.
  6. The first three and the sixth of the admissibility conditions are met, since the referral was made in the context of an administrative dispute in appeal before the High Court of Cassation and Justice, the court that formulated the referral and adjudicates the dispute in last instance, and the supreme court has not ruled on the points of law subject to settlement, which are also not the subject of an appeal in the interest of law pending resolution.
  7. As regards the fourth admissibility condition, regarding the existence of a “genuine point of law”, the case law of the Panel for the settlement of points of law holds that the purpose of the procedural mechanism regulated by Article 519-521 of the Civil Procedure Code is to contribute to the transformation of the judicial practice into a predictable one (Decision no. 10 of 4 April 2016, published in the Official Gazette of Romania, Part I, no. 393 of 23 May 2016, paragraphs 34 and 36), and the premises for initiating this procedure consist in the imminent emergence of a non-unitary judicial practice (Decision no. 79 of 12 November 2018, published in the Official Gazette of Romania, Part I, no. 117 of 14 February 2019, paragraphs 90-91) and in the potential of the point of law to give rise to different interpretations, whether they are only prefigured or already asserted (Decision no. 32 of 30 March 2020, published in the Official Gazette of Romania I, no. 553 of 26 June 2020, paragraph 47).
  8. In this case, at least apparently, there is an imminent risk of a non-unitary judicial practice, as we are faced with two divergent judicial guidelines, namely: on the one hand, Civil Judgment no. 59 of 14 July 2021 of the Suceava Court of Appeal – Administrative and Fiscal Disputes Division (presented in paragraph II letter C of this decision), which is the subject of the appeal in the Case no. 391/39/2021, pending before the Administrative and Fiscal Disputes Division of the High Court of Cassation and Justice; on the on the other hand, the Decision of the Section for Prosecutors in Disciplinary Matters of the Superior Council of Magistracy no. 3P of 19 May 2021, delivered in the Case no. 2.782/1/2021, pending before the Panel of 5 judges of the High Court of Cassation and Justice.
  9. The difficulty and uncertainty in interpreting the provisions in question arise from the different interpretations given by the decisions mentioned in the previous paragraph, as we are faced with a real and genuine point of law, able to generate judicial divergences, therefore the fourth admissibility condition of the referral is also met.
  10. As regards the fifth admissibility condition, regarding the novelty, it is clearly met, since the points of law in question are recent and were generated by the CJEU Judgment of 18 May 2021, delivered in the joined cases C-83/19, C-127/19, C-195/19, C-291/19, C-355/19 and C-397/19, so that, only now, as well as in the near future, the courts will be faced with disputes in which the same point of law is raised, there being, as previously shown, the risk of judicial divergences.
  11. Moreover, the risk of the emergence of a non-unitary case law, already pointed out in paragraph 35 of this decision, implicitly results even from the solution and recitals in paragraphs 200-203 of the CJEU Judgment of 18 May 2021, summarized in paragraph 206 of the judgment, where it is expressly stated that, finally “It is for the referring court to ascertain, taking into account all the relevant factors of the national legal and factual context, whether the national legislation at issue in the main proceedings has had the effect of conferring on the national government a direct power of appointment to those positions and given rise to reasonable doubts that the powers and functions of the Judicial Inspectorate might be used as an instrument to exert pressure on, or political control over, the activity of judges and prosecutors”.
  12. Therefore, since it is for each of the national courts before which the European Union law is relied on to consider whether, in practice, the national legislation in question complies with the standards imposed by European rules in the light of the interpretations provided by the CJEU, it becomes inevitable to have contradictory judgments, depending on the assessment of each court.
  13. However, in this context and in the presence of the already divergent interpretations mentioned in paragraph 35 of this decision, it is clear that we are faced with an imminent emergence of a non-unitary judicial practice which would have a significant negative impact on the judiciary as long as it raises doubts on the lawfulness of the exercise of the management positions of chief inspector and deputy chief inspector of the Judicial Inspectorate, with consequences on the disciplinary proceedings carried out during the interim performance of these positions under the provisions of Article II of the Government Emergency Ordinance no. 77/2018.
  14. Under these circumstances, the function of the preliminary ruling mechanism to prevent the emergence of a non-unitary practice (a priori control) can be achieved at this stage, as there is no example of final case law ruling on the points of law in question and thus allowing a stable practice of the courts to take shape, and both the condition of “novelty” and the “purpose” of the procedural mechanism are met.
