Opinion of the Advocate General — ECLI:EU:C:2020:746
Date: 2020-09-23
Language of the case: Romanian
Subject matter: Accession;Justice and home affairs
Procedure: Reference for a preliminary ruling;Reference for a preliminary ruling - inadmissible
Origin: Romania

Translation C-83/19−1 
Case C-83/19 
Request for a preliminary ruling 
Date lodged: 
5 February 2019 
Referring court: 
Tribunalul Olt (Romania) 
Date of the decision to refer: 
5 February 2019 
Applicant: 
Asociația ‘Forumul Judecătorilor din România’ 
Defendant: 
Inspecția Judiciară 
  
[...] 
TRIBUNALUL OLT (Regional Court, Olt, Romania) 
Secția a II-a civilă et de contencios administrativ et fiscal (Second Chamber 
hearing civil, administrative and tax matters) 
[...] 
REQUEST FOR A PRELIMINARY RULING (UNDER AN EXPEDITED 
PROCEDURE) 
At the request of the applicant, Asociația ‘Forumul Judecătorilor din România’ 
(Romanian Judges’ Forum), the Tribunalul Olt, having regard to the operative part 
of the order of 29 January 2019, pursuant to Article 267 of the Treaty on the 
Functioning of the European Union (TFEU) (in conjunction with Article 105 
of the Rules of Procedure of the Court of Justice), hereby requests 
THE COURT OF JUSTICE OF THE EUROPEAN UNION 
to reply to the following questions referred for a preliminary ruling, on the 
interpretation of acts of an institution of the European Union, that is to say, 
EN 
REQUEST FOR A PRELIMINARY RULING OF 5. 2. 2019 — CASE C-83/19 — 1 
 
2  
Commission Decision 2006/928/EC 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 the provisions 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 (‘the Treaty of Accession’), and 
Article 2 and the second subparagraph of Article 19(1) of the Treaty on 
European Union (TEU), since a decision in that respect will be of use in 
resolving the domestic case listed before the Tribunalul Olt [...]: 
1. Must the Cooperation and Verification Mechanism (CVM), 
established by Commission Decision 2006/928/EC of 13 December 
2006, be considered to be 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? 
2. Do the terms, nature and duration of the Cooperation and 
Verification Mechanism (CVM), established by Commission 
Decision 2006/928/EC of 13 December 2006, come within the scope 
of application 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? Are the 
requirements laid down in the reports prepared in the context of 
that mechanism binding on Romania? 
3. Must the second subparagraph of Article 19(1) of the Treaty on 
European Union be interpreted as meaning that it obliges the 
Member States to take the measures necessary to ensure effective 
legal protection in the fields covered by EU law, that is to say, 
guarantees of an independent disciplinary procedure for 
Romanian judges, by eliminating all risks of political influence 
over the conduct of those procedures, such as direct Government 
appointment of the management of the Inspecția Judiciară 
(Judicial Inspection, Romania), even on a provisional basis? 
[Or. 2] 
4. Must Article 2 of the Treaty on European Union be interpreted as 
meaning that the Member States are obliged to comply with the 
rule of law criteria, also required in the reports prepared in the 
context of the cooperation and verification mechanism (CVM), 
established by Commission Decision 2006/928/EC of 13 December 
2006, in the case of procedures whereby the Government directly 
appoints the management of the Inspecția Judiciară (Judicial 
Inspection, Romania), even on a provisional basis? 
ASOCIAŢIA ‘FORUMUL JUDECĂTORILOR DIN ROMÂNIA’ 
 
3 
Subject matter of the dispute. Relevant facts 
1 On 24 September 2018, the applicant, Asociația ‘Forumul Judecătorilor din 
România’ (Romanian Judges’ Forum), brought an action [...] before the Regional 
Court, Olt against the defendant, the Judicial Inspection, applying for an order 
requiring the defendant to disclose the information requested in paragraphs II and 
III of the request registered with the defendant on 27 August 2018 [...]. 
2 In the application, the applicant states that the defendant responded only partially, 
on 31 August 2018, by letter, to the request for disclosure of information of public 
interest [...] comprising a series of disparate statements compiled to give the 
impression that it was complying with the statutory obligation, manifestly at odds 
with the precise terms of the applicant’s request, since the applicant had requested 
the defendant to provide it with several pieces of information relating to the years 
2014 to 2018, taken from data held by the Judicial Inspection, arising directly 
from that institution’s activity. 
2.1. Specifically, some of the questions put to the defendant related to statistical 
questions about the cases listed with the Judicial Inspection, that is to say: ‘1. How 
many cases against members of the judiciary — judges and prosecutors 
respectively — were listed with the Judicial Inspection in the same period, 2014 to 
2018 (relating to disciplinary misconduct and/or breaches of the code of 
ethics)[?]; 2. In how many cases did the Judicial Inspection at its own initiative 
commence procedures against members of the judiciary, judges and prosecutors 
respectively, in the same period, for disciplinary or ethical liability[?]; 3. How 
many complaints against members of the judiciary, judges and prosecutors 
respectively, originated from the Ministry of Justice in the same period[?]; 4. In 
how many cases commenced as the result of a complaint were disciplinary 
proceedings brought against members of the judiciary, judges and prosecutors 
respectively[?]; 5. In how many cases commenced at its own initiative by the 
Judicial Inspection were disciplinary proceedings brought against members of the 
judiciary, judges and prosecutors respectively[?]; 6. In how many cases in which 
disciplinary proceedings were brought against members of the judiciary, judges 
and prosecutors respectively, were penalties imposed that became final[?]; 7. In 
how many cases were proceedings for breaches of the code of ethics brought 
against members of the judiciary, judges and prosecutors respectively, and in how 
many of those cases were final decisions made upholding the action[?]’. 
2.2. Another section of the questions originated in publicly available information 
disclosed by the Judicial Inspection itself, relating to the conclusion of an 
agreement between the Judicial Inspection and the Serviciul Român de Informații 
(Romanian Intelligence Service), in force during the aforementioned 2014 to 2018 
period. Specifically, the applicant asked to be given the following documents and 
information: ‘1. A copy of the agreement in question, to the extent that it was 
declassified and, if it was not, the date on which the declassification procedure 
commenced, if applicable, and the stage it had reached; 2. A copy of the 
instrument by which the agreement was terminated, as had been asserted publicly; 
REQUEST FOR A PRELIMINARY RULING OF 5. 2. 2019 — CASE C-83/19 — 1 
 
4  
3. How many complaints against members of the judiciary, [Or. 3] judges and 
prosecutors respectively, did the Romanian Intelligence Service refer to the 
Judicial Inspection under the cooperation agreement between the two 
institutions[?]; 4. Of the cases listed with the Judicial Inspection, in how many 
was any correspondence of any kind whatsoever conducted with the Romanian 
Intelligence Service or with other intelligence services, under the agreement or 
otherwise[?]’. 
2.3. The applicant included in the case file the defendant’s reply, in which the 
defendant informed it that ‘in the period from 1 August to 1 October 2018 there 
was a thematic audit of compliance with the general principles governing the 
activity of the judiciary in the cases falling within the competence of the Direcția 
Națională Anticorupție [(National Anti-corruption Department, Romania, ‘the 
DNA’)], aimed at members of the judiciary or concerning them, and the only 
information publicly available at the present time is that given in the 24 August 
2018 press release. Once the audit report has been approved by the Consiliul 
Superior al Magistraturii [(Superior Council of Magistracy, Romania)], it will be 
published on the www.inspectiajudiciara.ro website’. In relation to the agreement 
referred to, the applicant was told that, until the declassification procedure had 
been completed, it was classified information, and the information requested 
therefore could not be provided. 
2.4. The applicant states that it no longer wishes to persist with its request in relation 
to point I of the request for disclosure of publicly available information, although 
the refusal was groundless, since it has requested the same publicly available 
information from its primary holder, that is to say, the National Anti-corruption 
Department. However, in relation to the other information it indicates that it has 
received no response. Point II of the request refers to information resulting from 
the defendant’s activity, judicial inspection, which is of the same type as that 
gathered by the defendant in the thematic audit of ‘compliance with the general 
principles governing the activity of the judiciary in the cases falling within the 
competence of the National Anti-corruption Department aimed at members of the 
judiciary or concerning them’, except that the information requested by the 
[applicant] concerns the disciplinary or ethical liability of members of the 
judiciary, as opposed to criminal liability under specific legislation (in the cases 
falling within the competence of the DNA). Nor has the applicant received a reply 
in respect of point III of the request, even though it states that it requested general 
statistical information arising from the defendant’s activity, rather than specific 
information that would breach the confidentiality of the agreement. 
3 In its defence lodged on 26 October 2018, the defendant, the Judicial Inspection, 
contends that the applicant’s rights as an individual conferred by Law 
No 544/2001 have not been infringed and that the application that the Judicial 
Inspection be ordered to give a reply containing the information requested is 
unfounded. It accordingly claims that the application should be dismissed as 
unfounded.  
ASOCIAŢIA ‘FORUMUL JUDECĂTORILOR DIN ROMÂNIA’ 
 
5 
[...] [Or. 4] [...] [aspects relating to the substance of the case, whereas the 
reference for a preliminary ruling concerns the objection alleging that the 
signatory of the defence does not have powers of representation — see 
paragraph 4.7.] 
4 By its reply, the applicant submits an objection alleging that it has not been 
proven that the signatory of the defence, Judge Lucian Netejoru, has powers of 
representation, on two counts: firstly, there is no administrative act issued by the 
authority competent to appoint the chief inspector of the Judicial Inspection, that 
is to say, the general assembly of the Superior Council of Magistracy, recording 
that the statutory requirements to act in that office ad interim have been complied 
with; secondly, the provisions of Ordonanța de Urgență a Guvernului nr. 77/2018 
pentru completarea articolului 67 din Legea nr. 317/2004 privind Consiliul 
Superior al Magistraturii (Government Emergency Ordinance No 77/2018 
supplementing Article 67 of Law No 317/2004 on the Superior Council of 
Magistracy) [‘Emergency Ordinance No 317/2018’] are unconstitutional. [...]  
4.1. In the grounds of the objection, the applicant relies on Article 82(1) of the 
Romanian Civil Procedure Code according to which, where a court finds that it 
has not been proven that the person who has acted on behalf of a party has powers 
of representation, the court will grant a short period in which to remedy the 
situation and, if it is not remedied, the application will be struck out. The applicant 
also relies on Article 151(3) of the Civil Procedure Code, according to which ‘the 
legal representative will annex a certified copy of the document proving his or her 
authorisation to act’, [Or. 5] and applies that the defendant be summoned to 
appear at the first hearing and expressly be required to include proof of the legal 
representative’s powers of representation in the case file, failing which the 
defence would be struck out, and that the decision of the general meeting of the 
Superior Council of Magistracy made under Article 35 of Legea nr. 317/2004 
privind Consiliul Superior al Magistraturii (Law No 317/2004 on the Superior 
Council of Magistracy), recording that Judge Lucian Netejoru satisfies the 
statutory requirements to act ad interim as chief inspector of the Judicial 
Inspection, be included in the case file. 
4.2. One series of arguments relates to Article 133(1) of the Romanian Constitution, 
according to which ‘the Superior Council of Magistracy is the guarantor of 
judicial independence,’ thereby implying that it has a discretion not only to 
appoint the chief inspector and the deputy chief inspector of the Judicial 
Inspection, on the terms set out in Article 67 of Law No 317/2004, but also to 
delegate (a person) to one of those management positions that has become vacant 
when a mandate expires, on the terms set out in Article 57 of din Legea nr. 
303/2004 privind statutul judecătorilor și procurorilor (Law No 303/2004 on the 
rules governing judges and prosecutors), and to determine whether the statutory 
requirements for acting ad interim in the office (which is essentially also a form of 
delegation) have been complied with. 
REQUEST FOR A PRELIMINARY RULING OF 5. 2. 2019 — CASE C-83/19 — 1 
 
