The Dismissal of the Romanian Prosecutors Annulment Action

In the latest chapter of the EU rule of law saga, the General Court dismissed an annulment action lodged by an association of Romanian prosecutors, which challenged the termination of the Cooperation and Verification Mechanism in 2023, due to lack of direct concern.

We argue that a too-narrow view of the issue does not reflect the rule of law situation in the country, including open non-compliance with the CJEU’s own rulings, and leads to three undesired consequences: (1) the EU General Court disregards the landmark ECtHR decision in KlimaSeniorinnen on NGO locus standi, creating divergence between the two courts on account of a formalistic interpretation of the case, which ignores structural issues on the ground; (2) it denies much needed representation and protection to national judges and prosecutors, whom CJEU President Lenaerts defined as “essential building block[s] of the EU’s constitutional structure”, especially in the context of systematic curtailment of judicial independence via inter alia arbitrary disciplinary proceedings; and (3) it has the unwanted consequence of de facto shielding EU political institutions from judicial accountability in situations where they disregard systemic rule of law deficiencies for political or geopolitical reasons.

Background of the case

The dispute at hand revolves around Commission Decision 2023/1786, repealing Decision 2006/928, which created the Cooperation and Verification Mechanism (CVM), an ad hoc instrument (of dubious quality) meant to establish a post-accession conditionality and oversight framework to ensure that Romania and Bulgaria achieve rule of law compliance. The Mechanism included a series of benchmarks relating to the judiciary and the anti-corruption system, on top of additional recommendations made by the Commission upon its cyclical assessment of progress, or lack thereof. Crucially, the CVM had already been at the centre of litigation before the CJEU (sometimes referred to as the “Romanian rule of law saga”, including in this blog), in which the Court established that the disputed provision in the CVM had a direct effect. According to the 2021 CJEU judgment in Romanian Judges, national authorities have both a positive obligation to adopt appropriate measures in line with the CVM, and a negative obligation to refrain from implementing measures that jeopardise those benchmarks being met. In September 2023, the CVM was officially repealed, considering that Romania had satisfactorily met the desired benchmarks by reforming its justice system over the past few years.

However, the Commission’s assessment was highly contentious due to alleged manifest errors of law and fact, given that evidence (including from the Commission’s own CVM reports) suggested that the benchmarks were not fulfilled. Ostensibly, the measure was terminated on account of recent cosmetic reforms, while the Commission ignored all signs of ongoing rule of law violations. Overall, it appears that the adoption of legislation, rather than its actual implementation – which the Commission itself had a duty to monitor under the CVM – was accepted as grounds for the termination of the instrument. As to why the Commission came to this conclusion, a combination of conditionality and reform fatigue, and competing geopolitical interests are to blame. It is not a coincidence that the timing aligned with Romania’s long-awaited entry into Schengen, itself seen as a move to curb Eurosceptic turmoil in the country.

The Decision immediately drew well-founded criticism. The applicant, Asociația Inițiativa pentru Justiție (the Association), sought its annulment on the basis that it directly affects its members, as the absence of monitoring increasingly exposes the judges and prosecutors to arbitrary disciplinary proceedings. The monitoring was previously carried out through a dialogue with stakeholders and watchdogs on the ground, including the applicant Association itself. Additionally, they claimed the CVM is still very much needed, as insidious practices persist within the system, including: a high degree of politicisation in the judicial appointment procedures; retaliation against judges critical of reforms and similar “control” tactics by the Superior Council of Magistracy (p. 28-29); a disciplinary regime already found to be problematic by the CJEU; and the elephant in the room, the Romanian Constitutional Court’s 2021 decision, in response to the CJEU’s ruling in Romanian Judges, insisting on preventing national courts from applying EU law when it requires the disapplication of a national provision previously declared compliant with the Constitution. Indeed, the first judge to apply the Romanian Judges ruling domestically was subject to disciplinary proceedings, and even if no sanction came from it, the action sent a clear message to the judiciary, and as such caused a chilling effect.

The order of the General Court

In its order, the GC embraced the Commission’s argument that the Association did not meet the criteria established in previous case law (Armando Carvalho). According to this precedent, a NGO passes the 1963 Plaumann test on “direct concern” when it acts, inter alia, “on behalf of its members, whose interests it defends” or when “its own interests as an association are affected, in particular because its negotiating position has been affected by the act in respect of which annulment is sought”.

The GC took a narrow view of the aforementioned case law, coming to the conclusion that despite having direct effect, the CVM did not confer any rights to prosecutors directly, or to the Association in its own right, as that was not the purpose of the measure. It stated that “to hold otherwise would mean that the repeal of any EU rule recognised as having direct effect, directly affects the legal situation of all individuals who were able, prior to that repeal, to rely on that rule against a national rule” [para 62 of the Order].