  15. For all the arguments presented, it is considered that the conditions of admissibility of the referral, provided by Article 519 of the Civil Procedure Code, are met, therefore it is necessary to give efficiency to the mechanism of ensuring a unitary judicial practice represented by the delivery of a preliminary ruling.
  16. Regarding the point of law referred for settlement
  17. The point of law that the referring court requests to be settled is that to establish whether the procedure regulated by Article II of the Government Emergency Ordinance no. 77/2018 is liable to confer on the Government a direct power of appointment of the interim management of the Judicial Inspectorate and to give rise to reasonable doubts regarding the use of the prerogatives and functions of the Judicial Inspectorate as an instrument of pressure on the activity of judges and prosecutors or of political control over this activity.
  18. As a preliminary point, it should be noted that, although the referral concerns the interpretation of the provisions of Article II of the Government Emergency Ordinance no. 77/2018, the analysis made by the High Court of Cassation and Justice is also closely related to the provisions of Article I of the Government Emergency Ordinance.
  19. Thus, analyzing the content of this regulatory document, it is established that the Government Emergency Ordinance no. 77/2018 contains in Article I a provision of principle, which regulates the situation of the vacancy of the management positions of the Judicial Inspectorate as a result of expiry of the terms of office, ordering that the chief inspector or deputy chief inspector, as applicable, whose term of office has expired, act as substitute until the date on which that position is filled in the terms laid down by the legislation. Article II introduces a transitional provision, expressly providing that, for the legal situation set forth in Article I which is in progress at the date of entry into force of the Government Emergency Ordinance no. 77/2018, the same legislative solution shall apply, respectively those whose terms of office in the management positions have expired will act as substitutes.
  20. The issue of interpreting the provisions of the Government Emergency Ordinance no. 77/2018 was generated by the fact that they were the subject of preliminary requests in the joined cases C-83/19, C-127/19, C-195/19, C-291/19, C-355/19 and C-397/19. By the Judgment of 18 May 2021, the CJEU, although analyzing generically the compatibility of the European Union law with a national regulation placed in the context invoked in the referral, ruled that the European Union law ”precludes national legislation adopted by the government of a Member State, which allows that government to make interim appointments to the management positions of the judicial body responsible for conducting disciplinary investigations and bringing disciplinary proceedings against judges and prosecutors, without following the ordinary appointment procedure laid down by national law, where that legislation is such as to give rise to reasonable doubts that the powers and functions of that body may be used as an instrument to exert pressure on, or political control over, the activity of those judges and prosecutors.”
  21. In the recitals of the Judgment of 18 May 2021, the CJEU held, regarding the rules governing the disciplinary regime, that the requirement of independence means that such regime must provide the necessary guarantees in order to prevent any risk of its being used as a system of political control of the content of judicial decisions (paragraph 198 of the judgment). Since the prospect of opening a disciplinary investigation is, as such, liable to exert pressure on those who have the task of adjudicating in a dispute, it is essential that the body competent to conduct investigations and bring disciplinary proceedings should act objectively and impartially in the performance of its duties and, to that end, be free from any external influence (paragraph 199 of the judgment). Consequently, since those occupying management positions within such a body are likely to exert a decisive influence on its activity, the rules governing the procedure for appointment to those positions must be designed in such a way that there can be no reasonable doubt that the powers and functions of that body will not be used as an instrument to exert pressure on, or political control over, judicial activity (paragraph 200 of the judgment).
  22. Therefore, without finding the inconsistency of the Government Emergency Ordinance no. 77/2018 with the European Union law, the CJEU decided that, in the end, “it is for the referring court to ascertain, taking into account all the relevant factors of the national legal and factual context, whether the national legislation at issue in the main proceedings has had the effect of conferring on the national government a direct power of appointment to those positions and given rise to reasonable doubts that the powers and functions of the Judicial Inspectorate might be used as an instrument to exert pressure on, or political control over, the activity of judges and prosecutors” (paragraph 206 of the CJEU Judgment of 18 May 2021).
  23. The analysis of this referral starts from the following legal realities accepted and ruled even in the case law of the Constitutional Court (Constitutional Court Decision no. 1.039 of 5 December 2012, published in the Official Gazette of Romania, Part I, no. 61 of 29 January 2013):

