T.A.C. v Agenția Națională de Integritate (ANI).

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2023:367
• Date: 04 May 2023
• Docket Number: C-40/21
• Celex Number: 62021CJ0040
• Court: Court of Justice (European Union)

Provisional text

JUDGMENT OF THE COURT (First Chamber)

4 May 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 – Charter of Fundamental Rights of the European Union – Article 15(1) – Article 47 – Article 49(3) – Elective public office – Conflict of interests – National legislation prohibiting the holding of elective public office for a predetermined period – Penalty additional to the termination of the term of office – Principle of proportionality)

In Case C‑40/21,

REQUEST for a preliminary ruling under Article 267 TFEU from the Curtea de Apel Timişoara (Court of Appeal, Timişoara, Romania), made by decision of 12 November 2020, received at the Court on 26 January 2021, in the proceedings

T.A.C.

v

Agenția Națională de Integritate (ANI),

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,

having considered the observations submitted on behalf of:

– T.A.C., by T. Chiuariu, lawyer,

– the Agenția Națională de Integritate (ANI), by D. Chiurtu, O. Iacob and F.‑I. Moise, acting as Agents,

– the Romanian Government, by E. Gane and L. Liţu, acting as Agents,

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

– the European Commission, by L. Nicolae, P.J.O. Van Nuffel and M. Wasmeier, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 10 November 2022,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of 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), and of Article 15(1), Article 47 and Article 49(3) of the Charter of Fundamental Rights of the European Union (‘the Charter’).

2 The request has been made in proceedings between T.A.C. and the Agenția Națională de Integritate (ANI) (National Integrity Agency, Romania) concerning a report of that agency finding that he had infringed the rules governing conflicts of interest in administrative matters during his term of office as mayor.

Legal context

European Union law

3 Decision 2006/928 was adopted, in the context of Romania’s accession to the European Union envisaged for 1 January 2007, on the basis, inter alia, of Articles 37 and 38 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; ‘the Act of Accession’), which entered into force on 1 January 2007. Recitals 1 to 6 and 9 of that decision read as follows:

‘(1) The European Union is founded on the rule of law, a principle common to all Member States.

(2) The area of freedom, security and justice and the internal market, created by the Treaty on European Union and the Treaty establishing the European Community, are based on the mutual confidence that the administrative and judicial decisions and practices of all Member States fully respect the rule of law.

(3) This implies for all Member States the existence of an impartial, independent and effective judicial and administrative system properly equipped, inter alia, to fight corruption.

(4) On 1 January 2007, Romania will become a Member of the European Union. The Commission, whilst noting the considerable efforts to complete Romania’s preparations for membership, has identified remaining issues in its Report of 26 September 2006, in particular in the accountability and efficiency of the judicial system and law enforcement bodies, where further progress is still necessary to ensure their capacity to implement and apply the measures adopted to establish the internal market and the area of freedom, security and justice.

(5) Article 37 of the Act of Accession empowers the Commission to take appropriate measures in case of imminent risk that Romania would cause a breach in the functioning of the internal market by a failure to implement the commitments it has undertaken. Article 38 of the Act of Accession empowers the Commission to take appropriate measures in case of imminent risk of serious shortcomings in Romania in the transposition, state of implementation, or application of acts adopted under Title VI of the EU Treaty and of acts adopted under Title IV of the EC Treaty.

(6) The remaining issues in the accountability and efficiency of the judicial system and law enforcement bodies warrant the establishment of a mechanism for cooperation and verification of the progress of Romania to address specific benchmarks in the areas of judicial reform and the fight against corruption.

…

(9) The present Decision should be amended if the Commission’s assessment points at a need to adjust the benchmarks. The present Decision should be repealed when all the benchmarks have been satisfactorily.’

4 Article 1 of Decision 2006/928 provides:

‘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.’

5 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.’

6 Article 4 of the said decision states:

‘This Decision is addressed to all Member States.’

7 The annex to the same decision is worded as follows:

‘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.

2. Establish, as foreseen, an integrity agency with responsibilities for verifying assets, incompatibilities and potential conflicts of interest, and for issuing mandatory decisions on the basis of which dissuasive sanctions can be taken.

3. Building on progress already made, continue to conduct professional, non-partisan investigations into allegations of high-level corruption.

4. Take further measures to prevent and fight against corruption, in particular within the local government.’

Romanian law

8 Article 25 of legea nr. 176/2010 privind integritatea în exercitarea funcțiilor și demnităților publice, pentru modificarea și completarea legii nr. 144/2007 privind înființarea, organizarea și funcționarea Agenției Naționale de Integritate, precum și pentru modificarea și completarea altor acte normative (Law No 176/2010 on integrity in the performance of public duties and the holding of public office, amending and supplementing Law No 144/2007 on the establishment, organisation and operation of the National Integrity Agency, and amending and supplementing other normative acts) of 1 September 2010 (Monitorul Oficial al României, Part I, No 621 of 2 September 2010), provides:

‘(1) In the case where an individual has issued an administrative act, concluded a legal act, adopted a decision or participated in the adoption of a decision in breach of the legal obligations relating to conflicts of interest or to situations entailing incompatibility, his or her action shall constitute a disciplinary offence and shall be punished in accordance with the rules which apply to his or her office, function or relevant activities, in so far as the provisions of the present law provide no derogation therefrom and where the action does not constitute a criminal offence.

(2) An individual who has been relieved of his or her duties or dismissed from office in accordance with paragraph 1, or in respect of whom a conflict of interest has been established or a situation entailing incompatibility, shall no longer be entitled to perform the public duties or hold the public office to which the provisions of this law apply, with the exception of electoral duties, for a period of three years from the date on which he or she is relieved of his or her duties or dismissed from the public office in question or from the date on which his or her term of office terminates automatically. In the case where the individual has held public office, he or she shall no longer hold the same office for a period of three years from the end of his or her term of office. In the case where the individual no longer performs public duties or holds public office at the time when the situation entailing incompatibility or a conflict of interest is established, the three-year period of prohibition shall commence, in accordance with the law, on the date on which the assessment report becomes final or on the date on which a judicial decision confirming the conflict of interest or the situation entailing incompatibility becomes final and irrevocable.

…’

9 According to Article 66(1) of legea nr. 286/2009 privind Codul penal (Law No 286/2009 on the Criminal Code) of 17 July 2009 (Monitorul Oficial al României, Part I, No 510 of 24 July 2009), in the version in force at the time of the facts in the main proceedings (‘the Criminal Code’):

‘The additional penalty of a prohibition on the exercise of certain rights shall consist of the prohibition on exercising...