Opinion of the Advocate General — ECLI:EU:C:2021:174
Date: 2021-03-04
Language of the case: Romanian
Subject matter: Budget;Financial provisions;Provisions governing the Institutions;Own resources;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling
Origin: Romania

Summary C-379/19 - 1 
Case C-379/19 
Summary of the request for a preliminary ruling, pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged:  
14 May 2019 
Referring court:  
Tribunalul Bihor (Romania) 
Date of the decision to refer:  
14 May 2019 
Body responsible for bringing the criminal proceedings:  
Direcția Națională Anticorupție – Serviciul Teritorial Oradea 
Defendants:  
IG 
JH 
KI 
LJ 
      
Subject matter of the main proceedings 
Criminal proceedings against the defendants KI, LJ, JH and IG, charged before 
the Tribunalul Bihor (Tribunal, Bihor) with corruption offences, and in which a 
request has been made to exclude certain items of evidence acquired in the course 
of the criminal investigations.  
Subject matter and legal basis of the request for a preliminary ruling 
Pursuant to Article 19(3)(b) TEU and Article 267 TFEU, the Tribunalul Bihor 
seeks an interpretation of Commission Decision 2006/928/EC of 13 December 
2016, Article 2 TEU, Article 4(3) TEU and the principle of judicial independence, 
EN 
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enshrined in the second subparagraph of Article 19(1) TEU and Article 47 of the 
Charter of Fundamental Rights of the European Union.  
 
Questions referred 
(1) Are the Cooperation and Verification Mechanism (CVM), established by 
Commission Decision 2006/928/EC of 13 December 2006, and the requirements 
laid down in reports prepared in accordance with that mechanism binding on 
Romania?  
(2) Is Article 2, in conjunction with Article 4(3), of the Treaty on European 
Union, to be interpreted as meaning that the obligation on Romania to comply 
with the requirements laid down in reports prepared in accordance with the 
Cooperation and Verification Mechanism (CVM), established by Commission 
Decision 2006/928/EC of 13 December 2006, forms part of the Member State’s 
obligation to comply with the principles of the rule of law, including in so far as 
concerns a constitutional court (a politico-judicial institution) refraining from 
intervening in order to interpret the law and to establish the specific and 
mandatory rules for the application of the law by judicial bodies, a task which 
falls within the exclusive jurisdiction of the judicial authorities, and in order to 
introduce new legislative measures, a task which falls within the exclusive 
competence of the legislative authorities? Does EU law require that the effects of 
any such decision, adopted by a constitutional court, should be disregarded? Does 
EU law preclude a provision of national law which governs the liability to 
disciplinary action of the judge who disapplied the decision of the Curtea 
Constituțională (Constitutional Court), in the context of the question referred?  
(3) Does the principle of judicial independence, enshrined in the second 
subparagraph of Article 19(1) TEU and in Article 47 of the Charter of 
Fundamental Rights of the European Union, as interpreted by the Court of Justice 
of the European Union (Grand Chamber, judgment of 27 February 2018, 
Associação Sindical dos Juízes Portugueses, C-64/16, EU:C:2018:117), preclude 
the competences of courts being replaced by decisions of the Curtea 
Constituțională (Decision No 51 of 16 February 2016, Decision No 302 of 4 May 
2017 and Decision No 26 [of 16 January 2019]), the result of which is that 
criminal proceedings are unforeseeable (retroactive application) and that it is 
impossible to interpret the law and apply it in the case under consideration? Does 
EU law preclude a provision of national law which governs the liability to 
disciplinary action of the judge who disapplied the decision of the Curtea 
Constituțională (Constitutional Court), in the context of the question referred? 
Provisions of EU law cited 
Article 2, Article 4(3) and the second subparagraph of Article 19(1) TEU.  
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Article 47 of the Charter of Fundamental Rights of the European Union.  
Articles 37 and 38 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.  
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.  
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.  
Judgments of the Court of Justice in Case 294/83, Les Verts v Parliament; Case 
C-496/99 P, Commission v CAS Succhi di Frutta; Joined Cases 212/80 to 217/80, 
Amministrazione delle Finanze dello Stato v Salumi and Others; Joined Cases 
46/87 and 227/88, Hoechst v Commission; Case C-583/11 P, Inuit Tapiriit 
Kanatami and Others v Parliament and Council; Case C-550/09, E and F; Case 
C-50/00 P, Unión de Pequeños Agricultores v Council; Joined Cases C-174/98 P 
and C-189/98 P, Kingdom of the Netherlands and van der Wal v Commission; 
Case C-279/09, DEB; Case C-550/07 P, Akzo Nobel Chemicals and Akcros 
Chemicals v Commission; and Case C-64/16, Associação Sindical dos Juízes 
Portugueses.  