6  
4.3. According to the applicant, the foregoing ensures compliance with the legal 
principle specialia generalibus derogant, according to which the ordinary law 
applies where there is no special provision to the contrary on a given matter, and 
with the principle of ‘legal symmetry’, according to which competence to take 
provisional measures (delegating a judicial inspector to act ad interim or making a 
finding of fact that the post has become vacant automatically) lies with the same 
public authority that is responsible for the permanent appointment to a 
management post of that kind, that is to say, the general meeting of the Superior 
Council of Magistracy. 
4.4. The applicant contends in this respect that a legislative intervention such as that 
which occurred in the form of Emergency Ordinance No 77/2018 cannot remove 
the powers of the Superior Council of Magistracy, arising from its constitutional 
role as guarantor of judicial independence, to implement the legislation by 
adopting an administrative act finding that a particular person is in the situation to 
which the legislation refers and can act ad interim, precisely because it goes to the 
heart of how civil procedural law and administrative law operate that the holders 
of posts can prove their authority to act by acts appointing them to office or 
modifying the employment relationship. The applicant states on this point that the 
fact that the legislation might limit the criteria for appointing interim executives 
cannot justify the absence of a decision based on their careers, finding that the 
statutory requirements are satisfied and, where applicable, that there are no 
obstacles to implementing the legislation (for example, the fact that the person in 
question ceases to be a judicial inspector on expiry of the mandate for the 
management office, or does not agree to the ‘delegation by operation of law’, 
among others). 
4.5. Another series of arguments by which the applicant asserts that the power to 
represent the Judicial Inspection has not been proven in accordance with the 
legislation is based on the contention that the provisions of Emergency Ordinance 
No 77/2018 (Articles I and II) are unconstitutional when read in the light of 
Article 1(3) and (5) and Articles 4(2), 15(2), 16(1), 133(1) and 134(4) of the 
Romanian Constitution. For the purposes of that thesis, the applicant has 
appended to its reply the objection of unconstitutionality relating to the provisions 
indicated above, claiming that, to the extent that those statutory provisions are 
found to be unconstitutional, it will be proven that the defendant has no right to 
act as a legal representative, irrespective of whether or not there is a decision of 
the general meeting of the Superior Council of Magistracy as has been sought as 
proof of powers of legal representation, and that the defence produced in the case 
file will therefore [Or. 6] be struck out, comprising as it does the pleading that 
adduced evidence, made an objection and submitted pleas in defence, none of 
which will be taken into account in determining the case. 
4.6.  [...] [aspects relating to the objection that there is no cause of action]  
4.7. Subsequently, the applicant lodged a request to refer to the Court of Justice of the 
European Union, followed by an explanatory document, in which it stated that the 
ASOCIAŢIA ‘FORUMUL JUDECĂTORILOR DIN ROMÂNIA’ 
 
7 
request to refer to the Court of Justice of the European Union related to the 
objection that it has not been proven that the signatory of the defence, Judge 
Lucian Netejoru, has powers of representation, on the grounds that there is no 
administrative act issued by the authority competent to appoint the chief inspector 
of the Judicial Inspection, that is to say, the general meeting of the Superior 
Council of Magistracy, recording that the statutory requirements for acting ad 
interim as chief inspector have been complied with. In the light of the relevant 
provisions, by extending the mandates of the current executives of the Judicial 
Inspection the Government has encroached on the powers of the Superior Council 
of Magistracy, having regard to the powers and responsibilities of chief judicial 
inspectors and to judicial independence, which is an essential requirement for 
ensuring effective judicial protection. The guarantee of independence, inherent in 
the task of adjudication, is required not only at EU level as regards the Judges of 
the European Union and the Advocates General of the Court of Justice, as the 
third subparagraph of Article 19(2) TEU provides, but also at Member-State level 
as regards national courts. 
4.8. In the same explanatory document, the applicant states that the European 
Commission’s report in the context of the CVM was made public on 
13 November 2018, after the reply had been lodged, and is a new circumstance 
arising during the proceedings, before the first hearing. According to the 
applicant, it has not been proven in accordance with the legislation that the 
Judicial Inspection had powers of representation. It contends that, in so far as it 
will be established that Romania has failed to comply with its obligations in 
the context of the European Union [the CVM and the second subparagraph 
of Article 19(1) and Article 2 TEU] and accordingly, first of all, that those 
obligations are binding, it will be proven that the defendant has no right to 
act as legal representative, irrespective of whether or not there is a decision of 
the general meeting of the Superior Council of Magistracy as has been sought 
as proof of powers of legal representation, thereby causing the defence 
produced in the case file to be struck out, comprising as it does the pleading 
that adduced evidence, made an objection and submitted pleas in defence, 
none of which will be taken into account in determining the case [Or. 7]. 
4.9. The defendant advances pleas in defence to the objection alleging that its powers 
of representation are not proven, relating both to the unconstitutionality of the 
statutory provisions disputed by the applicant and the statutory basis of its powers 
of representation. It states that the Superior Council of Magistracy Decision 
No 702/2015 appointing Lucian Netejoru as chief inspector of the Judicial 
Inspection appears on the Judicial Inspection’s official website, furthermore 
mentions the provisions of Emergency Ordinance No 77/2018, and applies for the 
applicant’s objection to be rejected as unfounded. 
5 In the present case, this court takes note, from the outset, both of the particular 
procedural context, given the subject matter of the application and the parties — 
the applicant represents a section of the members of the Romanian judiciary and 
the defendant is a key institution in the Romanian judicial system —, and of the 
REQUEST FOR A PRELIMINARY RULING OF 5. 2. 2019 — CASE C-83/19 — 1 
 
8  
particular nature of the objection advanced by the applicant, Asociația ‘Forumul 
Judecătorilor din România’, an objection alleging that it is not proven that Judge 
Lucian Netejoru has powers of representation in his capacity as chief inspector 
of the defendant entity. By submitting that objection, the applicant has asked this 
court to consider two different viewpoints that challenge the very basis of the 
powers of representation (to be found in the provisions of Emergency Ordinance 
No 77/2018), referring to the stage of the proceedings at which the defendant 
lodged its defence: it has adduced constitutional provisions, on the one hand, and 
provisions of EU law, on the other. 
5.1. According to Article 248 of the Civil Procedure Code, the court must examine 
and rule ‘first of all on the procedural objections and on substantive objections as 
a result of which the hearing of evidence or examination of the substance of the 
case, as applicable, become fully or partially redundant’. Article 82 of the Civil 
Procedure Code, to which the applicant refers, contains the following provisions: 
‘where the court finds that it has not been proven that the person who has 
acted on behalf of a party has powers of representation, the court will grant a 
short period to remedy the situation. If the situation is not remedied, the 
application will be struck out.’ Those articles should be read in conjunction with 
Article 205 of the Civil Procedure Code, according to which the defence is the 
pleading by means of which the defendant puts its defence, in fact and law, 
containing its response to all the heads of claim and grounds indicated in the 
application, and the evidence adduced in defence, and with Article 208(2) of that 
code: ‘Where no defence has been lodged within the time limit laid down by 
the legislation, the defendant will forfeit its right to submit evidence and 
objections, with the exception of public order pleas, subject to any contrary 
provision of the legislation’. 
5.2. To enable it to rule on the objection submitted, which is a procedural objection, 
under Article 245 of the Civil Procedure Code, this court found that Article 255(2) 
of the Civil Procedure Code (‘where a given fact is public knowledge or is 
undisputed, the court, having regard to the circumstances of the case, can rule that 
it is not necessary to prove that fact’) applies, in conjunction with Article 251 of 
the Civil Procedure Code (‘no one has to prove what the court is bound to 
recognise ex officio’), in view of the fact that decisions of the general meeting of 
the Superior Council of Magistracy are public and known to members of the 
Romanian judiciary, that is to say, to the parties and to the court, and that the court 
is bound to recognise the provisions of the legislation (under Article 252(1) of the 
Civil Procedure Code). The defendant itself also stated that its powers of 
representation are based on Decision No 702 of 30 June 2015 of the general 
meeting of the Superior Council of Magistracy, which is on its own website at 
http://www.inspectiaiudiciara.ro/Organization.aspx (viewed on 29 January 2019) 
supplemented by the provisions of Emergency Ordinance No 77/2018. [Or. 8] 
5.3. This court has found that, on the date on which the defence was lodged, the 
defendant was represented ad interim, in accordance with Emergency Ordinance 
No 77/2018, since Decision No 702 of 30 June 2015 of the general meeting of the 
ASOCIAŢIA ‘FORUMUL JUDECĂTORILOR DIN ROMÂNIA’ 
 
