Although Romanian courts have been amongst the most proli c ones in addressing rule of law issues before the Court of Justice of the European Union (‘CJEU’) – no less than 24 requests for preliminary rulings until February 2023 – the topic of the Romanian rule of law saga has not, so far, been holistically explained (2). e aim of this analysis is thus to provide an overview of this complicated rule of law saga connecting the different “waves”ofcases,andtheirimpactonthenationaljurisprudentialandlegaldevelopments.
Between 2019 and 2022, various Romanian ordinary courts, among which the Supreme Court (‘HCCJ’), addressednolessthan24requestsforpreliminaryrulings(3) onvariousissuesrelatedtotheruleoflaw,suchasjudicial independence, the ght against corruption, the right to address preliminary references to the CJEU, and the principleofprimacyofEUlawoverde antnationalconstitutionalcaselaw Whereas,sinceRomania’saccession totheEU,theRomaniancourts(4),includingtheConstitutionalCourt(‘RCC’),havebeenopentowardsthejudicial dialogue with the CJEU (5), the recent Romanian rule of law saga opens a new chapter, that of strategic use of the preliminary reference procedure by ordinary courts to protect their independence, and a Constitutional Courtde anttoEuropeanjudicialdialogue.
1. Madalina Moraru is Assistant Professor at the Centre for Judicial Cooperation of the European University Institute, and awardee of the MUNI Award in Science and Humanities JUNIOR Her most recent publications include e Practice of Judicial Interaction in the Field of Fundamental Rights – e Added Value of the Charter of Fundamental Rights of the EU (with Federica Casarosa), and ‘ e growing but uneven role of European courts in (im)migration governance:acomparativeperspective’,EuropeanJournalofLegalStudies,2022,Vol.14,SpecialIssue,co-authoredwithVeronicaFedericoandPaolaPannia Raluca Bercea is Professor at the Law Faculty, West University, Timisoara, Romania, her most recent publication include e Report on Trust, Independence, Impartiality, Accountability and the Rule of Law in Romania in TRIIAL national reports Belgium, Hungary, Italy, Poland, Portugal, Romania, Slovenia, Spain, e Netherlands,EUIRSC,2022/52,CentreforJudicialCooperation, co-authoredwithSorinaSoroga
2. A few blogposts and journal articles have addressed only speci c episodes from the Romanian rule of law saga, such as: Madalina Moraru and Raluca Bercea, ‘ e First Episode in the Romanian Rule of Law Saga: Joined Cases C-83/19, C-127/19, C-195/19, C-291/19, C-355/19 and C-397/19, Asociaţia ‘Forumul Judecătorilor Din România, and eir Follow-up at the National Level’ (2022) 18 European Constitutional Law Review 82; David KosarandOndrejKadlec, ‘Romanian Version of theRule of Law Crisis Comes tothe ECJ: e AFJR Case IsNot Just abou he Cooperation and Veri cationMechanism’ (2022) 59 Common Market Law Review; Selejan-Gutan, Bianca: e Taming of the Court – When Politics Overcome Law in the Romanian Constitutional Court, ,VerfBlog 2018/6/06.
3. isisthenumberupuntilendofJanuary2023,howevermorerequestsareunderreviewforbeingaddressedtotheCJEU.
4. Dragos Efrim, Gabriela Zan r-Fortuna, and Madalina Moraru, e Hesitating Steps of the Romanian Courts Towards Judicial Dialogue on EU Law Ma ers (May7,2013).
5. e rstrequestfor a preliminaryruling wasmade byanordinarycourtonly a fewweeksa eraccession– C-33/07, Jipa, EU:C:2008:396, while the Romanian Constitutional Court also made a reference in 2013 – C-673/16, Coman, EU:C:2018:385. For a commentary on the judicial dialogue in the Coman case, see RalucaBercea‘Chapter15Comment:UnderArticle21EUChartertheCJEUhas,forthetimebeing,adoptedaratherdeferentialmodelofjudicialreview’,inFedericaCasarosa and Madalina Moraru (eds), e practice of judicial interaction in the eld of fundamental rights: the added value of the charter of fundamental rights of the EU, EdwardElgarPublishing,2022,pp.231-236.
A point of reference on primacy of EU law, judicial independence and rule of law standards
e recent Romanian rule of law saga opens a new chapter, that of strategic use of the preliminary reference procedure by ordinary courts to protect their independence, and a Constitutional Court de ant to European judicial dialogue
e socio-legal context of the cascade of subsequent referrals is one characterised by a populist justice reform adopted between 2017-2019 by a socio-democrat government, and systemic concerns raised by the operation of the judicial disciplinary regime. is justice reform has remained in force until this year, in spite of the governmental change in 2020, and wide criticism expressed byallrelevantEuropeanbodies
Moreover, the recent legislative amendments have raised concerns of being mere façade reforms, rather than addressing the de cit of rule of law compliance e Constitutional Court has further increased the rule of law de cit by making a U-turn in its previousfriendlyapproachtowardsEUlawimplementationandjudicial dialogue by blocking ordinary courts from the effective applicationofEUlawandpreliminaryrulingsontheruleoflaw
An overarching theme that runs throughout all the waves of requests is the con ict between EU law and constitutional jurisprudence, which places national judges on the horns of a dilemma: choosing between facing disciplinary sanctions for giving effect to EU law over national constitutional jurisprudence or the risk of engaging State liability for non-implementation of EU law due to following the constitutional jurisprudence. In this sense, while the newly amended legislation on the status of judges and prosecutors formally repeals the disciplinary liability of judges for not following the RCC decisions, one is to wonder whether the old disciplinary offence was not takenoverinthecontentofanewone(6).
