Asociaţia “Forumul Judecătorilor din România” and YN v Consiliul Superior al Magistraturii.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2023:628
• Date: 07 September 2023
• Docket Number: C-216/21
• Celex Number: 62021CJ0216
• Procedure Type: Reference for a preliminary ruling
• Court: Court of Justice (European Union)

Provisional text

JUDGMENT OF THE COURT (First Chamber)

7 September 2023 (*)

(Reference for a preliminary ruling – Decision 2006/928/EC – Mechanism for cooperation and verification of progress in Romania to address specific benchmarks in the areas of judicial reform and the fight against corruption – Article 2 TEU – Second subparagraph of Article 19(1) TEU – Rule of law – Charter of Fundamental Rights of the European Union – Article 47 – Independence of judges – National legislation altering the scheme for the promotion of judges)

In Case C‑216/21,

REQUEST for a preliminary ruling under Article 267 TFEU from the Curtea de Apel Ploieşti (Court of Appeal, Ploieşti, Romania), made by decision of 16 February 2021, received at the Court on 6 April 2021, in the proceedings

Asociația ‘Forumul Judecătorilor din România’,

YN

v

Consiliul Superior al Magistraturii,

THE COURT (First Chamber),

composed of A. Arabadjiev, President of the Chamber, P.G. Xuereb, T. von Danwitz (Rapporteur), A. Kumin and I. Ziemele, Judges,

Advocate General: N. Emiliou,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

– the Asociaţia ‘Forumul Judecătorilor din România’, by D. Călin and L. Zaharia, acting as Agents,

– the Consiliul Superior al Magistraturii, by M.B. Mateescu, acting as Agent,

– the Polish Government, by B. Majczyna, acting as Agent,

– the European Commission, by K. Herrmann, I. Rogalski and P.J.O. Van Nuffel, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 16 February 2023,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Article 2 TEU and the second subparagraph of Article 19(1) thereof, Article 267 TFEU, Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’), and 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 (OJ 2006 L 354, p. 56).

2 The request has been made in proceedings between the Asociaţia ‘Forumul Judecătorilor din România’ (‘Forum of Judges of Romania’ Association) and YN, on the one hand, and the Consiliul Superior al Magistraturii (Superior Council of Magistracy, Romania) (‘the SCM’), on the other, concerning the lawfulness of Decision No 1348 of 17 September 2019 of the Section for Judges of the SCM approving the Regulation on the organisation and conduct of competitions for the promotion of judges (‘Decision No 1348’).

Legal context

European Union law

The Treaty of Accession

3 Article 2 of the Treaty between the Member States of the European Union and the Republic of Bulgaria and Romania, concerning the accession of the Republic of Bulgaria and Romania to the European Union (OJ 2005 L 157, p. 11) (‘the Treaty of Accession’), which was signed on 25 April 2005 and entered into force on 1 January 2007, provides, in paragraphs 2 and 3 thereof:

‘2. The conditions of admission and the adjustments to the Treaties on which the Union is founded, entailed by [accession], which will apply from the date of accession until the date of entry into force of the Treaty establishing a Constitution for Europe, are set out in the Act annexed to this Treaty. The provisions of that Act shall form an integral part of this Treaty.

3. …

Acts adopted prior to the entry into force of the Protocol referred to in Article 1(3) on the basis of this Treaty or the Act referred to in paragraph 2 shall remain in force and their legal effects shall be preserved until those acts are amended or repealed.’

4 Article 3 of that treaty is worded as follows:

‘The provisions concerning the rights and obligations of the Member States and the powers and jurisdiction of the institutions of the Union as set out in the Treaties to which the Republic of Bulgaria and Romania become Parties shall apply in respect of this Treaty.’

5 Article 4(2) and (3) of the Treaty of Accession provides:

‘2. This Treaty shall enter into force on 1 January 2007 provided that all the instruments of ratification have been deposited before that date.

…

3. Notwithstanding paragraph 2, the institutions of the Union may adopt before accession the measures referred to in [Articles 37 and 38] of the Protocol referred to in Article 1(3). Such measures shall be adopted under the equivalent provisions in [Articles 37 and 38] of the Act referred to in Article 2(2), prior to the entry into force of the Treaty establishing a Constitution for Europe.