9 
Superior Council of Magistracy shows that Judge Lucian Netejoru was appointed 
for three years from 1 September 2015, and no other decision appointing a chief 
inspector of the Judicial Inspection has been identified on the website of the 
Superior Council of Magistracy. This is in line with the findings of the European 
Commission’s Technical Report annexed to the Report from the Commission to 
the European Parliament and the Council on Progress in Romania under the 
Cooperation and Verification Mechanism (Strasbourg, 13 November 2018): 
‘There was no competition organised by the Superior Council to appoint a new 
management of the Judicial Inspection, although the mandate of the management 
team expired end of August 2018. The decision of the Government to resolve the 
situation by adopting an Emergency Ordinance to nominate the current team ad 
interim ... did nothing to assuage concerns.’ (page 22) 
5.4. Furthermore, that state of affairs is analysed in the conclusion of the Report from 
the Commission to the European Parliament and the Council on Progress in 
Romania under the Cooperation and Verification Mechanism, of 13 November 
2018, [SWD(2018) 551 final] which stated that ‘the assessment of the January 
2017 report was always conditioned on the avoidance of negative steps calling 
into question the progress made in the past 10 years. The entry into force of the 
amended justice laws, the pressure on judicial independence in general ... have 
reversed or called into question the irreversibility of progress’ (page 19). This 
court also finds that one of the measures intended to remedy the situation set out 
in the report is as follows: ‘The Superior Council of Magistracy is to appoint 
immediately an interim team for the management of the Judicial Inspection and 
within three months to appoint through a competition a new management team in 
the Inspection.’  
National provisions applicable in the present case. Relevant national case-law 
6 The law applicable in the present case is primarily Government Emergency 
Ordinance No 77/2018 supplementing Article 67 of Law No 317/2004 on the 
Superior Council of Magistracy, published in Monitorul Oficial no 767 of 
5 September 2018: 
‘Having regard to the fact that, under Article 65(2) of Law No 317/2004 on the 
Superior Council of Magistracy, republished, as subsequently amended, the 
Judicial Inspection is headed by a chief inspector, who manages and organises the 
judicial inspection activity, assisted by a deputy chief inspector, both appointed by 
a competitive examination organised by the Superior Council of Magistracy; 
whereas, in accordance with Article 67 of Law No 317/2004, republished, as 
subsequently amended, the mandate of the chief inspector and deputy chief 
inspector is a period of three years, renewable once on the terms laid down in the 
legislation; 
whereas the provisions of Law No 317/2004, republished, as subsequently 
amended, do not govern a situation in which the mandate of the chief inspector or 
REQUEST FOR A PRELIMINARY RULING OF 5. 2. 2019 — CASE C-83/19 — 1 
 
10  
deputy chief inspector of the Judicial Inspection expires before the competitive 
examinations for those positions is completed, or the option for the office of chief 
inspector and deputy chief inspector to be held ad interim, where those positions 
become vacant for other reasons; 
having regard to the importance of the Judicial Inspection as an institution in 
preserving a judiciary with the highest integrity enjoying every guarantee of 
independence and impartiality, since the activities of that institution are intended 
to improve the quality of the administration of justice and the efficiency and 
effectiveness of the judicial system, by means of verifications and assessments 
carried out in accordance with the legislation; [Or. 9] 
having regard to the fact that a vacancy in the position of chief inspector of the 
Judicial Inspection has adverse repercussions on performance of the activity of 
that institution and on disciplinary procedures against members of the judiciary, in 
circumstances where the chief inspector has specific powers in the disciplinary 
procedure, that is to say, the chief inspector confirms the decisions of the judicial 
inspector; 
in view of the fact that the mandate of the management of the Judicial Inspection 
expired on 1 September 2018 and that there is no other statutory provision 
expressly governing how substitutes are appointed to fill those offices;  
given the need for the substitutes in those offices to be persons with proven 
professional competence in the field of management, who already perform the 
duties in question, have in-depth knowledge of the activity of the Judicial 
Inspection and have undergone a competitive examination both when they were 
first appointed and on being given a new mandate, on the terms laid down in the 
legislation; 
since the situation described above is an extraordinary situation that requires 
immediate regulation and since urgent legislative intervention is necessary to fill 
the legislative vacuum in that area;  
under Article 115(4) of the Romanian Constitution, republished, 
the Romanian Government adopts the following emergency ordinance. 
Article I - In Article 67 of Law No 317/2004 on the Superior Council of 
Magistracy, republished in Monitorul Oficial al României, part I, no 628 of 
1 September 2012, as subsequently amended, two new paragraphs, 7 and 8, 
worded as follows, are inserted after Article 67(6): 
“7. Where the position of chief inspector or deputy chief inspector, as 
applicable, of the Judicial Inspection becomes vacant as a result of expiry of 
the mandate, the chief inspector or deputy chief inspector, as applicable, 
whose mandate has expired will act as substitute until the date on which that 
position is filled on the terms laid down by the legislation. 
ASOCIAŢIA ‘FORUMUL JUDECĂTORILOR DIN ROMÂNIA’ 
 
11 
8. Where the mandate of the chief inspector ends for a reason other than 
expiry of the mandate, the deputy chief inspector will act as substitute until 
the date on which that position is filled on the terms laid down by the 
legislation. Where the mandate of the deputy chief inspector ends for a 
reason other than expiry of the mandate, a judicial inspector appointed by 
the chief inspector will act as substitute until the date on which that position 
is filled on the terms laid down by the legislation.” 
Article II - The provisions of Article 67(7) of Law No 317/2004 on the 
Superior Council of Magistracy, republished, as subsequently amended and 
supplemented by this emergency ordinance, will also apply to situations in 
which the position of chief inspector or of deputy chief inspector, as 
applicable, of the Judicial Inspection is vacant on the date on which this 
emergency ordinance comes into force.’  
Article 67 of Law No 317/2004 on the Superior Council of Magistracy, 
republished in Monitorul Oficial al României, part I, no 628 of 1 September 
2012, before amendment [was worded as follows]  
‘1. The chief inspector and deputy chief inspector shall be appointed by 
the general meeting of the Superior Council of Magistracy from among 
office holding judicial inspectors, following a competitive examination 
consisting of submission of a project relating to exercise of the powers 
specific to the management position in question, a written test of knowledge 
in the field of management, communication, human resources and the 
candidate’s ability to make decisions and take responsibility and resilience 
to stress, and a psychological test. 
2. The competitive examination will be organised by the Superior 
Council of Magistracy, in accordance with the rules approved by decision of 
the general meeting of the Superior Council of Magistracy, published in the 
Monitorul Oficial al României, part I. 
3. The competitive examinations for the positions of chief inspector and 
deputy chief inspector will be announced at least three months before they 
are held. 
4. The mandate of the chief inspector and of the deputy chief inspector 
will be a period of three years and may be renewed once, in accordance with 
the provisions of Article 67(1). [Or. 10] 
5. The chief inspector and the deputy chief inspector may be removed 
from office by the general meeting of the Superior Council of Magistracy, 
where they fail to perform their management duties or perform them 
inappropriately. The removal from office will be decided upon on the basis 
of the annual audit report referred to in Article 68. 
REQUEST FOR A PRELIMINARY RULING OF 5. 2. 2019 — CASE C-83/19 — 1 
 
12  
6. A removal decision taken by the general assembly of the Superior 
Council of Magistracy may be appealed, within 15 days from service of the 
decision, to the administrative and tax chamber of the Înalta Curte de 
Casație și Justiție (High Court of Cassation and Justice, Romania). The 
appeal will suspend enforcement of the decision of the Superior Council of 
Magistracy. A decision taken on appeal shall be irrevocable.’ 
7 Certain provisions of Legea nr. 134/2010 privind Codul de procedură civilă (Law 
No 134/2010 establishing the Civil Procedure Code), republished in Monitorul 
Oficial no 247 of 10 April 2015, also apply in the present case, that is to say: 
Article 82 Absence of proof of capacity to act as representative ‘1. ‘Where the 
court finds that it has not been proven that the person who has acted on behalf of a 
party has powers of representation, the court will grant a short period to remedy 
the situation. If the situation is not remedied, the application will be struck out.’ 
Article 124 Pleas in defence and procedural applications ‘1. The court with 
jurisdiction to hear the main application will also rule on the pleas in defence and 
objections, with the exception of those constituting preliminary questions that are, 
under the legislation, within the exclusive jurisdiction of a different court’. 
Article 205 Purpose and content of the defence ‘1. The defence is the pleading 
by means of which the defendant puts its defence, in fact and law, to the 
application. 
2. The defence shall contain: 
... 
(b) the procedural objections that the defendant makes to the application; 
(c) a response to all the heads of claim and grounds in fact and law advanced in 
the application; 
(d) the evidence adduced in defence refuting each head of claim, in respect of 
which Article 194(e) applies by analogy; ...’. 
Article 208 Penalty for failure to lodge the defence ‘1. The defence is 
mandatory unless the legislation expressly provides otherwise. 2. Where no 
defence has been lodged within the time limit laid down by the legislation, the 
defendant will forfeit its right to submit evidence and objections, with the 
exception of public order pleas, subject to any contrary provision of the 
legislation’. 
Article 237 Purpose and content of the investigation ‘1. Procedural acts, 
whether on application by the parties or ex officio, are conducted during the 
investigation phase, on the terms laid down by the legislation, in order to prepare 
the case, where applicable, for discussion on the merits. (2) In order to achieve the 
ASOCIAŢIA ‘FORUMUL JUDECĂTORILOR DIN ROMÂNIA’ 
 
13 
aim referred to in Article 237(1), the court will: 1. rule on the objections submitted 
and any that it may raise ex officio…’. 
Article 245 Definition ‘A procedural objection is a plea by which, on the terms 
laid down by the legislation, the interested party, the prosecutor or the court, 
without addressing the substance of the case, alleges procedural irregularities 
relating to the composition of the court or the chamber hearing the case, the 
court’s jurisdiction, procedure or defects relating to the right to appeal seeking, as 
the case may be, a declaration that the court lacks jurisdiction, deferral of the 
hearing, rectification of certain acts or that the application be struck out, rejected 
or found to be time-barred’. 
Article 248 Procedure ‘1. The court will rule first of all on the procedural 
objections and on substantive pleas as the result of which the hearing of evidence 
or examination of the substance of the case, as applicable, become fully or 
partially redundant.’ 
Article 251 No obligation to prove ‘No one has to prove what the court is bound 
to recognise ex officio’. [Or. 11] 
Article 255 Admissibility of evidence ‘2. Where a given fact is public knowledge 
or is undisputed, the court may, having regard to the circumstances of the case, 
rule that it is not necessary to prove that fact’. 
Provisions of EU law relevant in the present case 
8 This court believes that the provisions contained in the following instruments are 
applicable in the present case:  
8.1. 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 
[notified under document number C(2006) 6569] (OJ 2006 L 354, p. 56) 
‘Article 1 
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. 
Article 2 
REQUEST FOR A PRELIMINARY RULING OF 5. 2. 2019 — CASE C-83/19 — 1 
 
14  
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. 
Article 3 
This Decision shall enter into force only subject to and on the date of the 
entry into force of the Treaty of Accession. 
Article 4 
This Decision is addressed to all Member States. 
Done at Brussels, 13 December 2006. ... 
ANNEX 
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.’ 
8.2. Treaty concerning the Accession of the Republic of Bulgaria and Romania to the 
European Union 
‘Article 1 
1. The Republic of Bulgaria and Romania hereby become members of the 
European Union. 
2. The Republic of Bulgaria and Romania become Parties to the Treaty 
establishing a Constitution for Europe and to the Treaty establishing the European 
Atomic Energy Community as amended or [Or. 12] supplemented. 
ASOCIAŢIA ‘FORUMUL JUDECĂTORILOR DIN ROMÂNIA’ 
 