e triggers of the Romanian RoL saga: a populist justice reform, an EU law de ant Constitutional Court, and targeteddisciplinaryproceedings
Since its accession, Romania has been subject to the Cooperation and Veri cation Mechanism (‘CVM’) (7), a tool overseeing progress in the area of justice reform and ght against corruption, designed as a transitional measure, to be li ed when all the relevant benchmarks would have been reached. A er a decade of CVM implementation, the European Commission found, in 2017, that there were only 12 remaining recommendations before closingtheCVM(8).However,thisprogresswasreversedbyrushedexceptionalexecutiveprocedures(i e ,Emergency Governmental Ordinances) amending the three main laws on justice (9). e justice reform carried out between 2017-2019 (10) signi cantly pushed back the ght against corruption and the judicial independence mainly by making judges and prosecutorssubject to separate criminal investigation by a new institution (the Sec-
6.LawNo 303of15November2022onthestatusofjudgesandprosecutorspublishedintheOJNo 1102of16November2022.
Decision 2006/928/EC cialreformandthe ghtagainstcorruption, [2006]OJL354/56.
While the newly amended legislation on the status of judges and prosecutors formally repeals the disciplinary liability of judges for not following the RCC decisions, one is to wonder whether the old disciplinary offence was not taken over in the content of a new one
tion for the Investigation of Offences commi ed within the Judiciary, ‘SIOJ’), which was largely ineffective, given an understaffed structure, and had overly close ties with the executive (11). e SIOJ would have taken over the competence to investigate corruption cases from the well-equipped and successful National AntiCorruptionDirectorate,createdundertheCVM.
Meanwhile, the justice reform carried out between 2017-2019 conferred extensive powers and prerogatives on the Chief Inspector to appoint judicial inspectors and control their activities, with minimal oversight of its actions. For instance, the Deputy Chief Inspector of the Judicial Inspectorate is the one responsible for overseeing the investigation of complaints made against its Chief Inspector and any disciplinary investigations and proceedings that might arise therefrom. However, the Deputy Chief Inspector is not independent from the Chief Inspector, as he or she is appointed at the sole discretion of the Chief Inspector and his or her term of office depends upon, and coincides with, that of the Chief Inspector (12). Moreover, shortly a er the amendment of the
8. Report from the Commission to the European Parliament and the Council on Progress in Romania under the Cooperation and Veri cation Mechanism, COM(2017)44 nalof25January2017.
9.LawsNos 303/2004,304/2004and317/2004.
10.Foracommentaryofthejusticereform,seeBiancaSelejan-Gutan:NewChallengesagainsttheJudiciaryinRomania,VerfBlog,2019/2/22.
11.ForamoredetailedcommentaryoftheSIOJ,seeMoraruandBercea(n1).
12. isisssueformstheobjectof CaseC-817/21,InspecţiaJudiciară,pending.
disciplinary proceedings, the last Chief Inspector was retroactively installed into office without following the regular appointment procedure, involving the Superior Council of Magistracy is was the same Chief Inspector who had opened disciplinary proceedings against the former president of the HCCJ, against the former chief prosecutor of the National Anticorruption Directorate (in the meantime the rst chief prosecutor of the European Public Prosecutor’s Office) (13) and against the judges and prosecutors who publicly protested against the justice reform. Under his leadership, the Judicial Inspectorate started in 2021 the disciplinary investigation of the rst judge who implemented the CJEU preliminary ruling in the AFJR case. He was accused of having acted in serious negligence for, de facto, giving effect to the CJEU judgment in the AFJR case over theRCCdecision(14).
e repeated use of Governmental Emergency Ordinances without parliamentary debate, ex ante constitutional control or legislative approval for amending the justice system proved that the reform was not an instrument for the reinforcement of the system, but a strategy to ensure that the extent of the changes and the level of politicalinterferencewithinthejusticesystemwouldgounnoticed.