The GC further determined that lifting the CVM does not in any way reduce access to judicial protection for judges or prosecutors, who may be subject to abusive disciplinary proceedings, since they can rely on Article 19 TEU before relevant domestic bodies.

However, the GC’s reasoning is unconvincing for a number of reasons.

The rejection of Klima

Interestingly, this was the first annulment case launched by an NGO in which the GC considered the new approach introduced by the European Court of Human Rights in relation to the legal standing of associations in KlimaSeniorinnen v Switzerland. However, the GC chose not to apply the reasoning of the ECtHR, citing the need to ensure that consistency between the Charter and ECHR did not adversely affect the autonomy of EU law. Instead, it held that adopting the ECtHR’s rules for standing would amount to setting aside the requirement for direct concern.

The landmark ECtHR Klima ruling, in which an association was granted locus standi, marked a departure from Strasbourg’s usual stance. The ECtHR interprets the term “victim” under Article 34 ECHR as persons who are directly, indirectly, or potentially affected by alleged violations of the Convention. There must be a link between a victim and the harm which forms the basis of the claim. In the Klima ruling, the ECtHR stated that the issues of victim status and legal standing are separate. Thus, an association may be granted standing to represent victims without having to prove victim status itself. Furthermore, it recognised that this type of representation is often the more accessible, and sometimes the only way, for individuals to defend their interests, and as such, highlighted the importance of allowing interpretations of both victim status and locus standi to evolve with the changing circumstances and needs of society. Ultimately, it ruled that the applicant association had legal standing to bring a complaint regarding “the threats arising from climate change […] on behalf of those individuals who may arguably claim to be subject to specific threats or adverse effects of climate change on their life, well-being and quality of life as protected under the Convention” [para 524].

The argument for transposing this rationale into the EU legal system was made by Piet Eeckhout on this blog, in which he argued that the CJEU’s insistence that the right to an effective remedy “cannot have the effect of setting aside the conditions expressly laid down” in Article 263 TFEU is “besides the point” at least in the area of climate change as “those conditions must also be interpreted in the light of other provisions of EU law”. As the ECtHR put it, “specific considerations” related to climate change weigh in favour of granting standing to associations as representatives of those whose rights are affected, and could not themselves, for various reasons, file legal action [para 498].

However, although the ECtHR noted “specific considerations” relating to climate change as the central issue in this case, this does not necessarily mean that its intention was to imply that this is the only context in which associations can be granted standing more widely (p. 38). Case in point, as argued by the applicant in Romanian Prosecutors, the considerations relating to rule of law protection and its importance are comparable to those related to climate protection. Indeed, mutatis mutandis, it could be inferred that one should interpret EU rules more broadly in order to increase access to remedies for associations of judges and prosecutors (protected under Article 47 of the Charter).

Nonetheless, the GC rejected this argument. Firstly, it declared that that alignment with Strasbourg jurisprudence in this case would amount to setting aside the condition of direct concern, which Luxembourg is not bound to do, as it is within its powers to ensure consistency with the ECtHR only as long as it does not adversely affect the autonomy of EU law [para 79 of the Order].

Secondly, it stated that associations can still challenge the validity of EU acts through preliminary ruling proceedings via national courts, reaffirming that member states have an obligation to establish an effective system of legal remedies. Yet, the crux of the case is that prosecutors belonging to the Association might face disciplinary measures in retaliation for suggesting preliminary rulings, as well as judges who request them. There is also the fact that CVM-related case law by the CJEU remains largely unimplemented due to rejection of primacy from national courts. As a result, the insistence on relying on domestic remedies de facto trumps actual protection of EU values.

An argument that “special considerations” should be made, in line with Klima, to recognise the unique, systemic issues caused by rule of law backsliding vis-à-vis judicial protection, would not sacrifice EU autonomy. Rather, it would allow the CJEU to break free of its own case law, the 1963 Plaumann-test, which has become outdated and inadequate under current circumstances when national systems may no longer guarantee sound respect of Article 19(1) TEU and 47 CFR. Additionally, a likely unintended consequence of this decision is that it poses challenges to the Bosphorus doctrine, the prospect of EU accession to the ECHR, and the assumption of equal protection of rights across the two organisations. As noted before on this blog, when it comes to the right to fair trial, there is increasingly more divergence than convergence, and it seems that the GC has missed an opportunity to reverse this trend.

Incidentally, the Luxembourg Court has been slow in acknowledging the rule of law related case law of its Strasbourg counterpart. For example, the ECtHR has been prompter and more willing to address the paradoxical situation of Polish “fake judges” (e.g. Xero Flor, Advance Pharma, Reczkowicz, Dolińska-Ficek and Ozimek). In that circumstance, albeit with a delay, the CJEU eventually caught up. One would hope the same will happen in this context, where the Court has a second chance to revise its rules in the upcoming appeal to the Medel and others v Council case.