15 
3. The conditions and arrangements for admission are set out in the Protocol 
annexed to this Treaty. The provisions of that Protocol shall form an integral part 
of this Treaty. 
4. The Protocol, including its Annexes and Appendices, shall be annexed to the 
Treaty establishing a Constitution for Europe and to the Treaty establishing the 
European Atomic Energy Community, and its provisions shall form an integral 
part of those Treaties. 
Article 2 
1. In the event that the Treaty establishing a Constitution for Europe is not in 
force on the date of accession, the Republic of Bulgaria and Romania become 
Parties to the Treaties on which the Union is founded, as amended or 
supplemented. 
In such event Article 1(2) to (4) shall become applicable from the date of entry 
into force of the Treaty establishing a Constitution for Europe. 
2. The conditions of admission and the adjustments to the Treaties on which 
the Union is founded, entailed by such admission, which will apply from the date 
of accession until the date of entry into force of the Treaty establishing a 
Constitution for Europe, are set out in the Act annexed to this Treaty. The 
provisions of that Act shall form an integral part of this Treaty. 
3. In the event that the Treaty establishing a Constitution for Europe enters into 
force after accession, the Protocol referred to in Article 1(3) shall replace the Act 
referred to in Article 2(2) on the date of entry into force of the said Treaty. In such 
event, the provisions of the aforementioned Protocol shall not be considered as 
creating a new legal effect, but as preserving, under the conditions laid down in 
the Treaty establishing a Constitution for Europe, the Treaty establishing the 
European Atomic Energy Community and that Protocol, the legal effects which 
have already been created by the provisions of the Act referred to in Article 2(2). 
Acts adopted prior to the entry into force of the Protocol referred to in Article 1(3) 
on the basis of this Treaty or the Act referred to in paragraph 2 shall remain in 
force and their legal effects shall be preserved until those acts are amended or 
repealed. 
Article 3 
The provisions concerning the rights and obligations of the Member States and the 
powers and jurisdiction of the institutions of the Union as set out in the Treaties to 
which the Republic of Bulgaria and Romania become Parties shall apply in 
respect of this Treaty. 
Article 4 
REQUEST FOR A PRELIMINARY RULING OF 5. 2. 2019 — CASE C-83/19 — 1 
 
16  
1. This Treaty shall be ratified by the High Contracting Parties in accordance 
with their respective constitutional requirements. The instruments of ratification 
shall be deposited with the Government of the Italian Republic by 31 December 
2006 at the latest. 
2. This Treaty shall enter into force on 1 January 2007 provided that all the 
instruments of ratification have been deposited before that date. 
...’ 
9 The following provisions of the Treaty on European Union are also relevant: 
Article 2 
‘The Union is founded on the values of respect for human dignity, freedom, 
democracy, equality, the rule of law and respect for human rights, including 
the rights of persons belonging to minorities. These values are common to 
the Member States in a society in which pluralism, non-discrimination, 
tolerance, justice, solidarity and equality between women and men prevail.’ 
Article 19(1) [Or. 13] 
‘The Court of Justice of the European Union shall include the Court of 
Justice, the General Court and specialised courts. It shall ensure that in the 
interpretation and application of the Treaties the law is observed. 
Member States shall provide remedies sufficient to ensure effective legal 
protection in the fields covered by Union law.’ 
The reasons why this court is submitting the request for a preliminary ruling 
10.1. In its reply, the applicant refers to the objection alleging that it has not been 
proved that the signatory of the defence, the defendant’s chief inspector, has 
powers of representation, disputing the very basis of the authorisation to act in the 
light of the provisions of the Treaty on European Union, the Treaty concerning the 
Accession of the Republic of Bulgaria and Romania to the European Union and 
the CVM, and applied to refer questions for a preliminary ruling.  
To enable it to rule on the procedural objection alleging that powers of 
representation are not proven, this court must clarify the status and legal force 
of the reports drawn up by the European Commission under the CVM. Having 
regard also for the contradictory rulings of the Curtea Constituțională a României 
(Constitutional Court, Romania) on those matters (see below), this court is 
seeking to ascertain, following the line of reasoning set out by the applicant: 
10.1.1. whether the CVM must be considered to be 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; 
ASOCIAŢIA ‘FORUMUL JUDECĂTORILOR DIN ROMÂNIA’ 
 
17 
10.1.2. whether the terms, nature and duration of the CVM come within the scope 
of application of the Treaty of Accession and whether the requirements laid down 
in the reports prepared in the context of that mechanism are binding on Romania; 
10.1.3. whether the second subparagraph of Article 19(1) TEU must be interpreted 
as meaning that it obliges the Member States to take the necessary measures to 
ensure effective legal protection in the fields covered by EU law, that is to say, 
guarantees of an independent disciplinary procedure for Romanian judges, 
eliminating all risks of political influence over the conduct of disciplinary 
procedures, such as direct Government appointment of the management of the 
Judicial Inspection, even on a provisional basis; 
10.1.4. whether Article 2 TEU must be interpreted as meaning that the Member 
States must comply with the rule of law criteria, also laid down in the reports 
prepared in the context of the CVM, in the case of procedures whereby the 
Government directly appoints the management of the Judicial Inspectorate, 
including on a provisional basis. 
10.2. The applicant founded its application by referring to the findings of the European 
Commission’s report on the CVM, made public on 13 November 2018: ‘The 
SCM did not launch a competition to appoint a new management of the Judicial 
Inspection, although the mandate of the management team expired at the end of 
August 2018. This led the Government to address the situation by adopting an 
Emergency Ordinance to nominate the current team ad interim. The argument put 
forward for this was that the law regulating the competition has been challenged 
in court [Or. 14] (by the Judicial Inspection in 2016) and that there is therefore a 
legal vacuum. The SCM did not manage to take steps to ensure that an 
appropriate solution could be found in order for the competition to be organised 
in time. The fact that the Minister of Justice decided to intervene, prolonging the 
mandates of the incumbent, could be seen to cut across the powers of the SCM.’ 
10.3. The applicant stated that, because Romania has failed to comply with those 
provisions, a referral by this court to the Court of Justice has become the 
main binding legal instrument for ensuring compliance with the obligations 
imposed by the European Union. The applicant calls to mind the settled case-
law of the Court of Justice according to which a Member State is not relieved of 
liability if a breach of its EU obligations is attributable, in whole or in part, to 
errors of interpretation or application of the relevant EU rules by its domestic 
courts: Opinion 1/2009 of 8 March 2011, ECLI:EU:C:2011:123, paragraph 87, 
and judgments of 12 November 2009, Commission v Spain, C-154/08, not 
published, EU:C:2009:695; of 6 October 2011, Commission v Italy, C-302/09, 
EU:C:2011:634; of 22 December 2010, Commission v Italy, C-304/09, 
EU:C:2010:812; and of 29 March 2012, Commission v Italy, C-243/10, not 
published, EU:C:2012:182. 
10.4. In relation to the first question, the applicant notes that the CVM was set up by 
Commission Decision 2006/928/EC of 13 December 2006, at the time of 
REQUEST FOR A PRELIMINARY RULING OF 5. 2. 2019 — CASE C-83/19 — 1 
 
18  
Romania’s accession to the European Union, in order to remedy shortcomings in 
terms of justice reform and the fight against corruption. Since then, CVM reports 
have sought to help focus the efforts of the Romanian authorities through specific 
recommendations and have charted the progress made by Romania. As the 
Council has repeatedly made clear (according to the website 
http://data.consilium.europa.eu/doc/document/ST-7118-2016-INIT/en/pdf) [last 
viewed on 9 December 2018], the CVM will end when all of the four 
benchmarks applying to Romania are satisfactorily met. The benchmarks were 
defined at the time of accession and cover issues essential to the working of 
Member States — judicial independence and efficiency, integrity and the fight 
against corruption.  
10.5. The applicant sees the creation of the CVM as a positive signal for 
compliance with the Copenhagen criteria, the name given to the EU eligibility 
criteria, defined by the Council in Copenhagen in June 1993. Those criteria 
are: stable institutions guaranteeing democracy, the rule of law, human 
rights and respect for and protection of minorities; a functioning market 
economy and the capacity to cope with competitive pressure and market 
forces within the Union; the ability to take on and effectively implement the 
obligations of membership including the aims of political, economic and 
monetary union (amongst others, having regard to the fact that the Member 
States can be a model for future Member States of the European Union). 
According to the Report from the Commission to the European Parliament 
and the Council on Progress in Romania under the Cooperation and 
Verification Mechanism of 25 January 2017 (available on the website 
https://ec.europa.eu/info/sites/info/files/com-2017-44_ro_1.pdf) [last viewed on 
9 December 2018], ‘to be met, [those criteria] require a combination of legislative 
and institutional steps. In addition, such steps can only be fully assessed by 
looking at whether their intended effect is felt in practice, and whether they can be 
considered to be embedded in the legal and institutional framework of Romania 
and to be irreversible. This allows citizens to have confidence that decisions and 
practices in Romania fully respect the rule of law and provides the basis for the 
mutual trust that is required for effective implementation of EU law. Judicial 
reform and the fight against corruption have been key issues for Romanian society 
over the last ten years. The CVM has an important role in Romania as a driver for 
[Or. 15] reform, as well as a tool to track progress. The Commission’s 
conclusions and the methodology of the CVM have consistently received the 
support of the Council, as well as benefiting from cooperation and input from 
many Member States. Cooperation has also been reinforced by targeted support to 
Romania under EU Funds. ... Legislative and institutional steps have borne fruit in 
terms of track record, thanks to the commitment shown by many judges and 
prosecutors, the implementation work of Ministers of Justice and the good 
cooperation between the Romanian authorities and the Commission. The strong 
involvement of civil society has also been key to encouraging reform of the justice 
system and concrete steps to address corruption at all levels. At the same time, 
CVM reports have continued to highlight that there remained areas where further 
reform was proving difficult — and was sometimes resisted. Underlying issues 
ASOCIAŢIA ‘FORUMUL JUDECĂTORILOR DIN ROMÂNIA’ 
 
