Opinion of the Advocate General — ECLI:EU:C:2020:747
Date: 2020-09-23
Language of the case: Romanian

Request for a preliminary ruling from the Tribunalul București (Romania) lodged on 22 May 2019 — AX v Statul Român — Ministerul Finanțelor Publice (Case C-397/19) Language of the case: Romanian Referring court Tribunalul București Parties to the main proceedings Applicant: AX Defendant: Statul Român — Ministerul Finanțelor Publice Questions referred Is the Cooperation and Verification Mechanism (CVM), established by Commission Decision 2006/928/EC of 13 December 2006, 1 to be regarded as an act of an institution of the European Union, within the meaning of Article 267 TFEU, and therefore amenable to interpretation by the Court of Justice of the European Union? Does the Cooperation and Verification Mechanism (CVM), established by Commission Decision 2006/928/EC of 13 December 2006, constitute an integral part of the Treaty concerning the accession of the Republic of Bulgaria and Romania to the European Union, signed by Romania in Luxembourg on 25 April 2005, and must it be interpreted and applied in the light of the provisions of that treaty? Are the requirements set out in the reports drawn up in the context of that mechanism binding on Romania and, if so, is a national court which is responsible for applying, within its sphere of jurisdiction, provisions of EU law required to ensure the application of those rules, where necessary refusing, of its own motion, to apply provisions of national legislation that are contrary to the requirements set out in the reports drawn up pursuant to that mechanism? Is Article 2 of the Treaty on European Union, read in conjunction with Article 4(3) thereof, to be interpreted as meaning that the obligation on Romania to comply with the requirements laid down in the reports drawn up pursuant to the Cooperation and Verification Mechanism (CVM), established by Commission Decision 2006/928/EC of 13 December 2006, forms part of the Member State’s obligation to observe the principles of the rule of law? Does Article 2 of the Treaty on European Union, read in conjunction with Article 4(3) thereof, and in particular the obligation to observe the values of the rule of law, preclude a provision of national legislation, such as Article 96(3)(a) of Law No 303/2004 on the rules governing judges and prosecutors, which defines, succinctly and in the abstract, a ‘judicial error’ as the performance of a procedural act in clear breach of provisions of substantive or procedural law, without specifying the nature of the provisions infringed, the scope of application of those provisions, ratione materiae and ratione temporis, in the proceedings, the methods, time limits and procedures for establishing infringement of legal provisions, or the authority competent to establish infringement of those legal provisions, and thus creates a risk of pressure being indirectly exerted on the judiciary? Does Article 2 of the Treaty on European Union, read in conjunction with Article 4(3) thereof, and in particular the obligation to observe the values of the rule of law, preclude a provision of national legislation, such as Article 96(3)(b) of Law No 303/2004 on the rules governing judges and prosecutors, which defines a ‘judicial error’ as the delivery of a final judgment that is manifestly contrary to the law or inconsistent with the factual situation established by the evidence taken in the course of the proceedings, without defining the procedure for establishing inconsistency and without defining in specific terms what is meant by that inconsistency of the judgment vis-à-vis the applicable legal provisions or the factual situation, and thus creates a risk that the interpretation of the law and the evidence by the judiciary (judges and prosecutors) will be hindered? Does Article 2 of the Treaty on European Union, read in conjunction with Article 4(3) thereof, and in particular the obligation to observe the values of the rule of law, preclude a provision of national legislation, such as Article 96(3) of Law No 303/2004 on the rules governing judges and prosecutors, pursuant to which the civil liability of a member of the judiciary (a judge or prosecutor) vis-à-vis the State is established solely on the basis of the State’s own assessment, and, where appropriate, the advisory report of the [Judicial] Inspectorate, regarding the question of the intention or gross negligence of the judge or prosecutor in the commission of the material error, without that judge or prosecutor having the opportunity fully to exercise his rights of defence, and which thus creates the risk of the procedure for establishing the liability of the judge or prosecutor vis-à-vis the State being commenced and completed arbitrarily? Does Article 2 of the Treaty on European Union, and in particular the obligation to observe the values of the rule of law, preclude a provision of national legislation, such as the last sentence of Article 539(2) of the Code of Criminal Procedure, read together with Article 541(2) and (3) thereof, whereby a defendant who has been acquitted on the merits, implicitly and sine die, is provided with an extraordinary sui generis means of appeal against a final judgment on the lawfulness of pre-trial detention, an appeal which is to be heard solely by a civil court, in the event that the unlawfulness of the pre-trial detention has not been established by a decision of a criminal court, in breach of the principle that legal provisions must be predictable and accessible, the principle of the specialisation of judges and the principle of legal certainty? ____________ 1 Commission Decision 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).