    “ The principle of the primacy of European Union law is established by Article 148 par. (2) of the Constitution, and guaranteeing the fulfillment of the obligations resulting from the accession to the European Union and from the application of this principle falls, in order, according to paragraph (4) of the same article, on the Parliament, the President of Romania, the Government and the judicial authority.

    (…) The Court of Justice of the European Union, having jurisdiction to interpret the European Union law (…), its preliminary rulings shall be binding erga omnes, at the level of all Member States, subject to the request, at a later time, by the national courts for additional clarification on the Court’s interpretation.”

  1. By the mechanism of the preliminary ruling, in the process of solving in principle the point of law referred to it, the High Court of Cassation and Justice, analyzing the provisions subject to interpretation in the light of the conditionalities established by the CJEU, considers that, for the arguments to be presented below, the provisions of Article II of the Government Emergency Ordinance no. 77/2018 are not liable to confer on the Government a direct power of appointment to these positions or to give rise to reasonable doubts regarding the use of the prerogatives and functions of the Judicial Inspectorate as an instrument of pressure on the activity of judges and prosecutors or of political control over this activity.
  2. It should also be noted that Article 267 of the TFEU does not empower the CJEU to apply the rules of the European Union law to a determined case, but only to rule on the interpretation of the treaties and documents adopted by the European Union institutions, however, according to settled case-law, the Court of Justice of the European Union may, in the framework of the judicial cooperation provided by that and on the basis of the material presented to it, provide the national court with an interpretation of EU law which may be useful to it in assessing the effects of one or other of its provisions (paragraph 201 of the CJEU Judgment of 18 May 2021).
  3. Thus, the CJEU pointed out that “national legislation is likely to give rise to doubts such as those referred to in paragraph 200 above where, even temporarily, it has the effect of allowing the government of the Member State concerned to make appointments to the management positions of the body responsible for conducting disciplinary investigations and bringing disciplinary proceedings against judges and prosecutors, by disregarding the ordinary appointment procedure laid down by national law” (paragraph 205 of the CJEU Judgment of 18 May 2021).
  4. It should be noted that, as indicated by the CJEU, the European court started from the premise of the existence in the domestic legal order of an ordinary procedure of appointment of the interim management of the Judicial Inspectorate, while, as we will show below, the reason for adopting the Government Emergency Ordinance no. 77/2018 was precisely that of the lack of this procedure and the impossibility of ensuring the current management of the Judicial Inspectorate, as a result of the expiry of the terms of office of the management positions.
  5. Therefore, the essential element from which the analysis of the provisions of Article II of the Government Emergency Ordinance no. 77/2018 starts is the fact that they are not derogatory from any possible legal norms of a general nature that regulate the way of ensuring the interim management of the Judicial Inspectorate, being adopted not for circumvention, but precisely in consideration of the non-existence of the latter.
  6. A first argument in support of this remark results from the very title and subject matter of the regulation. The Government Emergency Ordinance no. 77/2018 for supplementing Article 67 of Law no. 317/2004 regarding the Superior Council of Magistracy provides in Article I par. (1): “In Article 67 of Law no. 317/2004 regarding the Superior Council of Magistracy, (…) two new paragraphs are inserted after paragraph (6), namely paragraphs (7) and (8), with the following content: (…)”. Therefore, it is clear that the purpose of the delegated legislator was to cover the lack of standardization in the situations set out in the supplementary provisions.
  7. In terms of legislative technique, the provisions of Law no. 24/2000 regarding the legislative technique rules for drafting regulatory documents, republished, as subsequently amended and supplemented (Law no. 24/2000), regulate the supplementation of a regulatory document as a legislative event consisting in the introduction of new provisions, which include legislative solutions and additional assumptions that do not affect the general concept or the unitary nature of that document.
  8. Secondly, the reasons underlying the issuance of the emergency ordinance are also relevant, as presented by the Government in the preamble of this regulatory document, noting, among others, the following:

    “  Considering that, according to the provisions of Article 65 par. (2) of Law no. 317/2004 regarding the Superior Council of Magistracy, republished, as amended, the Judicial Inspectorate is led by a chief inspector, who manages and organizes the activity of the Judicial Inspectorate, assisted by a deputy chief inspector, appointed by competition organized by the Superior Council of Magistracy,

    taking into consideration that, according to the provisions of Article 67 of Law no. 317/2004, republished, as amended, the term of office of the chief inspector and of the deputy chief inspector is 3 years and it can be renewed once, under the conditions laid down by law,

    as the provisions of Law no. 317/2004, republished, as amended, do not regulate the situation where the terms of office of the positions of chief inspector and deputy chief inspector of the Judicial Inspectorate expire before the completion of the competitions for filling these positions, or the possibility of holding such management positions as a substitute in case they become vacant for other reasons, (…)

    given the fact that the term of office of the management of the Judicial Inspectorate expired on 1 September 2018 and there is no legal provision that expressly regulates the way of ensuring the interim filling of these positions, (…)

    considering that the situation presented above is extraordinary, and its regulation cannot be delayed, and that an urgent legislative intervention is needed to fill the legislative gap in this matter”.

  1. Therefore, the context of the factual and legal situations that have led to the adoption of the emergency ordinance reveals, on the one hand, the existence of a legislative gap regarding the interim filling of the positions of chief inspector and deputy chief inspector of the Judicial Inspectorate and, on the other hand, a particular hypothesis without legal correspondent, in which the vacancy of the two management positions as at 1 September 2018, generated by the impossibility of completing the competition for filling the positions within the legal period due to legal proceedings regarding the competition regulation, had no regulatory solution.
  2. At the same time, unlike the situation of other management positions in the judicial system regarding which the legislator had regulated the possibility of delegation in the event of vacancy of the position, until it is filled by competition or appointment, in the case of the Judicial Inspectorate there is no such provision. Thus, the legislation on the judiciary contains the provisions of Article 57 of Law no. 303/2004 regarding the status of judges and prosecutors republished, as subsequently amended and supplemented, which provide that:

    ” Art. 57. –   (…)

   (4) The delegation to management positions of judges from the courts of appeal, tribunals, specialized courts and district courts shall be ordered, with their written consent, by the Superior Council of Magistracy – Section for Judges, until the position is filled by appointment under the conditions of this law.

   (5) The delegation to the management positions of the High Court of Cassation and Justice judges from this court shall be ordered by the Superior Council of Magistracy – Section for Judges, with their written consent, upon the proposal of the president of the High Court of Cassation and Justice.”