Specific national provisions 
Articles 61, 126, 146, 147 and 148 of the (Romanian Constitution).  
Articles 53, 54, 102, 138, 142, 143 and 342 of the  (Code of Criminal Procedure).  
Articles 3, 31, 34 and 36 of the  (Law on the organisation and functioning of the 
Constitutional Court) of 18 May 1992.  
Article 99(1)(ş) of  (Law No 303/2004 on the Statute of Judges and Public 
Prosecutors), under which failure to comply with decisions of the Curtea 
Constituțională is a disciplinary offence.  
Decision Nos 1519/2011, 2/2012, 33/2018 and 104/2018 of the Curtea 
Constituțională, the relevant content of which is set out in the request for a 
preliminary ruling in Case C-127/19.  
Decision No 51 of the Curtea Constituțională of 16 February 2016, which found to 
be unconstitutional the expression ‘or by other specialist State bodies’ in Article 
142(1) of the Code of Criminal Procedure, which provided that public prosecutors 
are to responsible for technical surveillance or may decide that those functions are 
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to be carried out by the investigating body or staff members of the specialist 
branch of the police or other specialist State bodies.  
Decision No 302 of the Curtea Constituțională of 4 May 2017, which found to be 
unconstitutional the legislative approach adopted in Article 281(1)(b) of the Code 
of Criminal Procedure, which does not include in the category of grounds for 
absolute invalidity infringements of the provisions relating to the jurisdiction 
ratione materiae and ratione personae of the body responsible for bringing 
criminal proceedings.  
Decision No 26 of the Curtea Constituțională of 16 January 2019, by which that 
court found there was a conflict of rules of a constitutional nature between certain 
State authorities and required courts and prosecutors to verify whether, in pending 
cases, there had been an infringement of the provisions relating to the jurisdiction 
ratione materiae and ratione personae of the body responsible for criminal 
proceedings. 
Decision No 137 of the Curtea Constituțională of 13 March 2019, which found to 
be constitutional the  (Law converting into law Government Emergency Order 
No 90/2018 on measures relating to the rules governing the operation of the 
Section for the Investigation of Offences committed within the Judiciary).  
Decisions of the  (High Court of Cassation and Justice) in Case No 3308/1/2015 
(judgment of 11 May 2018) and Case 350/1/2017 (order of 27 September 2018), 
from which it is apparent that the practice of that court is inconsistent as regards 
the effects of Decision No 51/2016 of the Curtea Constituțională.  
Brief outline of the facts and the main proceedings 
1 By way of summons issued on 22 August 2016, the Direcția Națională 
Anticorupție – Serviciul Teritorial Oradea (National Anti-Corruption Directorate – 
Oradea Regional Department) (‘the DNA’) brought proceedings against the 
defendants KI, LJ, JH and IG, who were charged with corruption offences.  
2 At the preliminary hearing (camera preliminară) stage, the accused KI and LJ 
requested the examining magistrate, inter alia, to rule out as unlawful evidence 
acquired from reports of recordings of wire taps and to exclude that evidence from 
the body of evidence relied on, in accordance with Decision No 51/2016 of the 
Curtea Constituțională, which was published after the reports in question had been 
drawn up.  
3 By order of 27 January 2017, the examining magistrate of the Tribunalul Bihor 
found that the documents produced in the criminal investigation were lawful and 
that the evidence had been lawfully acquired and decided that the case was to 
proceed to trial. In the grounds rejecting the request for the exclusion of the 
reports of recordings of wire taps, the examining magistrate stated that Decision 
No 51/2016 was not applicable to the case as it has legal effect only for the future.  
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4 The appeal lodged by the defendants against the order made by the examining 
magistrate of the Tribunalul Bihor was dismissed on 10 May 2017 by the 
examining magistrate of the Curtea de Apel Oradea (Court of Appeal, Oradea). In 
essence, that magistrate observed that Decision No 51/2016 is not applicable to 
technical surveillance measures taken in the course of the proceedings in question, 
as it was published in the Monitorul Oficial (Official Journal) after the evidence 
had been taken at the criminal investigation stage. Under Article 147(4) of the 
Constitution, decisions of the Curtea Constituțională are binding from the date on 
which they are published and have legal effect only for the future. The decision 
made at the stage of the preliminary hearing had thus become final and none of 
the means of evidence adduced in the course of the criminal proceedings was 
excluded.  