e repeated use of Governmental Emergency Ordinances without parliamentary debate proved that the reform was not an instrument for the reinforcement of the system
eRCChadtheopportunitytoreversesomeoftheseamendments,inparticular those related to the creation and functioning of the SIOJ, being seized with exceptions of unconstitutionality However, it found most of these amendments constitutional, in spite of the repeated criticism voiced by the Venice Commission opinions, reports of the European Commission, and opinions of the Consultative Councils of Judges/Prosecutors in Europe or GRECO Moreover,in2018,theRCCchangeditsapproachtowards thelegally binding nature and direct effects of the CVM Decision and reports issued by the European Commission, rejecting their use as a benchmark in the context of a review of constitutionality under Article 148 of the Romanian Constitution (Decision no 104/2018) e RCC continued its de antpositiontowards primacyofEUlawandtheCJEUpreliminaryrulings by holding that the AFJR and Eurobox judgments could be implemented only if the constitution was changed (Decision 390/2021 and press release from 23 December 2021). e RCC reaffirmed the supremacy of the Constitution over EU law based on the constitutional identity basis and found the CJEU to have acted ultra vires when assessing the independence of national judicial bodies within the framework of the preliminary reference procedure. e RCC thus implicitly prohibited national courts from applying EU law once it had quali ed it as lacking a basis in the Romanian Constitution, an extreme stance given that non-compliance with constitutionalcase-lawwasquali edasadisciplinaryoffence(15)
AnoverviewoftheRomanianRoLrequestsforpreliminaryruling: strategic judicial dialogue to defend judicial independence and the roleofnationaljudgesasEUlawjudges
Several waves of rule of law referrals have so far reached the Court of Justice e requests belonging to the rst one were formulated between 20182019 and asked for the interpretation of the EU rule of law, the principle of judicial independence, the CVM Decision and European Commission Reports in regard to the interim appointment of the head of the Judicial Inspection, the creation of SIOJ, and the de nition and procedure of civil liabilityforjudicialerror(16)
and Sorina Doroga, the Romanianreport in R Aspe i, R Bercea, A Brás, F Casarosa, M. Catanzariti, S Doroga, M. Fajdiga, M. Ferri, Z. Fleck, R GiãoHanek, J Gwizdak, G Grasso, T T Koncewicz, Á Kovács, N. Lazzerini, D. M. Galera, M. Michalak, M. B. Moraru, A. Podolska, K. Podstawa, J. SolanesMullor, TRIIAL national reports Belgium, Hungary, Italy, Poland,Portugal, Romania,Slovenia,Spain, eNetherlands,EUIRSC,2022/52,CentreforJudicialCooperation.
16. , Joined Cases C-83/19, C-127/19, C-195/19, C-291/19, C-355/19, C-397/19, EU:C:2021:393 (‘AFJR’). For a commentary- Judgment of 18 May 2021 see:DavidKosarandOndrejKadlec,‘RomanianVersionof theRuleofLawCrisisComestotheECJ: eAFJRCaseIsNotJustabouttheCooperation andVeri cation Mechanism’(2022)59CommonMarketLawReview1823-1852.
e RCC reaffirmed the supremacy of the Constitution over EU law based on the constitutional identity basis and found the CJEU to have acted ultra vires15. For an extensive analysis of the Romanianrule of law context and its impact on the referrals, see Raluca Bercea
Shortly a er this rst wave, a second one focused on the relation between the principle of primacy of EU law and the RCC decisions in the eld of ghting corruption (17). e referring courts asked whether they could, pursuant to EU law, disapply certain decisions delivered by the RCC between 2016 and 2019, which would negativelyaffectboth nalandpendingcorruptionrelatedcasesagainstpoliticiansandpublicofficials.Inparticular, Decision 685/2018 obliged the HCCJ to select all the ve members of a panel judging in appeal corruption cases by drawing of lots, instead of just four of them, as was the case until then; Decision 417/2019 established an obligation upon the HCCJ to set up specialised panels to adjudicate on rst instance corruption offences; Decision51/2016,Decision302/2017andDecision26/2019prohibitedtheusebyprosecutorsandjudgesof evidence found by way of technical surveillance carried out by other specialised bodies of the Romanian Intelligence Service, although authorised by judges. ese Decisions were delivered a er the RCC had already heldthesupremacyoftheconstitutionoverEUlawbasedonanunde nedconstitutionalidentityconcept(Decision104/2018).
In all these cases, the panels at the HCCJ were looking at cases involving high-ranking politicians, including the leaders of the parties in the ruling coalition Moreover, following the RCC decisions, public officials already sentenced for high corruption offences could introduce extraordinary actions to reopen the proceedings, risking to close the criminal investigation due to time prescription erefore, several ordinary courts and the HCCJ expressed concern that RCC decisions might infringe the principles of primacy, judicial independence, rule of law, and the protection of the nancial interests of the Union. For the rst time in the history of the European judicial dialogue, ordinary courts also requested the CJEU to assess whether the rules of appointment andfunctioningofaconstitutionalcourts- RCC-compliedwiththeprincipleofjudicialindependence.
