Opinion of Advocate General Bobek delivered on 23 September 2020.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• ECLI: ECLI:EU:C:2020:746
• Date: 23 September 2020

Provisional text

OPINION OF ADVOCATE GENERAL

BOBEK

delivered on 23 September 2020(1)

Joined Cases C‑83/19, C‑127/19 and C‑195/19

Asociaţia ‘Forumul Judecătorilor din România’

v

Inspecţia Judiciară

(Request for a preliminary ruling from the Tribunalul Mehedinţi (Regional Court, Mehedinţi, Romania))

and

Asociaţia ‘Forumul Judecătorilor din România’,

Asociaţia ‘Mişcarea pentru Apărarea Statutului Procurorilor’

v

Consiliul Superior al Magistraturii

(Request for a preliminary ruling from the Curtea de Apel Alba Iulia (Court of Appeal, Alba Iulia, Romania))

and

PJ

v

QK

(Request for a preliminary ruling from the Curtea de Apel Bucureşti (Court of Appeal, Bucharest, Romania))

Case C‑291/19

SO

v

TP and Others

(Request for a preliminary ruling from the Curtea de Apel Braşov (Court of Appeal, Braşov, Romania))

Case C‑355/19

Asociaţia ‘Forumul Judecătorilor din România’,

Asociaţia ‘Mişcarea pentru Apărarea Statutului Procurorilor’,

OL

v

Parchetul de pe lângă Înalta Curte de Casaţie şi Justiţie — Procurorul General al României

(Request for a preliminary ruling from the Curtea de Apel Piteşti (Court of Appeal, Piteşti, Romania))

(Reference for a preliminary ruling – Treaty of Accession of the Republic of Bulgaria and Romania to the European Union – Commission Decision 2006/928/EC establishing a Mechanism for Cooperation and Verification (MCV) – Nature and legal effects of the MCV and of the reports established by the Commission on its basis – Interim appointment of the management of the Judicial Inspection – National rules on the establishment and organisation of a section within the Public Prosecutor’s Office for the investigation of offences committed within the judiciary – Article 47 of the Charter of Fundamental Rights of the European Union – Second subparagraph of Article 19(1) TEU – Rule of law – Judicial independence)

Table of contents

I. Introduction

II. Legal framework

A. EU law

1. Primary law

2. The MCV Decision

B. Romanian law

1. The Romanian Constitution

2. Provisions relating to the Judicial Inspection

(a) Law No 317/2004

(b) Emergency Ordinance No 77/2018

3. Provisions relating to the Section for the Investigation of Offences committed within the Judiciary

(a) Law No 207/2018

(b) Emergency Ordinance No 90/2018

(c) Emergency Ordinance No 92/2018

(d) Emergency Ordinance No 7/2019

(e) Emergency Ordinance No 12/2019

III. Facts, national proceedings and the questions referred

A. Case C83/19

B. Case C127/19

C. Case C195/19

D. Case C291/19

E. Case C355/19

F. The procedure before the Court

IV. Analysis

A. Admissibility of the questions referred

1. C83/19

2. C127/19 and C355/19

3. C195/19 and C291/19

4. Interim conclusion on admissibility

B. Relevant EU law and yardsticks

1. The MCV

(a) Are the MCV Decision and the MCV reports acts of the European Union?

(b) Is the Treaty of Accession a proper legal basis?

(1) Formal legal basis

(2) Content and objectives

(3) Duration of the MCV

(4) Interim conclusion

(c) The legal effects of the MCV

(1) The legal effects of the MCV Decision

(2) The legal effects of the MCV reports

(d) Do the national measures at issue fall within the scope of the MCV?

2. The principle of judicial independence: Article 47 of the Charter and/or Article 19(1) TEU

(a) Article 47 of the Charter

(b) Article 19(1) TEU

(c) Article 19(1) TEU and the dangers of gates which are too open

3. The yardsticks and the nature of the assessment

(a) The yardsticks: the external aspects of judicial independence and the doctrine of appearances

(b) The nature of the assessment: what is to be established

C. Assessment of the national provisions at issue

1. General Context

2. Interim appointment of the management of the Judicial Inspection

(a) The order for reference and the position of the parties

(b) Analysis

(c) Interim conclusion

3. Section for the Investigation of Offences Committed within the Judiciary

(a) The orders for reference and the positions of the parties

(b) Analysis

(i) Justification

– Unambiguous and accessible justification?

– Genuine justification?

(ii) Guarantees

(iii) Context and practical functioning

(iv) Reasonable deadline

(c) Interim conclusion

V. Conclusion

I. Introduction

1. The present cases concern two institutional aspects of the Romanian judicial system that have recently been amended through the reform of the so-called ‘Justice Laws’ (2) in that Member State. In essence, the five requests for a preliminary ruling examined together in this Opinion concern, on the one hand, the interim appointment of the head of the Inspecția Judiciară (Judicial Inspection, Romania) and, on the other, the creation of a section within the Public Prosecutor’s Office, responsible for the investigation of offences committed within the judiciary. (3)

2. There are, however, two preliminary issues that are common to all those cases, which must be addressed at the outset. First, what is the legal nature and effects of the ‘Mechanism for Cooperation and Verification’ (‘the MCV’), (4) established by Commission Decision 2006/928/EC? (5)

3. On the basis of the MCV, the European Commission issues periodic reports. In its report published in 2018,(6) the Commission identified several problematic aspects relating to the recent reforms in the Romanian judicial system which form the subject matter of the present reference for a preliminary ruling. Against that background, the referring courts sought clarification on the legal status of the MCV and the Commission’s reports, in particular in order to ascertain whether the recommendations contained in the Commission’s reports are binding on the Romanian authorities.

4. Furthermore, while querying the compatibility of the national legislative changes with the principles of the rule of law, effective judicial protection, and the independence of the judiciary, the questions referred point to a number of provisions of primary law, in particular to Article 2 TEU; the second subparagraph of Article 19(1) TEU; and the second paragraph of Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’). The second preliminary issue in need of clarification is therefore which of these provisions are applicable in the present cases, in the particular post-accession context of Romania within which the MCV remains applicable.

II. Legal framework

A. EU law

1. Primary law

5. In accordance with Article 4(3) of the Treaty on the accession of the Republic of Bulgaria and Romania to the European Union (‘the Treaty of Accession’), (7) the institutions of the Union may adopt before accession, inter alia, the measures referred to in Articles 37 and 38 of the Act concerning the conditions of accession of the Republic of Bulgaria and Romania (‘the Act of Accession’).(8)

6. Article 2 of the Act of Accession provides that, from the date of accession, the provisions of the original Treaties and the acts adopted by the institutions before accession are to be binding on Romania and are to apply under the conditions laid down in the Treaties and the Act of Accession.

7. Article 37 of the Act of Accession states that: ‘If Bulgaria or 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.’

8. Article 38 of the Act of Accession states: ‘If there are serious shortcomings or any imminent risks of such shortcomings in Bulgaria or 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 Bulgaria or 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...