19 
like questioning of judicial independence and the authority of court decisions, and 
sometimes specific attempts to reverse reforms, have inevitably slowed the pace 
of progress towards the objectives of the CVM.’  
10.6. The applicant observed that the CVM was set up on the basis of Article 37 and 38 
of the [Protocol concerning the conditions and arrangements for admission of the 
Republic of Bulgaria and Romania to the European Union]. Under Article 37 of 
that Protocol, ‘if Bulgaria or Romania has failed to implement commitments 
undertaken in the context of the accession negotiations, causing a serious breach 
of the functioning of the internal market, including any commitments in all 
sectoral policies which concern economic activities with cross-border effect, or an 
imminent risk of such breach the Commission may, until the end of a period of up 
to three years after accession, upon the motivated request of a Member State or 
on its own initiative, adopt European regulations or decisions establishing 
appropriate measures. Measures shall be proportional and priority shall be given 
to measures which least disturb the functioning of the internal market and, where 
appropriate, to the application of the existing sectoral safeguard mechanisms. 
Such safeguard measures shall not be invoked as a means of arbitrary 
discrimination or a disguised restriction on trade between Member States. The 
safeguard clause may be invoked even before accession on the basis of the 
monitoring findings and the measures adopted shall enter into force as of the first 
day of accession unless they provide for a later date. The measures shall be 
maintained no longer than strictly necessary and, in any case, shall be lifted when 
the relevant commitment is implemented. They may however be applied beyond 
the period specified in the first paragraph as long as the relevant commitments 
have not been fulfilled. In response to progress made by the new Member State 
concerned in fulfilling its commitments, the Commission may adapt the measures 
as appropriate. The Commission shall inform the Council in good time before 
revoking the European regulations and decisions establishing the safeguard 
measures, and it shall take duly into account any observations of the Council in 
this respect.’ 
10.7. The applicant also stated that, under Article 38 of the Protocol, ‘if there are 
serious shortcomings or any imminent risks of such shortcomings in Bulgaria or 
Romania in the transposition, state of implementation, or the application of the 
framework decisions or any other relevant commitments, instruments of 
cooperation and decisions relating to mutual recognition in the area of criminal 
law under Title VI of the Treaty on European Union and Directives and 
Regulations relating to mutual recognition in civil matters under Title IV of the 
Treaty establishing the European Community, and European laws and framework 
laws adopted on the basis of Sections 3 and 4 of Chapter IV of Title III of Part III 
of the Constitution, [Or. 16] the Commission may, until the end of a period of up 
to three years after accession, upon the motivated request of a Member State or 
on its own initiative and after consulting the Member States, adopt European 
regulations or decisions establishing appropriate measures and specify the 
conditions and modalities under which these measures are put into effect. These 
measures may take the form of temporary suspension of the application of 
REQUEST FOR A PRELIMINARY RULING OF 5. 2. 2019 — CASE C-83/19 — 1 
 
20  
relevant provisions and decisions in the relations between Bulgaria or Romania 
and any other Member State or Member States, without prejudice to the 
continuation of close judicial cooperation. The safeguard clause may be invoked 
even before accession on the basis of the monitoring findings and the measures 
adopted shall enter into force as of the first day of accession unless they provide 
for a later date. The measures shall be maintained no longer than strictly 
necessary and, in any case, shall be lifted when the shortcomings are remedied. 
They may however be applied beyond the period specified in the first paragraph 
as long as these shortcomings persist. In response to progress made by the new 
Member State concerned in rectifying the identified shortcomings, the 
Commission may adapt the measures as appropriate after consulting the Member 
States. The Commission shall inform the Council in good time before revoking the 
European regulations and decisions establishing the safeguard measures, and it 
shall take duly into account any observations of the Council in this respect.’ 
10.8. In respect of the second question, the applicant refers to the judgments of the 
Romanian Constitutional Court, observing that, before the recent solution in the 
form of judgment no 104 of 6 March 2018, the Romanian Constitutional Court 
had only twice referred to the CVM in its case-law, namely in judgment no 2 of 
11 January 2012 and judgment no 1 519 of 15 November 2011. Accordingly, by 
judgment no 1 519 of 15 November 2011 on the objection alleging that 
Article 21(1) of Legea nr. 51/1995 pentru organizarea și exercitarea profesiei de 
avocat (Law No 51/1995 on the organisation and exercise of the profession of 
avocat) (published in Monitorul Oficial al României, part I, no 67 of 27 January 
2012) was unconstitutional, the [Constitutional Court] found, succinctly, as 
follows: ‘To the same effect, this court is also of the view that the aforementioned 
provisions of the civil and criminal procedure codes relating to abstention and 
recusal are such as to satisfy the requirements 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) 
concerning the fact that all the Member States must have an impartial, 
independent and effective judicial and administrative system properly equipped, 
inter alia, to fight corruption. Accordingly, the benchmark consisting of 
establishing 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, does not 
require the national legislative system to contain statutory provisions such as 
those criticised in the present case. Nor does the benchmark consisting of 
ensuring a more transparent, and efficient judicial process necessarily involve 
establishing a prohibition such as that to which this objection of 
unconstitutionality relates’. 
10.9. The applicant also draws attention to judgment no 2 of 11 January 2012 
(published in Monitorul Oficial al României, part I, no 131 of 23 February 2012), 
delivered in the context of a prior review of constitutionality relating to the 
provisions of the law amending and supplementing Law No 303/2004 on the rules 
ASOCIAŢIA ‘FORUMUL JUDECĂTORILOR DIN ROMÂNIA’ 
 
21 
governing judges and prosecutors and Law No 317/2004 on the Superior Council 
of Magistracy, in which the court held as follows: ‘As regards those commitments, 
this court finds that according to Commission Decision [Or. 17] 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) the Commission 
had identified “remaining issues in its Report of 26 September 2006, in particular 
in the accountability and efficiency of [Romania’s] judicial system”. The Report 
from the Commission to the European Parliament and the Council on Progress in 
Romania under the Cooperation and Verification Mechanism of 20 November 
2011 found in that respect that “Romania has not yet engaged in a thorough 
reform of the disciplinary system.” Membership of the European Union imposes 
an obligation on Romania to apply that mechanism and to put into practice the 
recommendations made in that context, in accordance with Article 148(4) of the 
Constitution, according to which “the Parliament, the President of Romania, the 
Government and the judiciary will ensure that the obligations under the act of 
accession and the provisions of Article 148(2) are fulfilled”. According to its 
preamble, the law at issue enacts that obligation, regulating the offences that give 
rise to liability on the part of judges and prosecutors and including in that 
category acts that amount to breaches of the obligations specific to those offices 
or that damage their prestige. The legislation in question also implements the 
recommendations for enhancing the capacities and organisation of the Judicial 
Inspection, and the continuing process to reform that institution.’ 
10.10. However, the applicant argues that judgment no 104 of 6 March 2018 
departs from the case-law described above. The Romanian Constitutional Court 
set out the following lines of argument: 
‘80.  As regards Article 148(4) of the Constitution, relied upon in the light 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), this court notes that, under Article 2 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, 
which forms part of the Treaty of Accession, ratified by Law No 157/2005, 
published in Monitorul Oficial al României, part I, no 465 of 1 June 2005, “from 
the date of accession, the provisions of the original Treaties and the acts adopted 
by the institutions and the European Central Bank before accession shall be 
binding on Bulgaria and Romania and shall apply in those States under the 
conditions laid down in those Treaties and in this Act”’. 
81. By acceding to the EU legal order, Romania therefore agreed that, 
irrespective of the international treaties which it has concluded, in the areas in 
which the European Union has exclusive competence, performance of the 
obligations under those treaties is subject to EU rules. The undesirable situation 
would otherwise arise whereby, through international obligations undertaken 
REQUEST FOR A PRELIMINARY RULING OF 5. 2. 2019 — CASE C-83/19 — 1 
 
22  
bilaterally or multilaterally, the Member States would seriously undermine the 
competence of the European Union and, in practice, would stand in its place in 
those areas. Accordingly, in accordance with Article 148(2) of the Constitution, 
Romania acts in good faith to implement the obligations under the Act of 
Accession, without encroaching upon the exclusive competence of the 
European Union and, as established in the case-law [of the Constitutional 
Court], as a result of the conformity clause contained in the wording itself of 
Article 148 of the Constitution, Romania cannot adopt a legislative act contrary to 
its obligations as a Member State (see judgment no 887 of 15 December 2015, 
published in Monitorul Oficial al României, part I, no 191 of 15 March 2016, 
paragraph 75). There is of course a constitutional limit on the foregoing, [Or. 18] 
in the form of what this court has described as “national constitutional identity” 
(see judgment no 683 of 27 June 2012, published in Monitorul Oficial al 
României, part I, no 479 of 12 July 2012, or judgment no 64 of 24 February 2015, 
published in Monitorul Oficial al României, part I, no 286 of 28 April 2015). 
82. Furthermore, under Article 148(2) and (4) of the Constitution, using a rule 
of EU law as a rule interposed before the reference rule in question in the context 
of a review of constitutionality presupposes that both the following requirements 
are complied with: first, the EU rule must in itself be sufficiently clear, precise 
and unambiguous or its meaning must have been established clearly, precisely 
and unambiguously by the Court of Justice of the European Union and, secondly, 
that rule must be constitutionally relevant to such a degree that its legislative 
content underpins a possible breach of the Constitution — the only direct 
reference provision in the context of a review of constitutionality — by the 
national law. In such a situation the Constitutional Court takes a different 
approach from merely applying and interpreting the law — for which the lower 
courts and administrative authorities have jurisdiction — or any questions 
relating to the legislative policy pursued by Parliament or the Government as the 
case may be. 
83. Through the cumulative requirements set out, the Constitutional Court has 
discretion whether to apply decisions of the Court of Justice of the European 
Union in the context of reviewing constitutionality or, itself, to refer questions for 
a preliminary ruling in order to determine the content of the European rule. That 
view pertains to the cooperation between the national constitutional court and the 
European courts, and to the judicial dialogue between them, without thereby 
implying any hierarchy to be established between those courts (see judgment no 
668 of 18 May 2011, published in Monitorul Oficial al României, part I, no 487 of 
8 July 2011). 
84. In that context, this court notes that, as is apparent from the preamble of 
Decision 2006/928/EC, the basis relied upon for the review of constitutionality, in 
the light of Article 148(2) of the Constitution, under Articles 37 and 38 of [the Act 
concerning the conditions of accession], ratified by Law No 157/2005, published 
in Monitorul Oficial al României, part I, no 465 of 1 June 2005, Decision 
2006/928/EC was adopted before Romania acceded to the European Union, and 
ASOCIAŢIA ‘FORUMUL JUDECĂTORILOR DIN ROMÂNIA’ 
 
