Court of Justice of the European Union (“CJEU”): In a reference for preliminary ruling filed by the Court of Appeal, Romania before the Court, the matter was pertaining to the incompatibility of a national legislation with the EU law, that was challenged in the trial court in Romania on the grounds of illegality and threat to the independence of judiciary in the country. The First Chamber composed of A. Arabadjiev, President of the Chamber, L. Bay Larsen (Rapporteur), Vice-President of the Court, T. von Danwitz, A. Kumin and I. Ziemele, Judges, A.M. Collins, Advocate General and A. Calot Escobar, Registrar, ruled that EU law does not prevent a national law which excludes, professional associations of judges from challenging the appointment of prosecutors competent to conduct criminal prosecutions against judges, by requiring the existence of a legitimate private interest to be established in order for such an action to be admissible.
Background
The reference for preliminary ruling concerns the interpretation of Article 2, Article 4(3) and Article 19(1) of the Treaty on the European Union (“TEU”); Articles 12 and 47 of the Charter of Fundamental Rights of the European Union (“Charter”); and of the EU Commission Decision 2006/928/EC that established 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.
The request was made by the Court of Appeal of Romania (“CoA”) in the case pertaining the Association of ‘Forum of Judges of Romania (“applicants”) and Prosecutor General of the Public Prosecutor’s Office attached to the High Court of Cassation and Justice, Romania (“PICCJ) ” concerning the legality of an order issued by the Prosecutor General. The applicants had brought an action before the CoA seeking the partial annulment of an order appointing PICCJ prosecutors empowered to prosecute in the cases of corruption amongst judges and other prosecutors. The argument was that the Romanian legislation on which the order was based, was contrary to the EU law, and the legislation should have been rejected by the Prosecutor General.
The referring court applied the Romanian procedural rules and stated that an action for annulment in the main proceeding should be declared inadmissible, based on the premise that the Romanian legislation grants the right to challenge an administrative act to any person whose legitimate interest has been harmed. However, the legislation also provides that the persons governed by private law may claim a public interest only if the harm caused to that interest is out of a series of infringements of a subjective right or a legitimate private interest.
Based on a number of cases on associations before the High Court of Cassation and Justice (“HCCJ), it had found that the admissibility of an action is subject to a direct link between an administrative act affected by judicial review, and the purpose and objectives of the applicant association. Therefore, in the instant case, professional associations of judges did not have an interest to support instituting proceedings against the decisions related to the nomination of judges.
However, the referring court further emphasised that the applicants in the main proceedings sought to obtain judicial protection in an area covered by EU law. Therefore, it was necessary to determine whether the interpretation of the national procedural rules upheld by the HCCJ is contrary to Article 2 and 19(1) of the TEU read with Articles 12 and 47 of the Charter.
The referring court was doubtful of the compatibility of the new domestic legislation for the criminal prosecutions of judges and prosecutors, with the EU law, especially with Article 19(1) of the TEU, and also with the Romanian undertakings for the fight against corruption.
Therefore, the CoA stayed the proceedings and referred the afore-stated issues to the CJEU.
Issues and Court’s Analysis
1. Do Articles 2 and 19(1) of the TEU read with Articles 12 and 47 of the Charter preclude the initiation of certain legal proceedings by professional associations of judges through mandatorily stipulating the presence of a legitimate private interest which had been restricted by the HCCJ?
The Court highlighted the principle of the effective judicial protection of individuals’ rights under EU law, contained in Article 19(1) TEU, as a general principle of EU law stemming from the constitutional traditions common to the Member States, enshrined in Articles 6 and 13 of the Convention for the Protection of Human Rights and Fundamental Freedoms, to which Article 47 of the Charter corresponds. Therefore, as a principal practice, it is for the Member States to determine the standing and interest of a party to bring legal proceedings without undermining the right to effective judicial protection.
The Court noted that in certain circumstances, the Member States, in order to ensure observance of independence of judiciary, are required to provide for certain legal remedies permitting the lawfulness of national measures that have consequences for the careers of judges or the composition of national courts and tribunals to be reviewed. Thus, it means the disciplinary regime must provide necessary guarantees to prevent any risk of political control of the content of judicial decisions.
As regards the appointment of prosecutors competent to conduct criminal prosecutions against judges, the Court pointed out that Member States are required to provide an overarching guarantee that the action of those prosecutors is taken within a framework of effective rules which fully comply with the requirement of the independence of the judiciary. Rules adopted for that purpose must, inter alia, provide the guarantees necessary to ensure that such proceedings cannot be used as a system of political control over the activity of those judges and fully safeguard the rights enshrined in Articles 47 and 48 of the Charter.
It was further noted professional associations of judges are not, as a rule, directly concerned by the appointment of prosecutors, including where the latter are competent to conduct criminal prosecutions against judges. It was further pointed out that EU law does not require, in general, that specific procedural rights be granted to such associations. Therefore, it cannot be held that the sole fact that national legislation does not permit professional associations of judges to bring an action for annulment to challenge decisions relating to the appointment of prosecutors, suffices to create, in the minds of individuals, legitimate doubts as to the independence of judges.
Furthermore, a right for professional associations of judges to initiate legal proceedings against measures such as those at issue in the main proceedings also cannot be derived from Article 47 of the Charter.
2. Do Articles 2, 4(3) and 19(1) of the TEU, Annex IX of the accession instrument of Bulgaria and Romania, and the case 2006/928 preclude national legislation in the instant case?
The Court held that post answering on the first issue, there was no need to answer the second question.
Ruling by the Court The Court ruled that Articles 2 and 19(1) of the TEU, read with Articles 12 and 47 of the Charter must be interpreted as not precluding national legislation which, through the admissibility of an action for annulment challenging the appointment of prosecutors competent to conduct criminal proceedings against judges subject to the existence of a legitimate private interest, excludes such an action from being brought by professional associations of judges aiming to defend the principles of the independence of judiciary.
[Asociaţia ‘Forumul Judecătorilor din România’ v. Parchetul de pe lângă Înalta Curte de Casaţie şi Justiţie — Procurorul General al României, Case C-53/23, Decided on 08-05-2024]