  1. However, the cited legal norms, which allow the delegation to vacant management positions in courts and prosecutor’s offices, cannot be applied by analogy, much less directly in the situation of vacant management positions at the Judicial Inspectorate.
  2. Therefore, a first conclusion is that the hypothesis of “disregard of the ordinary appointment procedure laid down by national law”, to which the CJEU referred when providing the interpretations of the European Union law in relation to which the effects of the Government Emergency Ordinance no. 77/2018 are assessed, is not found in the legislative context existing at the time of adopting this regulatory document.
  3. Given the correlation presented by the CJEU (paragraph 52 of this decision), the non-existence of this premise would make useless, ab initio, the analysis of the fulfillment of the two conditions regarding the ability of the government ordinance to confer on the Government a direct power of appointment of the interim management of the Judicial Inspectorate and to give rise to reasonable doubt that the powers and functions of the Judicial Inspectorate will be used as an instrument of pressure on, or control over the activity of judges and prosecutors.
  4. However, for reasons related to the need to clarify all aspects that could generate contradictory interpretations, the High Court of Cassation and Justice will further analyze the benchmarks indicated by the CJEU to verify the effects of Government Emergency Ordinance no. 77/2018, that is: direct appointment and reasonable doubt.
  5. With regard to the condition that the rule in question confers on the Executive the direct power to appoint the management of the Judicial Inspectorate, as indicated above, the circumstances in which the emergency ordinance was adopted reveal the Government’s intention to regulate, by virtue of the legislative delegation granted to it by Article 115 par. (4) of the Constitution, the vacancy of the management positions faced by the Judicial Inspectorate for objective reasons, which are not attributable either to this institution, or to the Superior Council of Magistracy, and even less to the Executive.
  6. In fact, in the recitals of the CJEU Judgment of 18 May 2021, it was held that “the mere fact that the senior officers of the body entrusted with conducting disciplinary investigations and bringing disciplinary proceedings in respect of judges and prosecutors are appointed by the government of a Member State is not such as to give rise to doubts such as those referred to in paragraph 200 above. The same is true of national provisions which state that where a management position in such a body falls vacant as a result of the expiry of the term of office in question, the senior officer whose term has expired will act as substitute until the date on which that position is filled on the terms laid down by the legislation. Nonetheless, the substantive conditions and detailed procedural rules governing the adoption of decisions to appoint those senior officers must still be designed in such a way as to meet the requirements referred to in paragraph 199 above” (paragraphs 202-204 of the judgment).
  7. Therefore, both in the CJEU Judgment of 18 May 2021, and in its case law in similar cases [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], the CJEU accepts, in principle, that interim positions, in situations such as the one in question, are not such as to give rise, per se, to doubts such as those referred to by the European court (paragraph 203 of the judgment), and it is necessary to verify the substantive and procedural conditions in which those appointments are made.
  8. However, even in these circumstances, it is necessary to point out that, by the Government Emergency Ordinance no. 77/2018, the Government did not make the direct appointment of the persons acting as substitutes for the positions of chief inspector and deputy chief inspector in the Judicial Inspectorate. This regulatory document contains no actual provisions for the appointment of determined persons to the management positions in question, therefore it does not have an intuitu personae nature.
  9. Examining the provisions of Article I of the Government Emergency Ordinance no. 77/2018, which introduces, in Article 67 of Law no. 317/2004, paragraphs (7) and (8), which regulate the procedure of interim holding of positions in the event of vacancy of the positions of chief inspector and deputy chief inspector in the Judicial Inspectorate, as a result of the expiry of the term of office or other situations, it is found that they represent a legislative event meant to ensure a solution for a hypothesis not covered by the provisions in force.
  10. Under these circumstances, it is obvious that the delegated legislator intended to supplement the existing regulatory framework with norms with general and permanent applicability, and not only at that time. Consequently, the regulatory solution introduced by the Government Emergency Ordinance no. 77/2018 is presently included in the active legislation, being the current form of Article 67 of Law no. 317/2004.
  11. Equally, a direct appointment may also not be assimilated to the fact that the provisions of Article II of the Government Emergency Ordinance no. 77/2018 refer to the particular situation of the vacancy of management positions at the date of its entry into force, a hypothesis regarding which the Executive ordered that the same legislative solution be applied, respectively that the inspectors in office whose term of office has expired at that time will act as substitutes.
  12. In terms of the regulatory technique, through the wording and the measures established with regard to the development of the legal situations in progress at the date of entry into force, the provisions of Article II of the Government Emergency Ordinance no. 77/2018 have the characteristic of transitional rules within the meaning of Article 54 of Law no. 24/2000, an article that provides for the issuer’s obligation to also expressly regulate the legal relations that arose previously, but whose effects continue to take place even after the adoption of the regulatory document, therefore are not terminated as at its entry into force.