23 
provides in Article 1 that Romania will, 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, which are four in 
number, namely: 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. 
85. This court therefore notes that Decision 2006/928/EC provides for an 
integrity agency to be established but does not in any way oblige the legislature 
to determine incompatibilities, and that the aspects referred to were addressed 
before accession, even though the Protocol of 31 March 2005 concerning the 
conditions and arrangements for admission of the Republic of Bulgaria and 
Romania to the European Union provides that those decisions would be adopted, 
where necessary, after accession. Decision 2006/928/EC also states that it will 
enter into force “only subject to and on the date of the entry into force [Or. 19] of 
the Treaty of Accession”. [Article 3 of Decision 2006/928/EC]. 
86. Accordingly, in accordance with Articles 37 and 38 of the Act concerning 
the conditions of accession of the Republic of Bulgaria and Romania to the 
European Union — annexed to the Treaty of Accession [...], relied upon as the 
basis for adopting Decision 2006/928/EC, if Bulgaria or Romania has failed to 
implement commitments undertaken in the context of the accession negotiations, 
causing a serious breach of the functioning of the internal market, including any 
commitments in all sectoral policies which concern economic activities with 
cross-border effect, or an imminent risk of such breach the Commission may, until 
the end of a period of up to three years after accession, upon the motivated 
request of a Member State or on its own initiative, adopt European regulations or 
decisions establishing appropriate measures. Those measures will be proportional 
and priority will be given to measures which least disturb the functioning of the 
internal market and, where appropriate, to the application of the existing sectoral 
safeguard mechanisms. If there are serious shortcomings or any imminent risk of 
such shortcomings in Bulgaria or Romania in the transposition, state of 
implementation, or the application of the framework decisions or any other 
relevant commitments, instruments of cooperation and decisions relating to 
mutual recognition in the area of criminal law under Title VI TEU and Directives 
and Regulations relating to mutual recognition in civil matters under Title IV of 
the EC Treaty, the Commission may, until the end of a period of up to three years 
after the date of accession, upon the motivated request of a Member State or on its 
own initiative and after consulting the Member States, take appropriate measures 
and specify the conditions and modalities under which these measures are put into 
REQUEST FOR A PRELIMINARY RULING OF 5. 2. 2019 — CASE C-83/19 — 1 
 
24  
effect. Those measures may take the form of temporary suspension of the 
application of relevant provisions and decisions in the relations between Bulgaria 
or Romania and any other Member State or Member States, without prejudice to 
the continuation of close judicial cooperation. The safeguard clause may be 
invoked even before accession on the basis of the monitoring findings and the 
measures adopted will enter into force as of the first day of accession unless they 
provide for a later date. The measures will be maintained no longer than strictly 
necessary and, in any case, will be lifted when the shortcomings are remedied. 
87. Furthermore, under Article 39(1) of the Act concerning the conditions of 
accession of the Republic of Bulgaria and Romania to the European Union — 
annexed to the Treaty of Accession, if, on the basis of the Commission’s 
continuous monitoring of commitments undertaken by Bulgaria and Romania in 
the context of the accession negotiations and in particular the Commission’s 
monitoring reports, there is clear evidence that the state of preparations for 
adoption and implementation of the acquis in Bulgaria or Romania is such that 
there is a serious risk of either of those States being manifestly unprepared to 
meet the requirements of membership by the date of accession of 1 January 2007 
in a number of important areas, the Council may, acting unanimously on the basis 
of a Commission recommendation, decide that the date of accession of that State 
is postponed by one year to 1 January 2008. 
88. In the light of the settled case-law of the Constitutional Court on the topic, 
the meaning 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, a measure adopted before Romania became a member 
of the European Union, has not been interpreted by the Court of Justice of the 
European Union as regards its content, nature and duration, or as regards 
whether those aspects implicitly fall within the scope of application of the Treaty 
of Accession, by means of Law No 157/2005, [Or. 20] which forms part of the 
domestic legal system, and Decision 2006/928/EC therefore cannot be a 
reference provision for the purpose of reviewing constitutionality under 
Article 148 of the Constitution. 
89. Moreover, even assuming that Decision 2006/928/EC could be an 
indicator for assessing whether legislation is constitutional, that decision would 
have no effect in the present case, since its provisions merely recommend that 
an integrity agency be established, with administrative capacity to conduct 
investigations in relation to incompatibilities and potential conflicts of interest, 
and to issue mandatory decisions that can give rise to sanctions. 
90. In addition, establishing incompatibilities, other than those laid down by the 
constitution of the State in question, is a matter within the exclusive competence of 
the Member States since, as this court held in decision no 80 of 16 February 2014, 
published in Monitorul Oficial al României, part I, no 246 of 7 April 2014, 
paragraph 456, the Constitution, the fundamental law of the State, is the 
ASOCIAŢIA ‘FORUMUL JUDECĂTORILOR DIN ROMÂNIA’ 
 
25 
expression of the will of the people, and it therefore cannot cease to have 
binding force merely because there is a discrepancy between its provisions and 
the European provisions. Similarly, accession to the European Union cannot 
undermine the supremacy of the Constitution over the entire legal order (see 
also, to that effect, judgment of 11 May 2005, K 18/04, issued by the 
Constitutional Court of the Republic of Poland). 
91. The Constitution provides that, following accession, the provisions of the 
Treaties establishing the European Union and other binding Community rules 
prevail over conflicting provisions of national legislation, in accordance with the 
provisions of the Act of Accession. Nevertheless, as regards the notion of 
“national legislation”, in its judgment no 148 of 16 April 2003 on the 
constitutionality of the proposal for a law amending the Romanian Constitution, 
this court distinguished between the Constitution and other laws (see judgment no 
80 of 16 February2014, published in Monitorul Oficial al României, part I, no 
246 of 7 April 2014, paragraph 452). Furthermore, the Constitution makes the 
same distinction in the last sentence of Article 20(2), according to which 
international rules prevail unless the Constitution or national laws contain more 
favourable provisions, and Article 11(3) provides that, where a treaty to which 
Romania wishes to become a party contains provisions contrary to the 
Constitution, it can only be ratified once the Constitution has been amended. 
92. As regards the reference to Legea nr. 365/2004 pentru ratificarea 
Convenției Națiunilor Unite împotriva corupției, adoptată la New York la 31 
octombrie 2003 (Law No 365/2004 ratifying the United Nations Convention 
against Corruption, adopted in New York on 31 October 2013), in the light of 
Article 11(1), this court notes that Article 65, entitled “Application of the 
Convention”, provides that: “1. Each State Party shall take the necessary 
measures, including legislative and administrative measures, in accordance with 
fundamental principles of its domestic law, to ensure the implementation of its 
obligations under this Convention. 2. Each State Party may adopt more strict or 
severe measures than those provided for by this Convention for preventing and 
combating corruption.” Accordingly, in the light of the case-law of the 
Constitutional Court on incompatibilities, and the fact that establishing provisions 
on integrity is a question of expediency within the discretion of the legislature, it 
cannot be found that Article 11 of the Constitution has been breached, as alleged, 
by any infringement of international rules. Furthermore, the applicant in the 
constitutional review proceedings does not specify the imperative rules that 
allegedly preclude the legislature’s right to exercise discretion in establishing 
incompatibilities in addition to those laid down by the Constitution or, in contrast, 
to waive incompatibilities already established by measures ranking below the 
Constitution, on the basis of protected social values [and] changes in society 
whereby people can organise their behaviour on the basis that they are themselves 
aware of the supremacy of the social values which must be protected in order to 
contribute to respect for the rule of law, with no requirement for any additional 
constraint [Or. 21] in the form of legislation that would extend the 
incompatibilities already laid down by the Constitution. 
REQUEST FOR A PRELIMINARY RULING OF 5. 2. 2019 — CASE C-83/19 — 1 
 
26  
93. In the light of the foregoing, having regard to the case-law on 
incompatibilities of the Constitutional Court, and to the fact that establishing 
provisions on integrity is a question of expediency falling within the discretion of 
the legislature and that, in that context, by virtue of Article 148 of the Constitution 
the legislature is one of the entities that guarantee compliance with the 
obligations under the Act of Accession, as this court already held in its judgment 
no 2 of 11 January 2012, published in Monitorul Oficial al României, part I, no 
131 of 23 February2012, this court finds that the legislature’s discretion allows it 
to legislate on this matter, naturally within the limits defined by the Constitution 
concerning constitutional identity, national sovereignty and the obligations 
arising from Articles 11 and 148 of the Constitution.  
94. For the foregoing reasons, this court also cannot find that Article 147(4) of 
the Constitution has been infringed, as alleged, since the findings of the 
Constitutional Court in the case-law to which the applicant [in the constitutional 
review proceedings] refers cannot at a stroke be turned into grounds for removing 
the legislative power’s constitutional rights to adopt legislative acts, with all the 
more reason where the matter being regulated relates to questions of expediency 
that fall within the discretion of the legislature.’ 
10.10 [...] [Articles 19 and 21 TEU]  
10.11. This court is of the view that the applicant’s references both to acts and 
provisions of primary EU law and to the case-law of the Constitutional Court are 
relevant. The applicant has argued that the Constitutional Court departed from its 
earlier case-law when it delivered judgment no 104 of 6 March 2018, in which it 
held that Decision 2006/928/EC loses some of its legal force when it is set against 
the constitutional rule (according to paragraph 90 [of that judgment], ‘the 
Constitution ... is the expression of the will of the people, and it therefore 
cannot cease to have binding force merely because there is a discrepancy 
between its provisions and the European provisions’), and also found that 
Decision 2006/928/EC is a ‘measure adopted before Romania became a 
member of the European Union, [which] has not been interpreted by the 
Court of Justice of the European Union as regards its content, nature and 
duration, or as regards whether those aspects implicitly fall within the scope 
of application of the Treaty of Accession, by means of Law No 157/2005’, and 
that it cannot be ‘a reference provision for the purpose of reviewing 
constitutionality under Article 148 of the [Or. 22] Constitution’ 
(paragraph 88), emphasising that it is a recommendation. All those considerations 
are grounds which have led the national court to make a request for a 
preliminary ruling. 
10.12. The applicant continued, asserting that judicial review of compliance 
with the legal order of the European Union, as described in Article 19(1) 
TEU, is provided by the Court of Justice and the courts of the Member 
States. Furthermore, the European Union is a union based on the rule of law 
and the acts of its institutions are subject to review of the question whether 
ASOCIAŢIA ‘FORUMUL JUDECĂTORILOR DIN ROMÂNIA’ 
 