5 During the trial, on 9 May 2018 the defendant IG asked the court to verify 
whether the DNA had collaborated with the Serviciul Român de Informații 
(Romanian Intelligence Service) (‘the SRI’) during the criminal investigation 
stage on the basis of an agreement concluded between the Prosecutor’s Office 
attached to the Înalta Curte de Casație și Justiție and the SRI. On 3 October 2018, 
the defendant JH claimed that the execution of the surveillance warrants should be 
declared absolutely invalid and, as a consequence, that all reports of recordings 
deriving from technical surveillance activities be excluded from the evidence put 
forward, relying on, in addition to the earlier requests made at the preliminary 
investigation stage, Decision No 302/2017 of the Curtea Constituțională, which 
allowed a declaration of absolute invalidity at any stage of the criminal 
proceedings. Before the hearing held on 27 February 2019, the defendants KI and 
LJ also requested the court, in essence, to carry out the same verification 
concerning collaboration between the DNA and the SRI and, if it were discovered 
that there had been such collaboration, to exclude the intercepts carried out during 
the criminal investigation stage from the evidence relied on, by application of 
Decision Nos 51/2016 and 302/2017. Those defendants also relied on Decision 
No 26/2019 of the Curtea Constituțională, which found that there was a conflict of 
rules of a constitutional nature between the Prosecutor’s Office attached to the 
Înalta Curte de Casație și Justiție and the Romanian Parliament, on the one hand, 
and the Înalta Curte de Casație și Justiție and the other judicial bodies on the 
other, as a result of cooperation agreements concluded between the Prosecutor’s 
Office attached to the Înalta Curte de Casație și Justiție and the SRI.  
6 At the request of the court, the DNA disclosed that, in the proceedings under 
consideration, nine technical surveillance warrants had been executed with the 
technical support of the SRI and two further warrants with the technical support of 
the technical department of the DNA, without any involvement by the SRI. The 
latter were executed after Decision No 51/2016 was published. All the 
surveillance warrants were issued by the judecătorii de drepturi și libertați (judges 
with jurisdiction to decide on matters concerning the rights and freedoms of 
individuals) attached to the Curtea de Apel Oradea and the Tribunalul Bihor.  
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Succinct presentation of the reasons for the reference 
7 The referring court states, first of all, that before continuing with the proceedings, 
it is required to give a ruling, as a matter of priority, on the request for exclusion 
of the evidence submitted at the criminal investigation stage so as to ensure that 
the entire criminal proceedings are not vitiated as a result of the fact that evidence 
submitted and  admitted may be unlawful.  
8 According to that court, the legal issue raised by that request for the exclusion of 
evidence is not very complex, and may be easily resolved on the basis of the 
applicable legal principles and rules, even though the procedural rules were 
amended during the criminal proceedings, as a result, inter alia, of decisions of the 
Curtea Constituțională.  
9 However, the dilemma for the referring court relates to its role in the 
administration of justice when the effect of the pronouncements made by the 
Curtea Constituțională is the abstract, direct, mandatory application of its 
decisions, without judicial bodies having any possibility of carrying out an 
assessment in concreto in the light of the particular circumstances of the 
individual case. The referring court is of the view that, under the Constitution, the 
role of the Curtea Constituțională should be to determine whether laws comply 
with Basic Law, as opposed to that of interpreting and applying laws or, still less, 
that of introducing legal rules with retroactive effect, which may have the effect of 
destabilising criminal proceedings and making them unpredictable.  
10 Against that background, after clarifying that it not asking the Court of Justice of 
the European Union (‘the Court of Justice’) to rule on the application of national 
law, the nature or legal effects of certain cooperation agreements between 
institutions, the application ratione temporis of national legal provisions or their 
interpretation, the referring court provides a summary of the development of the 
relevant national law.  
11 Thus, beginning in 2016, the legislature initiated a process for amending the 
Criminal Code and the Code of Criminal Procedure, which was subject to analysis 
under (i) the Cooperation and Verification Mechanism (CVM), established by 
Decision 2006/928/EC of the European Commission, and (ii) the European 
Commission for democracy through law of the Council of Europe (the Venice 
Commission).  
12 However, a great many legal rules in the two codes were amended as a result of 
steps taken by the Curtea Constituțională, either through findings that some of 
those rules were unconstitutional or through the interpretation of other such rules, 
or indeed though findings that there was a conflict of rules between State 
authorities, which had a direct effect of their powers. Accordingly, some of the 
legislative proposals that were analysed by the European Commission and the 
Venice Commission were included in the body of national law as a result of 
decisions made by the Curtea Constituțională.  