Following the preliminary ruling of the Court of Justice in the AFJR judgment, the RCC delivered a decision challenging the Court’s competence and ndings, and more generally the application of the principle of primacy of EU law (18). Namely, the RCC found that the determination of the organisation, functioning and delimitation of powers between the various structures of the prosecution authorities is a ma er for the exclusive competence of the Member State, without any exceptions. Relying on Articles 11, 20 and 148 (2) and (4) of theConstitution,theRCCstressedthatthepriorityofapplicationofEUlawshouldnotbeperceivedinthesense of ‘removing or disregarding the national constitutional identity’, a guarantee of the fundamental core identity of the Romanian Constitution, which ‘must not be relativised in the process of European integration’ e RCCfurtherconceivedconstitutionalidentityasrequiringthat‘thesupremacyofthefundamentallaw’should begranted‘throughoutRomania.’
However, when using the concept of ‘constitutional identity’ the RCC did not clarify either its scope or its content and disregarded Article 148, which requires compulsory, not elective, precedence of legally binding EU lawincaseofacon ictwithdomesticlaw InsteadofapplyingthecriteriaindicatedbytheCourtofJusticetoassess the independence of a judicial body, the RCC developed a formalist approach according to which, since
the same values were enshrined in both the national constitution and the TEU, review of the constitutionality of national law excluded further questioning of its conformity with EU law by national ordinary courts As noncompliance with decisions of the RCC by magistrates was considered at that time a disciplinary offence (19), a systemicriskcouldhavebeentriggeredbyDecisionNo 390/2021,whichmighthavehadachillingeffectonnational judges ful lling their EU law mandate. For this reason, ordinary courts referred again to the Court of Justice seeking clari cation on: (1) whether Article 2 TEU and Article 47 of the Charter preclude a constitutional provision such as Article 148(2) of the RC as interpreted by the RCC according to which national courts have no jurisdiction to examine conformity with EU law of a provision in national law that was found to be constitutional by the RCC; and (2) whether the same principles preclude national provisions allowing for the initiation of disciplinary proceedings and the application of disciplinary penalties to a judge for failure to comply with a decision of the RCC by way of applying the primacy of EU law (third wave: Case C-430/21, RS; (20) Case C817/21,JudicialInspectionpending;(21) casesC-709/21,MK,andC-13/22,EFandOthersremoved).
e fourth wave of referrals raised a new issue, the conformity of a speci c procedure for the promotion of judges to the supreme court with judicial independence and rule of law requirements (C-216/21, AFJR (pending)). e h wave (C-817/21) touches on the reformed organisation and functioning of the Judicial Inspection, which was already anticipated in the rst wave (AFJR case) and the current pending Judicial Inspection case e sixth wave (C-205/22, C D ) aims to clarify whether national judges are bound to give effect to the CVM Decision and European Commission Reports, in spite of the controversial RCC Decision 390/2021. e seventh and most recent referral, of 24 November 2022 (22), questions the newly regulated system of investigationofoffencescommi edbytheRomanianjudiciary(23).
19.AccordingtoArt.99(ș)of LawNo 303/2004,currentlyerasedunderthenewArt.271ofLaw303/2004amendedbyLaw303of22November2022. 20.Judgmentof22February2022, ,RS,EU:C:2022:9. CaseC-430/21
21. e Opinion of the AG was delivered on 26th of January 2022. For a commentary of this case, see Dragos Calin, Case C-817/21, , official- Inspecția Judiciară blogofunio,18January2022,.
22.Forthemomenttherequestsareavailableonlyontheportalofthereferringcourt 23.DragosCălin(n16).
primacy of EU law: new illustrations through the RomanianRoLsaga
reejudgmentshavesofarbeendeliveredbytheCourtofJustice in the Romanian rule of law saga: AFJR, Eurobox and RS (24). e notable contribution of the AFJR judgment is the clari cation of the legal nature and effects of the CVM Decision and the European Commission Reports, se ing out the judicial independence standards to be met by criminal, civil and disciplinary judicial liability mechanisms, and developing a new rule of law related principle – the principle of progression towardsachievingtheEUruleoflawstandards.
ImplicitapplicationoftheprincipleofprimacyofEUlaw:theCVMDecisionandEuropeanCommissionReports
e CVM Decision was found to be legally binding on all public authorities of the States, including the courts, and not just the political institutions as argued by the RCC, on the basis of Article 288(2) TFEU (25). Although the Decision was adopted before Romania’s accession to the EU, it was found to also produce effects postaccession without a xed time limit, until Romania will be considered to have satisfactorily achieved the rule of law benchmarks. In spite of the broad wording of the benchmarks on rule of law set out in the CVM Decision, the Courtfoundittohavedirecteffectatthenationallevel(26).
RegardingtheCVMReportsdra edbytheCommission,theCourtheldthattheyshouldalsoberegardedasacts of EU law concluded on the basis of Article 2 of the CVM Decision. While the Commission Reports lack direct effect, national authorities nevertheless are bound to ensure consistent interpretation of national provisions implementingtheCVMDecisionwiththerecommendationsincludedtherein,underArticle4(3)TEU(27).