  13. Moreover, according to Article 115 par. (5) of the Constitution, “An emergency ordinance shall only come into force after it has been submitted for debate in an urgency procedure to the Chamber having the competence to be notified and after it has been published in the Official Gazette of Romania. If not in session, the Chambers shall be convened by all means within 5 days after its submission or, as the case may be, after forwarding”. The Government Emergency Ordinance no. 77/2018 was published in the Official Gazette of Romania, Part I, no. 767 of 5 September 2018 and was submitted for debate in an urgency procedure to the Chamber of Deputies under no. 616 of 5.09.2018 [according to the mentions in the file of the draft Law on the approval of the Government Emergency Ordinance no. 77/2018 (PL-x nr. 449/2018), which can be consulted in the section “Legislative Process” on the website of the Chamber of Deputies, www.cdep.ro.
  14. It results that the Government Emergency Ordinance no. 77/2018 entered into force on 5 September 2018, and therefore, according to the principle of application of civil law in time, regulated by Article 6 par. (1) of Law no. 287/2009 regarding the Civil Code, republished, as subsequently amended, it applies to the legal relationships existing at that time, including the vacancy of the positions of chief inspector and deputy chief inspector, which occurred on 1 September 2018.
  15. Under these circumstances, it can be concluded that the provisions of Article II of the Government Emergency Ordinance no. 77/2018 generate no other effect than the one that would have been caused, in their absence, by the provisions of Article I of the Government Emergency Ordinance, context in which it is superfluous to discuss the potential risk of conferring on the Government the power of direct appointment to management positions that are vacant on the date of their entry into force.
  16. Therefore, in the light of the arguments presented above, no elements can be identified that would lead to the conclusion that the provisions of Article II of the Government Emergency Ordinance no. 77/2018 confer or conferred at that time on the Government the direct power of appointment to the positions of chief inspector and deputy chief inspector in the Judicial Inspectorate.
  17. As regards the second probative standard established by the CJEU regarding the reasonable doubt, the High Court of Cassation and Justice finds that the circumstances in which the provisions of Article II of the Government Emergency Ordinance no. 77/2018 were adopted represent exceptional objective situations, which cannot be regarded as elements that can point out the Government’s conduct or intention to assume, by adopting the emergency ordinance, the power of direct appointment to the positions of chief inspector and deputy chief inspector in the Judicial Inspectorate in such way as “to give rise to reasonable doubt that the powers and functions of that body will be used as an instrument to exert pressure on, or political control over, judicial activity” (paragraph 200 of the CJEU Judgment of 18 May 2021).
  18. Thus, the preamble to the Government Emergency Ordinance presents, as shown above (paragraph 57 of this decision), the exceptional circumstances that required the regulatory intervention of the Government at that time.
  19. It is to be noted that, starting from the premise that the law in force did not regulate, in principle, the objective situation in which the vacancy of management positions in the Judicial Inspectorate occurred as a result of the expiry of the terms of office before the end of the competitions for filling them or for other objective reasons, the Government showed, in the preamble of the emergency ordinance, that: “considering the importance of the Judicial Inspectorate institution for maintaining an upstanding body of the judiciary enjoying all guarantees of independence and impartiality, the fact that the activity carried out by this institution aims to improve the quality of the act of justice, of the efficiency and effectiveness of the judiciary, by verifications and evaluations carried out according to the law, and taking into account that the vacancy of the position of chief inspector of the Judicial Inspectorate has negative repercussions on the activity of this institution and on the procedures of disciplinary investigation of judges, given that the chief inspector has concrete duties in the disciplinary procedure, confirming the resolutions of the judicial inspector (…)”, thus considering that it has the constitutional obligation to enact in this area.
  20. Given the constitutionality conditions under which the Government’s legislative delegation is carried out, as provided by Article 115 par. (4) of the Constitution, the emergency ordinance cannot be considered as an alternative at the discretion of the Executive, which would thus have the freedom to adopt at any time, as a matter of urgency, regulatory documents of a legal nature. Therefore, a subjective intervention by the Executive by means of the emergency ordinance is excluded de plano.
  21. According to the case law of the Constitutional Court regarding Article 115 par. (4) of the Constitution (for example, Decision no. 255 of 11 May 2005, published in the Official Gazette of Romania, Part I, no. 511 of 16 June 2005), the Government can adopt emergency ordinances under the following conditions, which are cumulatively met: the existence of an extraordinary situation, the regulation cannot be delayed, and the explanation of the urgency is in the contents of the ordinance.
  22. “Extraordinary situations express a high degree of deviation from the ordinary or common situations and have an objective nature, in the sense that their existence does not depend on the will of the Government, which, in such circumstances, is forced to react promptly in order to defend a public interest by way of an emergency ordinance” (see Decision no. 83 of 19 May 1998, published in the Official Gazette of Romania, Part I, no. 211 of 8 June 1998). Therefore, the Constitutional Court notes that the elements invoked as extraordinary situations, which require urgent remediation, are objective, quantifiable factual situations, independent of the will of the Government, which endanger the public interest and therefore fulfill the requirements provided by Article 115 par. (4) of the Constitution (Decision no. 731 of 4 November 2021, published in the Official Gazette of Romania, Part I, no. 1.239 of 28 December 2021).