27 
their acts are in conformity with, in particular, the Treaties, the general 
principles of law and fundamental rights. [...] [Article 2 TEU] 
10.13. The applicant calls to mind the judgment of 27 February 2018, 
Associação Sindical dos Juízes Portugueses, C-64/16, EU:C:2018:117, in which 
the Court of Justice held as follows: 
‘42 The guarantee of independence, which is inherent in the task of adjudication 
(see, to that effect, judgments of 19 September 2006, Wilson, C-506/04, 
EU:C:2006:587, paragraph 49; of 14 June 2017, Online Games and Others, 
C-685/15, EU:C:2017:452, paragraph 60; and of 13 December 2017, El Hassani, 
C-403/16, EU:C:2017:960, paragraph 40), is required not only at EU level as 
regards the Judges of the Union and the Advocates General of the Court of 
Justice, as provided for in the third subparagraph of Article 19(2) TEU, but also at 
the level of the Member States as regards national courts. 
43 The independence of national courts and tribunals is, in particular, essential 
to the proper working of the judicial cooperation system embodied by the 
preliminary ruling mechanism under Article 267 TFEU, in that, in accordance 
with the settled case-law referred to in paragraph 38 above, that mechanism may 
be activated only by a body responsible for applying EU law which satisfies, inter 
alia, that criterion of independence. 
44 The concept of independence presupposes, in particular, that the body 
concerned exercises its judicial functions wholly autonomously, without being 
subject to any hierarchical constraint or subordinated to any other body and 
without taking orders or instructions from any source whatsoever, and that it 
is thus protected against external interventions or pressure liable to impair 
the independent judgment of its members and to influence their decisions 
(see, to that effect, judgments of 19 September 2006, Wilson, C-506/04, 
EU:C:2006:587, paragraph 51, and of 16 February 2017, Margarit Panicello, 
C-503/15, EU:C:2017:126, paragraph 37 and the case-law cited).’ 
10.14. In relation to domestic legislation, the applicant states that the period 2017-
2018 saw three amendments of the laws known collectively as the ‘justice’ laws, 
that is to say, Law No 303/2004 on the rules governing judges and prosecutors, 
Legea nr. 304/2004 privind organizarea judiciară (Law No 304/2004 on the 
judicial organisation) and Law No 317/2004 on the Superior Council of 
Magistracy, which were all republished, and then amended and supplemented. 
The applicant notes that a significant number of those amendments, which were 
severely criticised by the European Commission for Democracy through Law 
(‘the Venice Commission’) and by GRECO [Group of States Against Corruption] 
are extremely damaging to the judiciary, and that application of the provisions in 
question must be postponed or suspended until the date on which those provisions 
currently in force have been fully revised or repealed, as applicable. In principle, 
the Romanian legislature and executive must act immediately on the opinion 
issued by the Venice Commission on 13 July 2018, [Or. 23] in order to avoid 
REQUEST FOR A PRELIMINARY RULING OF 5. 2. 2019 — CASE C-83/19 — 1 
 
28  
destruction of the judiciary. That assertion is revealing in terms of compliance 
with rule of law provisions in Romania, in many respects in relation to 
amendments to the justice laws, and cannot be ignored forever, since recent 
developments in public life seriously imperil the independence of justice and 
Romania’s position in the context of the European Union and the Council of 
Europe, as the European Commission and GRECO have already found. 
10.15. As regards reorganisation of the Judicial Inspection, the applicant 
submits that the amendments have unjustifiably strengthened the powers of 
the chief inspector, who has power to appoint, from among the judicial 
inspectors, those who are to perform management functions (after merely 
evaluating the management projects specific to each management position) who, 
in practice, controls the selection of judicial inspectors, runs and controls the 
inspection activity and disciplinary procedures and is the principal issuer of 
instructions and the only person with capacity to bring disciplinary proceedings. 
All those amendments are indications that the professional rules imposed on the 
management of the Judicial Inspection are being minimised, causing it to lose its 
operational independence. This trend has an adverse effect on the quality of the 
activity of the Judicial Inspection in relation to judges’ liability and is therefore 
likely to imperil the independence of justice and even the constitutional role of the 
Superior Council of Magistracy as guarantor of judicial independence. By 
including a provision that, first, encourages the chief inspector to act subjectively 
when appointing the management of the Judicial Inspection and, secondly, makes 
all the management mandates in the Judicial Inspection dependent on the mandate 
of the chief inspector, the legislation infringes the principle of legal certainty 
when the judicial inspectors in question exercise management mandates. 
10.16. What is more, the applicant claims that adopting Emergency 
Ordinance No 77/2018 has effects intuitu personae, as apparent from its 
preamble — ‘given the need for the substitutes in those offices to be persons with 
proven professional competence in the field of management, who already perform 
the duties in question, have in-depth knowledge of the activity of the Judicial 
Inspection and have undergone a competitive examination both when they were 
first appointed and on being given a new mandate, on the terms laid down in the 
legislation’. [See Article II of Emergency Ordinance No 77/2018: ‘Article 67(7) 
of Law No 317/2004 will also apply to situations in which the position of chief 
inspector or of deputy chief inspector, as applicable, of the Judicial Inspection is 
vacant on the date on which this emergency ordinance comes into force.’]. The 
Judicial Inspection, as guarantor of judicial independence under Article 133(1) of 
the Constitution, has powers, pursuant to Law No 317/2004, to defend judges and 
prosecutors against any act capable of affecting their independence or impartiality 
or casting suspicion on them (Article 30) and relating to the career of judge and 
prosecutor (Article 35), admission to the judiciary, the assessment and training of 
judges and prosecutors and their examinations (Article 36), and the organisation 
and functioning of courts and prosecution offices (Article 37). The draft 
legislation that requires an opinion of the [Superior] Council [of Magistracy] 
therefore includes legislative acts relating to the status of judges and 
ASOCIAŢIA ‘FORUMUL JUDECĂTORILOR DIN ROMÂNIA’ 
 
29 
prosecutors (containing provisions relating to the rights and obligations of judges 
and prosecutors, incompatibilities and prohibitions, the appointment, promotion, 
suspension and removal of judges and prosecutors, delegation, secondment and 
transfers of judges and prosecutors, the liability of judges and prosecutors and so 
forth), currently governed by Law No 317/2004, to the organisation of the 
judicial system (courts — organisation/areas of competence /management, the 
Public Prosecutor’s Office — organisation/ areas of competence /management, the 
organisation and functioning of the Institutului Naţional al Magistraturii (National 
Institute of Magistracy), the specialised ancillary sections of the courts and 
prosecution offices, the budgets of courts [Or. 24] and public prosecution offices 
and so forth), currently governed by Law No 304/2004, and to the organisation 
and functioning of the Judicial Inspection, governed by Law No 317/2004 [see 
judgment no 63 of 8 February2017 of the Constitutional Court], which governs 
matters including the organisation and functioning of the Judicial Inspection. 
10.17. The applicant calls to mind that, under Article 67 of Law No 317/2004, the 
chief inspector and deputy chief inspector are appointed by the general meeting of 
the Superior Council of Magistracy from among office holding judicial inspectors, 
following a competitive examination consisting of submission of a project relating 
to performance of the powers specific to the management position in question, a 
written test of knowledge in the field of management, communication, human 
resources and of the candidate’s ability to make decisions and take responsibility 
and resilience to stress, and a psychological test. That competitive examination 
will be organised by the Superior Council of Magistracy, in accordance with the 
rules approved by a decision of the general meeting of the Superior Council of 
Magistracy published in the Monitorul Oficial al României, part I. There is no 
express statutory provision of the kind contained in Emergency Ordinance 
No 77/2018 (‘7. Where the position of chief inspector or deputy chief inspector, as 
applicable, of the Judicial Inspection becomes vacant as a result of expiry of the 
mandate, the chief inspector or deputy chief inspector, as applicable, whose 
mandate has expired will act as substitute until the date on which that position is 
filled on the terms laid down by the legislation’) for other management offices 
in the judicial system (court presidents, section presidents, chief public 
prosecutors and so forth), although that fact has not prevented application of the 
legal remedy under the ordinary law, namely in Law No 303/2004 on the rules 
governing judges and prosecutors, which governs the legal mechanism by which 
the Judicial Inspection delegates a person to a management office (according to 
the minutes of meetings of the Judicial Inspection Commission No 1 — 
Legislation and inter-institutional cooperation — of 9 July and 3 September 2018, 
which can be viewed at https://www.csm1909.ro/ViewFile.ashx?guid=d6dce35b-
eb5e-4c8f-ba47-aefe25c62b3d|InfoCSM and 
https://www.csm1909.ro/ViewFile.ashx?guid= 798406b2-192d-4725-b47a-
c7be7b51d867|InfoCSM [last viewed on 6 September 2018]. 
10.18. The applicant also states that Decision no 159 of 9 March 2012 of the 
general meeting of the Judicial Inspection, approving the rules for the organisation 
and conduct of the competitive examination for the positions of chief inspector 
REQUEST FOR A PRELIMINARY RULING OF 5. 2. 2019 — CASE C-83/19 — 1 
 
30  
and deputy chief inspector of the Judicial Inspection, was suspended by order of 
the Curtea de Apel București (Court of Appeal, Bucharest, Romania), with the 
effect that the mandates of the current management of the Judicial Inspection 
that have been automatically extended, on a temporary replacement basis, as 
a result of Emergency Ordinance No 77/2018, will be extended indefinitely, 
and the Judicial Inspection is unable to exercise its statutory prerogative of 
delegating people to management functions by assessing the projects 
submitted by the judicial inspectors wishing to perform that office ad interim. 
In the applicant’s view, under Article 133(1) of the Romanian Constitution ‘the 
Superior Council of Magistracy is the guarantor of judicial independence’, 
thereby implying that it has a discretion not only to appoint the chief inspector and 
the deputy chief inspector of the Judicial Inspection, on the terms set out in 
Article 67 of Law No 317/2004, but also to delegate a person to one of those 
management positions that has become vacant when a mandate expires, on the 
terms of Article 57 of Law No 303/2004 on the rules governing judges and 
prosecutors. 
10.19. The applicant submits that a legislative intervention in the form of a 
Government emergency ordinance does not have the effect of rectifying an 
alleged ‘legislative vacuum’, as the preamble of the ordinance states, but of 
depriving the Judicial Inspection of one of the powers attaching to its 
constitutional role as guarantor of judicial independence, by making it 
possible under the law in force [Or. 25] to hold a management office 
indefinitely, as the result of an expired mandate being automatically extended 
by indiscriminate operation of law, without the Judicial Inspection being able 
to exercise the discretion that is fundamental to its constitutional role. The 
applicant referred to the case-law of the Court of Justice of the European 
Union to that effect: 
‘The requirement of independence also means that the disciplinary regime 
governing those who have the task of adjudicating in a dispute must display 
the necessary guarantees in order to prevent any risk of its being used as a 
system of political control of the content of judicial decisions. Rules which 
define, in particular, both conduct amounting to disciplinary offences and the 
penalties actually applicable, which provide for the involvement of an 
independent body in accordance with a procedure which fully safeguards the 
rights enshrined in Articles 47 and 48 of the Charter, in particular the rights 
of the defence, and which lay down the possibility of bringing legal 
proceedings challenging the disciplinary bodies’ decisions constitute a set of 
guarantees that are essential for safeguarding the independence of the 
judiciary.’ [See judgment of 25 July 2018, Minister for Justice and Equality 
(Deficiencies in the system of justice), C-216/18 PPU, EU:C:2018:586, 
paragraph 67]. 
Furthermore, ‘the requirement of judicial independence forms part of the 
essence of the fundamental right to a fair trial, a right which is of cardinal 
importance as a guarantee that all the rights which individuals derive from 
ASOCIAŢIA ‘FORUMUL JUDECĂTORILOR DIN ROMÂNIA’ 
 