CorrelativeprincipletotheprincipleofprimacyofEUlaw:theprincipleofprogressiontowardsachievingtheruleoflaw.
In the AFJR judgment, the Court of Justice developed the principle of progression towards achieving the EU rule of law standards, deduced from the positive obligation imposed on Romania to achieve progress on two key rule of law benchmarks: remedying de ciencies in the justice system and ghting corruption. e Court thus continues the dynamic approach to judicial independence, not just as prohibition on amending national legislation that would bring about a reduction in the protection of the rule of law, as introduced in the Repubblika judgment, but also as a positive obligation requiring all the organs of a member state to adopt measures that would achieve theruleoflawbenchmarks(28)
24.OpinionsofAdvocatesGeneralCollinsandEmiliou,respectively,havebeendeliveredintwoothercases:Case ,JudicialInspection& ,AFJR C-817/21 C-216/21
25.SeeAFJRjudgment,paras149,163.
26.Ibid, paras.172,176,178.
27.Ibid, para177.
28.Foramoreindepthexplanation oftheprincipleofprogressionseeMoraruandBercea(n1),101-103.
e notable contribution of the AFJR judgment is the clari cation of the legal nature and effects of the CVM Decision and the European Commission Reports
In Eurobox and RS, the Court of Justice spelled it out clearly for ordinary and constitutional courts across the EU that it alone has exclusive competence to interpret the principle of primacy of EU law, the scope of which could neither depend on interpretation of national law provisions nor on interpretation of EU law by any other court. Being confronted with more and more de ant constitutional courts, the Court repeated the se led Vand Gend en Loos and Internationale Handelsgesellscha rules, whereby primacy of EU law binds all the bodies of a Member State, without, inter alia, provisions of domestic law, including constitutional provisions, being able to prevent that. Incasu, the principle of primacy of EU law means that national courts cannot be pre-empted by national constitutional provisions or practice from not applying constitutional jurisprudence, when they consider, in the light of a preliminary ruling, that such case law is contrary to Article 19(1)(2) TEU, to Article 325(1) TFEUortotheCVMDecision InbothAFJRandRStheCourtunderlinedthatnationaljudgescannotbeexposed to disciplinary proceedings as a result of the fact that they are exercising their EU law mandate by submi ing preliminaryreferencesorenforcingpreliminaryrulings,evenif this wouldmeandisapplicationofnationalrules thatwerepreviouslyheldconstitutionalbytheRCC.
In Eurobox and RS, the Court of Justice spelled it out clearly for ordinary and constitutional courts across the EU that it alone has exclusive competence to interpret the principle of primacy of EU law
As regards the rules governing the SIOJ, the Court of Justice set out three main conditions this new institution has to ful l to be conform with Article 19(1)(2) TEU and Article 47 CFR: (1) be justi ed by objective and veri able requirements relating to the sound administration of justice; the Court noted that the explanatory memorandum to the law creating the SIOJ did not offer any justi cation for the reform relating to the sound administration of justice; (2) provide the necessary guarantees that the criminal proceedings cannot be used as a system of political controlovertheactivityofjudgesandprosecutors;theCourtconsideredthebroadcompetenceoftheSectioncovering also cases handled by the judges under investigation to be problematic; such a system, according to the Court, might allow complaints to be lodged unreasonably in order to interfere with and transfer to the special Section ongoing sensitive, high-pro le corruption cases, including cases which would otherwise belong to the National Directorate for Anti-Corruption; and (3) fully safeguard the right to a fair trial and the right to defence enshrined in Articles 47 and 48 CFR. e nal assessment was ultimately le to the referring court that should ‘take into accountalltherelevantfactorsofthenationallegalandfactualcontext.’(29)
It is noteworthy that although the Romanian rule of law cases, in particular the AFJR, could have been assessed under Article 47 CFR, due to the applicability of the CVM Decision which would trigger the application of the Charter, the Court decided, contrary to the AG Opinion to rely primarily on Articles 19(1)(2) and 2 TEU instead of Article 47 EU Charter as yardsticks for the judicial independence review. In this way, the Courtclari esthattherecannotbeavariablegeometryonjudicial independence in Europe, all Member States are bound by thesameuniformEUruleoflawframework
e European Commission (2021) Rule of Law Report (30) has noted: the still existing pressure on the national magistrates; a high level of perceived corruption; the lack of transparency in public spending and frequent legislative changes in Romania. Also, according to the European Commission, the level of perceived judicial independence in Romania has continued to be average among both the general public and the companies In response to the Report and to the Court of Justice’s preliminary ruling in the AFRJ case, the Romanian Government undertook the political commitment to address all pending recommendations, including the dismantling of SIOJ, and to support other necessary amendments to the justice laws, so as to comply with the requirements under the CVM. A previous memorandum was adopted for this purpose in January 2021 An initial dra law to dismantle the SIOJ was tabled in Parliament in February 2021. Despite its adoption in the Chamber of Deputies and a favorableVeniceCommissionopinion,thedra didnotpasstheSenate.
