Opinion of Advocate General Collins delivered on 20 January 2022.

• Jurisdiction: European Union
• Date: 20 January 2022
• Court: Court of Justice (European Union)

Provisional text

OPINION OF ADVOCATE GENERAL

COLLINS

delivered on 20 January 2022(1)

Case C‑430/21

RS

(Effect of the decisions of a constitutional court)

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

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

I. Introduction

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

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

3. In the judgment of 18 May 2021, Asociaţia “Forumul Judecătorilor din România” and Others (C‑83/19, C‑127/19, C‑195/19, C‑291/19, C‑355/19 and C‑397/19, EU:C:2021:393) (‘the judgment in Asociaţia Forumul Judecătorilor din România’) (2), the Court held, inter alia, that national legislation providing for the creation of the SIIJ is contrary to EU law where its establishment is not justified by objective and verifiable requirements relating to the sound administration of justice and is not accompanied by specific guarantees identified by the Court.(3)

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

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

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

II. Romanian law

A. The Romanian Constitution

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

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

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

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

B. The Code of Criminal Procedure

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

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

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

C. Law No 303/2004

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

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

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

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

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

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

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

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

18. According to the referring court, in the judgment in Asociaţia Forumul Judecătorilor din România, the Court held that Article...