  23. Therefore, the constitutional framework that allows the Government to legislate excludes any possibility for it to use the powers of delegated legislator so as to give rise to reasonable doubts regarding the use of the powers and functions of the Judicial Inspectorate as an instrument of pressure on, and political control over the activity of judges and prosecutors.
  24. Secondly, such a potential risk cannot be taken into consideration if the same person, initially appointed by the Superior Council of Magistracy, held the management position until the moment of vacancy (1 September 2018) and was subsequently appointed to the position by the Superior Council of Magistracy following the competition organized and carried out under Article 67 par. (1)-(3) of Law no. 317/2004. Therefore, the adopted regulatory solution was aimed to ensure that the interim positions are held by persons who have proved professional and managerial competence, by already performing those duties, having an in-depth knowledge of the activity of the Judicial Inspectorate and following a competition, both at the time of the initial appointment and at the time of reappointment for a new term of office, under the conditions laid down by law.
  25. In fact, under the conditions set forth, pursuant to Article II of the Government Emergency Ordinance no. 77/2018, the management position of chief inspector was performed on an interim basis, between 1 September 2018-14 May 2019, by the same person who, both prior the interim period, and after the interim period (under the Decision of the Plenary of the Superior Council of Magistracy no. 82 of 15 May 2019), was appointed by the Superior Council of Magistracy, according to the procedure provided by Article 67 of Law no. 317/2004, following competition, which excludes, de plano, any minimal intervention by the Government in the appointment of persons performing the positions of chief inspector and deputy chief inspector in the Judicial Inspectorate.
  26. Moreover, the adopted legislative solution stipulates that the interim management positions be provided by persons in respect of whom the Superior Council of Magistracy had previously carried out the appointment procedure following the competition organized according to law, a solution meant to ensure the continuity of the managerial act for a determined person, until the position is filled under the conditions laid down by the law.
  27. Also, it cannot be ignored that, at present, with regard to the institution of delegation to management positions in courts and prosecutor’s offices, the outlining of an administrative practice reflecting this regulatory solution can be seen, in the sense that, as a rule, it is ordered to delegate to a vacant management position the same judge who had previously performed the management term of office, precisely in consideration of the arguments presented above.
  28. Moreover, it should also be taken into account that, according to Article 65 par. (2) of Law no. 317/2004, only a judge can be appointed as chief inspector of the Judicial Inspectorate, a judge whose entire professional career is endorsed by the Superior Council of Magistracy, the guarantor of the independence of the judiciary, according to Article 133 par. (1) of the Constitution, and the only institution competent to appoint, to promote, to transfer and to sanction judges, according to Article 125 par. (2) of the Constitution, which means that the person in question meets the specific requirements for the body of judges, providing guarantees of impartiality and independence in performing the position.
  29. Thus, although it is undisputed that the interim of the two management positions was performed under the provisions of Article II of the Government Emergency Ordinance no. 77/2018, the Executive had no involvement in the selection or appointment of the persons acting as substitutes, which is why the applicability of the hypothesis considered by the CJEU in paragraph 202 of the Judgement of 18 May 2021 cannot be upheld.
  30. Therefore, there is no appointment to a management position made directly by the executive, in violation of the ordinary procedure of appointment laid down by the law, but it is an adoption of a regulatory document, based on a constitutional power, in consideration of extraordinary situations, the regulation of which could not be delayed.
  31. In conclusion, it is considered that the provisions of Article II of the Government Emergency Ordinance no. 77/2018 are not liable to confer on the Government a direct power of appointment to the management positions in the Judicial Inspectorate or to give rise to reasonable doubts regarding the use of the prerogatives and functions of the Judicial Inspectorate as an instrument of pressure on the activity of judges and prosecutors or of political control over this activity.
  32. Given that, for the arguments shown, the answer to the first question is negative, it is superfluous to analyze the second question which is the subject of the referral, a question which is subsidiary to an affirmative answer to the first question.
  33. Given the above mentioned reasons, pursuant to Article 519 of the Civil Procedure Code,

THE HIGH COURT OF CASSATION AND JUSTICE

In the name of the law

DECIDES:

    Admits the referral submitted by the High Court of Cassation and Justice – Administrative and Fiscal Disputes Division, by the Decision of 24 November 2021, delivered in the Case no. 391/39/2021, regarding the delivery of a preliminary ruling and, consequently, establishes that:

    The provisions of Article II of the Government Emergency Ordinance no. 77/2018 for supplementing Article 67 of Law no. 317/2004 regarding the Superior Council of Magistracy are not liable to confer on the Government a direct power of appointment in these positions and to give rise to legitimate doubts regarding the use of the prerogatives and functions of the Judicial Inspectorate as an instrument of pressure on the activity of judges and prosecutors or of political control over this activity.

    Binding, according to the provisions of Article 521 par. (3) of the Civil Procedure Code.

    Issued in public hearing today, 14 March 2022.

PRESIDENT OF THE ADMINISTRATIVE AND FISCAL DISPUTES DIVISION
DENISA-ANGELICA STĂNIŞOR

Assistant Judge,
Bogdan Georgescu

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