29.KosarandKadlec(n1). 30.Seen11.
e Court clari es that there cannot be a variable geometry on judicial independence in Europe, all Member States are bound by the same uniform EU rule of law framework
e government relaunched the process in January 2022 and, a er a shortened ten-day public consultation on a new dra and a positive opinion of the SCM, the Parliament adopted a law on 28 February 2022, while an upcoming Venice Commission opinion was pending. e SIOJ was dismantled in March 2022.
e European Commission (2022) Rule of Law Report notes the efforts of the the Government to adopt a new judicial strategy and a related action plan for 2022-2025, as well as the Anti-Corruption Strategy for 2021-2025, whose effective implementation relies however on political support to implement the legislative reforms. e Commission warns that while the SIOJ was dismantled, concerns on the new system for the investigation and prosecution of criminal offences in the judiciary remain (e.g., the legal regime of the disciplinary sanctions, as well as the extensive powers and lack of accountability of the Chief Judicial Inspector). e same concerns are expressed in the Opinion provided by the Venice Commission on 21 March 2022 (31), when it wonders whether the SIOJ underwent both a de jure and a de facto dismantling and whether the new structure was indeed fundamentally different from SIOJ Another concern is whether the new mechanism might be able to effectively ght corruption in thejudiciary.
Similarly, a er the entry into force on 16 December 2022 of the amended Laws of Justice (32), the disciplinary offences generating concerns for the judicial independenceandtheprimacyofEUlawweredejureabolished.InitsDecisionof 9 November 2022, delivered within the framework of the a priori control of constitutionality, the RCC rejected the exceptions of non-constitutionality raised by the Romanian Ombudsman and several deputies, of which some regarded this very change. While the position of the RCC has been criticised by some as a new threat to the supremacy of the national constitution or encouraged by others as a sign that the RCC has become more open to a future dialogue with the Court of Justice, it remains that although non-compliance with the Constitutional Court's decisions is no longer regulated as a distinct disciplinary offense within the text of the law, it can still engage the disciplinary liability of the judge or the prosecutor to the extent that it is proven they exercised their functions in bad faith or gross negligence. e caveat remains therefore in place, as, in practice, the old disciplinary offense may still be taken over in the content of a different still existing one. Additionally, the extension of another disciplinary offence to cover the expression of political opinions not only in the exercise of duties, but also more generally in public, need to be further monitored to ensureitdoesnotrestrictundulythemagistrates’freedomofspeech.
31.Opinion 1079/2022of21March2022.
32. eLawontheStatuteofJudgesandProsecutors, eLawontheorganisation ofthejudiciary,and eLawontheSupremeCounciloftheMagistracy
e Commission warns that while the SIOJ was dismantled, concerns on the new system for the investigation and prosecution of criminal offences in the judiciary remain
For this purpose, the national system will have to use its own monitoring mechanisms, as the Commission will no longer monitor or report on Romania under the CVM. On 22 November 2022 the Commission conclude that the progress made by Romania was sufficient to meet the CVM commitments made at the time of its accession to the EU and that all benchmarks can be satisfactorily closed (33). From now on, the justice system and anticorruption frameworks will be assessed solely under the annual Rule of Law report and by the Romanian Recovery and Resilience Plan, which was so far positively assessed by the Commission and adopted by Council in October2021.
Monday 27 March
Official publication was made of an action for annulment brought by Eva Kaili against the European Parliament and the European Public Prosecutor’s Office: Kaili v Parliament and EPPO(T-46/23).
Monday 27 March
An action brought before the General Court by Matina Stevi and e New York Times Company before the European Commission (T-36/23) was published in the Official Journal
e action seeks the annulment of the Commission’s implied decision of the European Commission’s con rmatory decision regarding the request for access to documents under Regulation1049/2001
Monday 27 March
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Official publication was made of a preliminary ruling request lodged by the Oberlandesgericht Frankfurt am Main (Germany) concerning the interpretation of Articles 10 and 11 of theBrusselsIIaRegulationinrelationtothecustodyofachild with dual German and Polish nationality: Greislzel (C-35/23).
Tuesday 28 March
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e Court of Justice’s hearing in Criminal proceedings against GN (Procuratore generale presso la Corte di appello di Bologna; GN) (C-261/22) concerning the interpretation of EU law rules on the European Arrest Warrant, under Framework Decision 2002/584/JHA: Articles 1(2), (3) and 3 and 4, it is availableontheCourt’swebsite
Monday 27 March
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e European Commission has launched a Call for Evidence seeking feedback on the adoption of Guidelines on exclusionary abuses of dominance. In parallel, it has published a Communicationamendingits2008Guidanceonenforcementprioritiesconcerningexclusionaryabuses.