These measures shall enter into force only subject to and on the date of the entry into force of this Treaty.’

The Act concerning the conditions of accession of the Republic of Bulgaria and Romania and the adjustments to the treaties on which the European Union is founded

6 Article 37 of the Act concerning the conditions of accession of the Republic of Bulgaria and Romania and the adjustments to the treaties on which the European Union is founded (OJ 2005 L 157, p. 203) provides:

‘If … Romania has failed to implement commitments undertaken in the context of the accession negotiations, causing a serious breach of the functioning of the internal market, including any commitments in all sectoral policies which concern economic activities with cross-border effect, or an imminent risk of such breach the Commission may, until the end of a period of up to three years after accession, upon motivated request of a Member State or on its own initiative, take appropriate measures.

Measures shall be proportional and priority shall be given to measures which least disturb the functioning of the internal market and, where appropriate, to the application of the existing sectoral safeguard mechanisms. Such safeguard measures shall not be invoked as a means of arbitrary discrimination or a disguised restriction on trade between Member States. The safeguard clause may be invoked even before accession on the basis of the monitoring findings and the measures adopted shall enter into force as of the first day of accession unless they provide for a later date. The measures shall be maintained no longer than strictly necessary and, in any case, shall be lifted when the relevant commitment is implemented. They may however be applied beyond the period specified in the first paragraph as long as the relevant commitments have not been fulfilled. In response to progress made by the new Member State concerned in fulfilling its commitments, the Commission may adapt the measures as appropriate. The Commission shall inform the Council in good time before revoking the safeguard measures, and it shall take duly into account any observations of the Council in this respect.’

7 Article 38 of that act provides:

‘If there are serious shortcomings or any imminent risks of such shortcomings in … Romania in the transposition, state of implementation, or the application of the framework decisions or any other relevant commitments, instruments of cooperation and decisions relating to mutual recognition in the area of criminal law under Title VI of the EU Treaty and Directives and Regulations relating to mutual recognition in civil matters under Title IV of the EC Treaty, the Commission may, until the end of a period of up to three years after accession, upon the motivated request of a Member State or on its own initiative and after consulting the Member States, take appropriate measures and specify the conditions and modalities under which these measures are put into effect.

These measures may take the form of temporary suspension of the application of relevant provisions and decisions in the relations between … Romania and any other Member State or Member States, without prejudice to the continuation of close judicial cooperation. The safeguard clause may be invoked even before accession on the basis of the monitoring findings and the measures adopted shall enter into force as of the first day of accession unless they provide for a later date. The measures shall be maintained no longer than strictly necessary and, in any case, shall be lifted when the shortcomings are remedied. They may however be applied beyond the period specified in the first paragraph as long as these shortcomings persist. In response to progress made by the new Member State concerned in rectifying the identified shortcomings, the Commission may adapt the measures as appropriate after consulting the Member States. The Commission shall inform the Council in good time before revoking the safeguard measures, and it shall take duly into account any observations of the Council in this respect.’

Decision 2006/928

8 Under Article 1 of Decision 2006/928:

‘Romania shall, by 31 March of each year, and for the first time by 31 March 2007, report to the Commission on the progress made in addressing each of the benchmarks provided for in the Annex.

The Commission may, at any time, provide technical assistance through different activities or gather and exchange information on the benchmarks. In addition, the Commission may, at any time, organise expert missions to Romania for this purpose. The Romanian authorities shall give the necessary support in this context.’

9 Article 2 of that decision provides:

‘The Commission will communicate to the European Parliament and the Council its own comments and findings on Romania’s report for the first time in June 2007.

The Commission will report again thereafter as and when required and at least every six months.’

10 The annex to Decision 2006/928 provides:

‘Benchmarks to be addressed by Romania, referred to in Article 1:

1. Ensure a more transparent, and efficient judicial process notably by enhancing the capacity and accountability of the Superior Council of Magistracy. Report and monitor the impact of the new civil and penal procedures codes.

…’

Romanian law

Law No 303/2004

11...