Denying additional remedies in time of rule of law crisis

However, this is not the only reason why this conceptualisation of direct concern is dissatisfactory. Indeed, this approach fails to acknowledge that, much like climate change in Klima, there is a much larger public interest at stake – namely the protection of fundamental values.

Respect for the rule of law in Romania continues to be problematic, despite the Commission’s assessment. The CVM itself is emblematic of Romania’s complicated history with EU values, characterised by high-level political corruption and related issues with regard to judicial independence. Despite its activation in 2007, conditionality did not prevent various periods of backsliding, including a constitutional crisis in 2012, and lasted much longer than originally expected.

Moreover, recent case law before the CJEU originating from Romania should have raised additional red flags. The rulings of the CJEU highlighted many instances in which judicial independence standards were not met by Romanian courts, which violated the CVM in conjunction with Article 19 TEU and 47 CFR. Not taking into consideration these decisions when terminating the CVM, and not starting infringement actions when it had a stronger legal basis to do so, exposes the Commission’s failure to act, which rendered the Mechanism effectively toothless. Notwithstanding lack of action from the Commission, one possible avenue for enforcement of EU law remains through preliminary rulings. However, as demonstrated by these recent cases, the Romanian Constitutional Court is unwilling to give effect to CJEU rulings, even after the CJEU specified that it was clearly contrary to EU law. Additionally, as mentioned above, prosecutors and judges who recommend or make preliminary rulings may be subjected to highly politicised disciplinary actions.

The fact that the Constitutional Court reaffirmed its own supremacy and rejected primacy of EU law is even more concerning because disregarding decisions of the Constitutional Court can expose judges and prosecutors to sanctions, even if the CJEU finds that those decisions are incompatible with EU law (see Lin). In this case, the GC’s assessment that prosecutors can simply rely on domestic remedies, is not reconcilable with the practicalities of the current situation.

The need for oversight at EU level

Enforcing EU values has become increasingly difficult in recent years, not least due to lack of sufficient oversight from the Commission, as the body entrusted with the power and duty to do so. Studies have found that rule of law-related infringements are launched comparatively less frequently than other actions and have not kept up with the pace of rule of law backsliding across several member states.

The burden has fallen onto individuals, including judges acting as applicants, and in many cases associations (the seminal Portuguese Judges case for starters, but also the equally watershed Repubblika, and various cases brought by an association of Romanian judges (I, II, III), to name a few), who request preliminary rulings through their national courts. However, this becomes problematic when the judicial system is captured on an industrial scale, and judges are no longer de facto (e.g. due to intimidation or retaliatory measures) or de jure able to avail of dialogue with the CJEU. An emblematic example is the dismissal of several cases referred by unlawfully appointed judges in Poland, on the basis that they did not constitute a court or tribunal established by law for the purposes of Article 267 TFEU (see Krajowa Rada Sądownictwa and Joined Cases G. and Others). This thus further reduces access to judicial remedies.

Moreover, the mechanisms under Articles 258 and 267 TFEU concern national violations of EU law, while Article 263 is specifically designed to address instances in which EU institutions themselves fall short of fulfilling their Treaty obligations by passing legislation that does not align with them. This includes failure to uphold values under Article 2 TEU in respect of a specific member state. As such, annulments might become the only avenue that stakeholders have to achieve a threefold objective. Firstly, it would allow them to obtain supranational oversight into the domestic sphere (through the CJEU demanding that the Commission reinstates conditionality mechanisms like the CVM or the Recovery and Resilience Facility – see Medel). Secondly, on a related note, it would ensure that the recent EU conditionality regime and similar innovative instruments do not become paper tigers, due to political compromise and lack of meaningful enforcement.

Last, but not least, they would allow public interest groups (in this case associations of judges and prosecutors) – who constitute the fundamental building blocks of the EU legal system – to hold EU institutions accountable, in line with the Treaties, so as to prevent further erosion of the rule of law. The EU is currently facing accusations of complicity and enabling behaviour as pertains to abuse of its values when it suits its political agenda. One only has to think of the Faustian bargain the Commission made to appease Hungary at the end of 2023, or the human rights abuses the Union has actively or implicitly supported at its Southern border to manage migration flows. If the CJEU continues to interpret its rules so narrowly, mostly due to a severe case of path dependency, it risks becoming bystander to a new kind of democratic deficit, encompassing both the EU institutions and the member states, which compromises fundamental values and the credibility of the European integration project.

Much like Klima, the Romanian Prosecutors case “speaks of the need for a remedy against failure to act or inadequate action”. Limiting legal standing in annulment actions by applying a narrow interpretation of direct concern continues to deny a much-needed remedy to individuals and associations in the front line of the defence of EU values. Indeed, when member states stop playing by the rules, and EU institutions themselves make concessions to achieve their political goals, the presumption of mutual trust and sincere cooperation is jeopardised. Not harvesting the full potential of Article 263(4) TFEU actions to challenge institutions failing to fulfil their duties is therefore a crucial missed opportunity.