Tuesday 28 March
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e European Commission has lodged an appeal against the judgment of the General Court in Pollinis France v Commission (joined cases T-371/20 and T-554/20) in which the General Court considered that the Commission infringed the rst subparagraph of Article 4(3) of Regulation No 1049/2001 by refusing to disclose the requested documents onthegroundthattodosowouldseriouslyundermineanongoingdecision-makingprocess.
Tuesday 28 March
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e European Commission has adopted a package of infringement decisions following certain Member States’ failure to notify national measures transposing six EU directives across elds including environment, internal market, industry, entrepreneurship and SMEs, migration, home affairs, security unionandjustice.
Tuesday 28 March
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e EU has adopted two new regulations aimed at reducing the bloc’s net greenhouse gas emissions by at least 55% by 2030comparedto1990levels,aspartofits‘Fitfor55’package.
Wednesday 29 March
A political agreement has been reached on the Anti-Coercion Instrument(ACI),aregulationontheprotectionoftheEuropean Union and its Member States from economic coercion bythirdcountries.
Wednesday 29 March
e Council and the European Parliament have reached a provisional political agreement on the alternative fuel infrastructure regulation (AFIR) e objective of the proposed legislation is to ensure an infrastructure network for recharging or refuelling road vehicles or ships with alternative fuels, to ensure that vessels at berth and stationary aircra do not need to keep their engines running, and to achieve full interoperability throughouttheEU.
Wednesday 29 March
A report published by the European Court of Auditors (ECA) has concluded that trains and barges currently cannot compete on equal grounds with trucks and lorries. According to the report, efforts to move freight off the roads have not been effective in removing the regulatory and infrastructure barriersthatpenaliseothermodesoftransport.
Wednesday 29 March
e EU has adopted two new regulations aimed at reducing the bloc’s net greenhouse gas emissions by at least 55% by 2030comparedto1990levels,aspartofits‘Fitfor55’package
Wednesday 29 March
Wednesday 29 March
e Council has agreed to extend the voluntary 15% gas demandreductiontargetforMemberStatesforoneyear.
e Grand Chamber of the European Court of Human Rights (ECtHR) held two hearings on environmental protection in cases Verein KlimaSeniorinnen Schweiz and others v. Switzerland (no. 53600/20) and Carême v. France (no. 7189/21).
Political agreement on a proposal to extend the Member States’ voluntary 15% gas demand reduction target reached
Wednesday 29 March
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eSwedishpresidencyoftheCouncilandtheEuropeanParliament have reached a provisional agreement on a proposed regulation to strengthen the role of the European Monitoring Centre for Drugs and Drug Addiction and turn it into a fully edgedagency
Wednesday 29 March
In Nouryon Industrial Chemicals and Others v Commission (T-868/19), the General Court dismissed an action for annulment of the Commission Implementing Decision of 16 October 2019. at Decision concerns the compliance check of a registration of dimethyl ether, a nding that the substance cannotberegisteredundertheREACHRegulation,andwhichrequires information to be provided further to various toxicity studies.
Wednesday 29 March
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e European Commission approved unconditionally, under the EU Merger Regulation, the proposed acquisition of Photomath, Inc by Google LLC e Commission concluded that the transaction would raise no competition concerns in theEuropeanEconomicArea.
ursday 30 March
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e Council and Parliament negotiators reached a provisional political agreement to increase the share of renewable energy in the EU’s overall energy consumption to 42 5% by 2030, with a 2.5% indicative top-up, which could allow reaching45%.
Wednesday 29 March
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e General Court delivered its judgment in Wizz Air Hungary v Commission (Blue Air; COVID-19 and aide au sauvetage) (T-142/21), dismissing in its entirely the action lodged by Wizz Air Hungary against the Commission’s decision approving the aid granted by Romania to the airline Blue Air in the contextoftheCovid-19pandemic
ursday 30 March
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eEuropeanCommissionhasproposedanewdirectivethat aims to make it easier for companies to expand the use of digital tools and processes in EU company law e directive seeks to facilitate cross-border companies’ operations and increase business transparency and trust by making more informationaboutcompaniespubliclyavailableattheEUlevel.
ursday 30 March
e Council adopted its negotiating mandate on a proposed EUdirectivetoeasetheaccessofnationalauthoritiesto nancial information. e access by law-enforcement authorities to information about the identity of bank-account holders contained in national centralised registries iscurrently regulatedbyanEUdirectivefrom2019.
ursday 30 March
AG Pitruzzella delivered his Opinion in X (Absence de motifs de résiliation) (C-715/20) on the interpretation of EU law where xed-termcontractsareterminated.
ursday 30 March
e Court of Justice delivered its judgment in Hauptpersonalrat der Lehrerinnen und Lehrer (C-34/21), ruling that the live streaming by videoconference of classes in state school education falls within the scope of the General Data Protection Regulation
Commission proposes regulation to facilitate the movement of mobile machinery on public roads throughout the EU
ursday 30 March
e Commission has proposed a regulation that aims to harmonize technical requirements for the approval of non-road mobile machinery such as cranes, forkli s, harvesters, and snowcleaners.
ursday 30 March
Advocate General Campos Sánchez-Bordona delivered his Opinion in Volkswagen Group Italia and Volkswagen Aktiengesellscha (C-27/22), advising the Court to rule that Volkswagen cannot be penalised in Italy a er having been penalised in Germany if there has not been sufficient coordination betweenthepenaltyproceedingsofbothStates.
ursday 30 March
AdvocateGeneralĆapetadeliveredherOpinioninXellaMagyarország (C-106/22), advising the Court to rule that EU law does not preclude national legislation which allows for the screening of foreign direct investment of third country provenanceevenifimplementedviaanEU-basedcompany.
