02 Juni 2021

A Tale of Primacy

The ECJ Ruling on Judicial Independence in Romania

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

General Context

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

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

Civil society, an important fraction of the magistrates, parliamentary opposition and the President of Romania used all available instruments in order to stop or limit the damages. Challenging judicial reforms in the Constitutional Court, the use of presidential veto, requests for opinions from Venice Commission or GRECO, requests of preliminary rulings by national judges asking the ECJ to clarify the compliance of judicial reforms with EU law represented complex resilient practices. We have detailed the political and constitutional context and consequences of that general assault on the Romanian judicial system elsewhere.1)E.S. Tănăsescu, Romania: From Constitutional Democracy to Constitutional Decay?, in V. Besirevic (Ed.), New Politics of Decisionism, Eleven International Publishing, The Hague, 2019, pp. 177-191. Following the general elections of December 2020, a different parliamentary majority has set forth to reverse the tide and correct – to the extent where this is still possible – the wrongs already done, so far with mitigated success.

Preliminary Questions

Although the rule of law backsliding in Romania has been weaker and of a shorter duration than those observed in other EU member states, in 2019 Romanian courts capitalised on the experience gained by the ECJ with regard to the protection of the rule of law in other member states and addressed preliminary questions 2)See in particular cases C-83/19, C-127/19, C-195/19, C-291/19, C-355/19, C-379/19, C-397/2019, C-547/19, C-811/19, C-840/19. pertaining to the compliance of Romanian judicial reforms with EU acquis on judicial independence.

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

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

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

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

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

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

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

Such a position seems difficult to be upheld in the future, at least as far as the legal nature and binding value of the Decision 2006/928/EC and the CVM are concerned. The recent ECJ judgment Asociația „Forumul Judecătorilor din România” clearly asserts the binding nature of those EU legal instruments and their direct effect. Nevertheless, the Romanian Constitutional Court may lawfully continue to refuse to refer to these EU legal instruments as norms of reference for the constitutionality review it performs, although if it decided to turn to a substantive approach of the concept of the rule of law it would have to acknowledge the correlation between Article 1 (3) of the Romanian Constitution, which states that Romania is a state governed by the rule of law, and the substantive matter of Decision 200