31 
EU law will be protected and that the values common to the Member States 
set out in Article 2 TEU, in particular the value of the rule of law, will be 
safeguarded’ [see judgment of 25 July 2018, Minister for Justice and Equality 
(Deficiencies in the system of justice), C-216/18 PPU, EU:C:2018:586, 
paragraph 48]. 
10.20. The applicant claims that, according to the relevant provisions, the fact 
that the Government has extended the mandates of the current management 
of the Judicial Inspection encroaches on the powers of the Superior Council 
of Magistracy, having regard to the powers of the chief judicial inspectors 
and to judicial independence, which is an essential requirement for ensuring 
effective judicial protection. The guarantee of independence, inherent in the 
task of adjudication, is required not only at EU level as regards the Judges of 
the European Union and the Advocates General of the Court of Justice, as 
provided for in the third subparagraph of Article 19(2) TEU, but also at the 
level of the Member States as regards national courts. 
10.21. This court concurs with the applicant’s detailed grounds, supported by 
references to the case-law of the Court of Justice, on how the adoption of 
Emergency Ordinance No 77/2018 has adversely affected the independence of the 
judicial system. In addition to the arguments set out above, this court notes that 
the legislative act adopted by the Romanian Government does not provide for 
sufficient predictability, since the legal provisions in question set no limit on how 
long the offices can be held ad interim, and do not establish any obligation on the 
general meeting of the Superior Council of Magistracy to organise the competitive 
examination referred to in Article 67 of Law No 317/2004. The entity given the 
constitutional task of overseeing the independence of the judicial system is in that 
way relegated to the background by the disappearance of one of its fundamental 
powers. Primary EU law includes the rule of law as one of the fundamental 
values of the European Union, and the Court of Justice of the European Union has 
jurisdiction to interpret the Treaties. A further reason that has led this court to 
refer questions for a preliminary ruling is therefore the need to ascertain 
whether the requirement to guarantee an independent judicial system obliges the 
Member States to take the necessary measures to ensure effective legal protection 
[Or. 26] in the fields covered by EU law, that is to say, guarantees of an 
independent disciplinary procedure for Romanian judges, eliminating all risks of 
political influence over the conduct of disciplinary procedures, such as direct 
Government appointment of the management of the Judicial Inspection, including 
on a provisional basis. Closely linked to the foregoing, in relation to the facts of 
the present case, we are mindful of the Member States’ specific obligation to 
comply with the rule of law criteria, also laid down in the reports prepared in the 
context of the CVM, in the case of procedures whereby the Government directly 
appoints the management of the Judicial Inspectorate, including on a provisional 
basis. 
REQUEST FOR A PRELIMINARY RULING OF 5. 2. 2019 — CASE C-83/19 — 1 
 
32  
10.22. The defendant contends, in essence, that the points raised by the applicant 
are purely internal matters, unconnected with resolution of the matter before the 
court. 
10.23. This court finds that, should the Court of Justice rule that acts of an 
institution of the European Union (in casu, the CVM) are binding and, read in 
conjunction with the aforementioned provisions of the Treaties (Article 2 of the 
Treaty of Accession and the second subparagraph of Article 19(1) TEU), 
preclude the adoption of statutory provisions such as those in Emergency 
Ordinance No 77/2018, in the light of the principle of the supremacy of EU law 
(which prevails over national legislation, as the Court of Justice held for the first 
time in its judgment of 15 July 1964, Costa, 6/64, EU:C:1964:66), this court will 
be bound to apply the European rules, including in the light of Article 148(2) 
(‘following accession, the provisions of the Treaties establishing the European 
Union, and other binding Community rules prevail over conflicting 
provisions of national legislation, in accordance with the provisions of the Act of 
Accession’) and 148(4) (‘the Parliament, the President of Romania, the 
Government and the judiciary will ensure that the obligations under the Act of 
Accession and the provisions of Article 148(2) are fulfilled’) of the Romanian 
Constitution . 
11. If that is the case, the immediate consequence will be to render nugatory the basis 
on which Judge Lucian Netejoru (chief inspector of the defendant institution on 
the date on which the defence was lodged) represents the defendant, the Judicial 
Inspection, by removing the provisions of Emergency Ordinance No 77/2018 
from national law. In procedural terms, that will mean that this court would be 
able to rule on the objection that it is not proven that there were powers of 
representation at the time the defence was lodged, upholding that objection, and 
thereby striking out a pleading, the defence, and by implication the evidence and 
the objection pleaded by the defendant. That decision will have repercussions on 
how the court exercises its active role and on the limits of that role (under 
Article 22(2) of the Civil Procedure Code), on how the rights of the defence are 
upheld, on the hearing of evidence and, lastly, on the resolution of the case in the 
light of all the heads of claim. Taking all the possible scenarios into consideration, 
the solution may be either to uphold the application, in full or in part, or to dismiss 
it as inadmissible, [Or. 27] devoid of purpose or unfounded. 
11.1. The applicant submits that, to the extent to which it is established that 
Romania has failed to comply with its obligations in the context of the 
European Union (the CVM and Article 2 and the second subparagraph of 
Article 19(1) TEU), it will be proven that the defendant’s legal representative 
has no right to act, irrespective of whether or not there is a decision of the 
general meeting of the Superior Council of Magistracy as has been sought as 
proof of legal powers of representation, thereby causing the defence 
produced in the case file to be struck out, comprising as it does the pleading 
that adduced evidence, made an objection and submitted pleas in defence, 
none of which will be taken into account in determining the case. 
ASOCIAŢIA ‘FORUMUL JUDECĂTORILOR DIN ROMÂNIA’ 
 
33 
12. After analysing the case-law of the Court of Justice, this court has not identified 
any other significant situations. The applicant called to mind the principal 
judgments relevant for resolving this case: judgments of 12 November 2009, 
Commission v Spain, C-154/08, not published, EU:C:2009:695; of 6 October 
2011, Commission v Italy, C-302/09, EU:C:2011:634; of 22 December 2010, 
Commission v Italy, C-304/09, EU:C:2010:812; and of 29 March 2012, 
Commission v Italy, C-243/10, not published, EU:C:2012:182. The judgments of 
27 February2018, Associação Sindical dos Juízes Portugueses, C-64/16, 
EU:C:2018:117 and of 25 July 2018, Minister for Justice and Equality 
(Deficiencies in the system of justice), C-216/18 PPU, EU:C:2018:586, are also 
relevant. However, the judgments referred to do not contain any rulings that can 
be relied upon in the specific situation here in question, which calls in particular 
for interpretation of the CVM and articles of the Treaty of Accession. 
The national court’s position 
13. In the light of the exhaustive grounds set out by the applicant, this court will 
summarise its position. It finds, accordingly, that Article 267 TFEU establishes 
the jurisdiction of the Court of Justice of the European Union to give a 
preliminary ruling both on ‘interpretation of the Treaties’ and on the ‘validity and 
interpretation of acts of the institutions, bodies, offices and agencies of the Union. 
Where such a question is raised before any court or tribunal of a Member State, 
that court or tribunal may, if it considers that a decision on the question is 
necessary to enable it to give judgment, request the Court to give a ruling 
thereon.’ 
14. Having regard, first of all, for the fact that the CVM was established, when 
Romania became a member of the European Union, by Commission Decision 
2006/928/EC of 13 December 2006, which is the main harmonising instrument 
and is necessary to assist in developing administrative and judicial systems and 
make them more effective, to enable the State to fulfil its obligations as a member 
of the European Union and to ensure the correct application of European 
legislation, policies and programmes, this court notes that the acts adopted on the 
basis of the CVM are acts of an institution of the European Union (the 
Commission is an institution of the European Union, as established in 
Article 13(1) [TEU], and therefore subject [Or. 28] to interpretation by the Court 
of Justice of the European Union. The CVM must therefore be considered to be 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. 
15. Since the purpose of the CVM is to develop administrative and judicial systems 
and to make them more effective, to enable the States that have expressed their 
wish to become members of the European Union to fulfil their obligations as 
members of the European Union, and since the Treaty of Accession recognises 
those States as Member States, the content, nature and duration of the CVM then 
REQUEST FOR A PRELIMINARY RULING OF 5. 2. 2019 — CASE C-83/19 — 1 
 
34  
come within the scope of application of the Treaty of Accession. To find 
otherwise would render meaningless precisely the measure that has been 
established. The requirements laid down in the reports prepared in the context 
of that mechanism are therefore also binding on Romania. An argument from 
an even stronger reason lies in the nature of directives, which are binding, on the 
terms laid down in the case-law of the Court of Justice, and concern the 
harmonisation of national legislation: if directives are binding on the Member 
States, with all the more reason the requirements laid down in the reports 
established in the context of the CVM, which are intended to correct 
shortcomings in the administrative and judicial systems of certain Member 
States, are binding on those Member States, in this case, on Romania. 
16. In order to give its opinion on the last two questions, this court bears in mind that 
the Treaty on European Union is part of EU primary law and that the Member 
States are bound to comply with the provisions of the Treaties in precedence over 
those of national legislation. Article 2 TEU establishes the rule of law as a 
fundamental value of the European Union, in a society based on pluralism, non-
discrimination, tolerance, justice, solidarity and equality between women and 
men. The CVM was established, inter alia, to remedy the shortcomings of the 
justice system. That system must provide all the guarantees that independence 
from the other powers of the State implies. Accordingly, referring to the recent 
case-law of the Court of Justice, set out by the applicant, this court finds that the 
second subparagraph of Article 19(1) TEU must be interpreted as meaning that it 
obliges the Member States to take the necessary measures to ensure effective legal 
protection in the fields covered by EU law, that is to say guarantees of an 
independent disciplinary procedure for Romanian judges, eliminating all risks of 
political influence over the conduct of disciplinary procedures, such as direct 
Government appointment of the management of the Judicial Inspection, including 
on a provisional basis. Likewise, Article 2 TEU must be interpreted as meaning 
that the Member States must comply with the rule of law criteria, also laid down 
in the reports prepared in the context of the CVM, in the case of procedures 
whereby the Government directly appoints the management of the Judicial 
Inspectorate, including on a provisional basis. [Or. 29] 
Grounds for the request for a preliminary ruling under an expedited 
procedure 
17. Under Article 105 of the Rules of Procedure of the Court of Justice, at the request 
of the referring court or tribunal or, exceptionally, of his own motion, the 
President of the Court may, where the nature of the case requires that it be dealt 
with within a short time, after hearing the Judge-Rapporteur and the Advocate 
General, decide that a reference for a preliminary ruling is to be determined 
pursuant to an expedited procedure derogating from the provisions of those Rules. 
18. In the present case, urgent treatment is justified, first, by the fact that the case 
relates to resolution of a procedural objection, on which, according to domestic 
ASOCIAŢIA ‘FORUMUL JUDECĂTORILOR DIN ROMÂNIA’ 
 
35 
procedural provisions, a ruling must be made before the substantive case is 
resolved, in a dispute the subject matter of which is of genuine interest for the 
Romanian judicial system and, secondly, by the nature of the case, which 
requires an immediate decision, since rule of law requirements cannot be 
subjected to lengthy timescales, given that irreparable harm may occur 
during that time. 
[...] 
5 February2019 
[...]