CouncilAG Pitruzzella on the lack of possibility to judicially review termination of xed-term contracts under
AGĆapeta:nationallegislationmayrestrict foreign direct investment in EUbased companies if such investment is implemented via another EU-based
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e Court of Justice rendered its judgments in cases Staatssecretaris van Justitie en Veiligheid (Délai de transfert – Traite des êtres humains) (C-338/21) and Staatssecretaris van Justitie en Veiligheid (Suspension du délai de transfert en appel) (C-556/21), concerning the effects that requests for reviewing decisions refusing to grant third-country nationals a residencepermitmayhaveontheimplementationoftransferdecisionstothosethird-countrynationalstootherMemberStates.
Judgment
by Celia ChalletREAD MORE ON EU LAW LIVE
e Council has formally adopted a regulation that extends the voluntary 15% gas demand reduction target for member states for one year e target aims to reduce natural gas consumption by 15% between 1 April 2023 and 31 March 2024, compared to the average consumption between 1 April 2017 and31March2022.
and
EU LAW LIVE Nº137 · APRIL 1, 2023
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In this Op-Ed, the author focuses on the business-togovernmentdatasharingaspectoftheproposalandthestruggle between public sector access and industry interests. e author explores the positions of different stakeholders, such astheCzechandSwedishpresidenciesoftheEUCounciland industry organizations, and discusses the implications of the modi cationsmadetotheproposalforthefutureofbusinessto-governmentdatasharingintheEUursday 30 March
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Op-Ed on the case C-375/21, Sdruzhenie’ Za Cemyata – dostap do pravosadle’ and Others, about the coordination of two EU measures against air pollution: the Industrial Emissions DirectiveandtheAmbientAirQualityDirective.
Analysis of the case MS (C-522/21), in which the Court of Justice ruled on the damages for holders of plant variety rights coveredbytheso-called‘agriculturalexemption’.
by Florian JonniauxAnalysis on the case American Airlines v Commission (C-127/21 P) in which the Court of Justice dismissed the appeal brought by American Airlines Inc by which it asked the Court of Justice to set aside the judgment of the General Court in American Airlines v Commission (T-430/18). In the la er, the General Court dismissed its action for annulment of Commission Decision granting Grandfathering rights to DeltaAirLinesforslotsatLondonHeathrowAirport
by Marta SimonciniAnalysis of the joined cases Tazze i v Commission (T-825/19) and Tazze i v Commission (T-826/19), in which the General Court annulled European Commission’s decisionscontainedinaseriesofle ersandemailsconcerningthe Commission Implementing Regulation 2019/661 ensuring the smooth functioning of the electronic registry for quotas forplacinghydro uorocarbonsonthemarket
erightsoftheoperatorsinHFCmarkets: the challenge of legality in the ght against climate change (T-825/19 andT-826/19Tazze ivCommission)
American Airlines v Commission or the subtle art of merger commitment dra ing: you can’t have your cake and eatit
is in the details: Court of Justice prioritises Air Quality Directive’s highest standards over the Industrial Emissions Directive derogations (Case C-375/21 Sdruzhenie’ Za Cemyata–dostapdopravosadle’andOthers)
e Court of Justice invalidates punitive 4× lump sum compensation in plant variety right infringement (C-522/21, MS)
Op-Ed on the cases Hengshi Egypt Fiberglass Fabrics and Jushi EgyptforFiberglassIndustryvCommission(T-480/20)andJushi Egypt for Fiberglass Industry v Commission (T-540/20), by which the General Court dismissed two actions seeking the annulment of Regulations imposing anti-dumping duties and countervailing duties on imports of glass bre fabrics originatinginChinaandEgypt.
by Catherine WarinIn this Op-Ed the author analyses the judgment in Dual Prod (C-412/21), in which the Court of Justice ruled on a preliminary ruling request by the Satu Mare District Court (Tribunalul Satu Mare) on whether the presumption of innocence and the ne bis in idem principles under Articles 48(1) and 50 of the Charter, read in conjunction with Article 16(1) of Excise Duty Directive 2008/118, preclude the administrative suspensionofanauthorisationasataxwarehouse-keeper.
e right to good administration remains in the shadow (C-412/21, Dual Prod)
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