October 25
2020
Trajan Shipley
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23rd September 2020
Institutional law Justice & Litigation

AG Bobek: Interim appointment of Romanian Chief Judicial Inspector and establishment of specific prosecution section for members of the judiciary are contrary to EU law

Advocate General (AG) Bobek has delivered an Opinion in several preliminary references from Romanian courts concerning the rule of law. The cases at issue are the following:

  • Joined cases C-83/19, C-127/19, C-195/19, Asociaţia “Forumul Judecătorilor Din România”, Asociaţia “Forumul Judecătorilor Din România” and Asociaţia Mişcarea Pentru Apărarea Statutului Procurorilor
  • C-291/19, SO;
  • C-355/19, Asociaţia “Forumul Judecătorilor din România” and Others; and
  • C-397/19, Statul Român – Ministerul Finanţelor Publice

The cases concern whether the Cooperation and Verification Mechanism (MCV) established by Commission Decision 2006/928 to monitor Romania’s progress in areas of judicial reform and corruption is an act of an institution of the EU, and whether the requirements laid down in the reports prepared in the context of that mechanism are binding on Romania, which was not a Member State at the time of its adoption. 

In his Opinion, Advocate General Bobek suggests that the Court of Justice rule that Commission Decision 2006/928 establishing the MCV is an act of an EU institution in the sense of Article 288(4) TFEU, which was validly adopted by the EU legislature and is binding on Romania on the basis of its Treaty of Accession to the EU, along with all other EU binding acts. However, the AG considers that the periodic reports by the Commission on the basis of the MCV are not legally binding, and that national judges cannot rely on recommendations contained in such reports to set aside provisions of national law.

The Court was further asked to rule on the compatibility of a series of measures implemented by the Romanian government that the MCV reports evaluated negatively: the interim appointment of the head of the Judicial Inspection, the creation of a specific section in the Public Prosecution office to investigate offences committed within the judiciary and changes in provisions on material liability of judges. 

AG Bobek first proposes that the Court rule that EU law precludes national provisions whereby the government adopts, by derogation of applicable norms, a system for interim appointment of the head of a body in charge of carrying out disciplinary investigations within the judiciary. Any such body must demonstrate some degree of operational and investigative independence, especially when the practical effect of it is the reinstatement in office of a person whose mandate has already expired. Second, the Advocate General suggests the Court rule that EU law also precludes the establishment of a specific prosecution section with exclusive jurisdiction for offences committed by members of the judiciary, if it is not accompanied by sufficient guarantees against political influence. Finally, the AG advises the Court to rule that EU law does not preclude national provisions on State liability for judicial error and on the recovery action initiated by a Member State against the judge concerned in cases of bad faith or gross negligence, provided that those procedures offer sufficient guarantees as to judicial independence.

The Opinion is available here, and EU Law Live’s will soon be dedicating a Weekend Edition to explore the situation of the judiciary in Romania from an EU law perspective.

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