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13 Thus, by Decisions No 51/2016, the Curtea Constituțională classified participation 
by the SRI in activities involving the execution of surveillance warrants as an 
investigative act and established that this constituted involvement in criminal 
proceedings that was unconstitutional. The referring court observes that a 
surveillance warrant provides the guarantees afforded by EU law, that is to say it 
must be issued by a judge and it is only the execution of the warrant that could be 
carried out with the technical support of the SRI, since, until Decision No 51/2016 
was published, the SRI was the only national institution which had the necessary 
infrastructure to ensure that technical surveillance warrants sought by public 
prosecutors and authorised by the courts were executed correctly.  
14 After Decision No 51/2016 was published, the article of the Code of Criminal 
Procedure which had been found to be unconstitutional was amended so that 
surveillance warrants can no longer be executed by the SRI.  
15 Following that decision, the question has arisen before the courts as to the legal 
effects of certain surveillance warrants which were executed by the SRI before 
that decision was published.  
16 Asked to rule on that issue, the Curtea Constituțională, by Decision No 302/2017, 
found to be unconstitutional the failure to include, in Article 142 of the Code of 
Criminal Procedure, among cases in which procedural documents may be 
excluded on grounds of absolute invalidity, those in which the body responsible 
for bringing criminal proceedings does not have jurisdiction ratione materiae and 
ratione personae. In particular, the effect of that decision is to introduce into the 
body of national law a new case of absolute invalidity. The involvement by the 
SRI in the execution of surveillance warrants is covered by that new case of 
absolute invalidity.  
17 Subsequently, by Decision No 26/2019, the Curtea Constituțională required 
judicial bodies to apply Decision Nos 51/2006 and 302/2017 jointly and in their 
entirety, with the result that means of evidence deriving from the execution of 
surveillance warrants are excluded, thus making it impossible for judicial bodies 
to carry out an analysis in concreto in the light of the particular circumstances of 
the individual case, taking into account all the procedural safeguards conferred on 
parties by national law, the case-law of the European Court of Human Rights and 
that of the Court of Justice. By that decision, in essence, the Curtea 
Constituțională established an irrebuttable presumption of breach of the 
procedural rights of any defendant in whose criminal proceedings it has been 
established that the SRI was involved at the investigation stage.  
18 The referring court indicates that, before Decision No 26/2019 was adopted, the 
practice of the Curte de Casație și Justiție was also inconsistent; in one case it 
found that the execution of technical surveillance measures by the SRI leads to the 
relative invalidity of the measures thus carried out, whereas in another case it 
found that such an irregularity leads to the absolute invalidity of such measures. 
However, that lack of consistency could be remedied by the adoption of an 
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instrument provided for by statute and by the constitution, namely the adoption of 
a decision by the Curte de Casație și Justiție to harmonise its practice without 
there being any need for involvement on the part of the Curtea Constituțională.  
19 According to the referring court, the combined effect of the three decisions of the 
Curtea Constituțională is that a judicial body which establishes as the only item of 
evidence that fact that the SRI was involved in the execution of surveillance 
warrants is to dismiss on grounds of absolute invalidity the means of evidence 
gathering used on the basis of rules regarded as complying with the Constitution 
at the time they were used and to exclude the evidence acquired by such means.  
20 The referring court observes that, in the present case, a request for such a ruling 
by the defendants has already been rejected definitively at the procedural stage of 
the preliminary hearing. Decision No 26/2019, which was handed down in the 
meantime, requires the court to reconsider that request, in breach of the principle 
of legal certainty, on the basis, inter alia, of the principle that criminal procedural 
law cannot be applied retroactively.  
21 As regards the effects of the decisions of the Curtea Constituțională, the referring 
court states that, although the Constitution establishes that such decisions have 
legal effect only for the future, the Curtea Constituțională’s case-law has 
established that its decisions are applicable ‘to pending cases’, thus obliging the 
courts to annul measures carried out on the basis of provisions found to be 
unconstitutional, even if such provisions enjoyed, at the time the measures were 
carried out, a presumption that they were in line with the Constitution.  
22 In the view of the referring court, the constitutional jurisdiction of judicial bodies 
has been limited by the intervention of the Curtea Constituțională, a politico-
judicial body which does not form part of the judicial authorities or the legislative 
authorities. As a consequence, the national court is prevented from exercising its 
constitutional and European role in the administration of justice, and becomes an 
abstract executor by means of which the Curtea Constituțională’s decisions are 
applied. The referring court is uncertain whether that constitutes an infringement 
of the obligations entered into by Romania at the time of its accession to the 
European Union.  
23 As no other national authority can determine whether the Curtea Constituțională 
has jurisdiction, the referring court is of the view that the only effective means of 
clarifying such an issue available to it is to make a reference to the Court of 
Justice.  
24 As regards the first question, concerning whether the CVM is binding, the 
referring court states that that mechanism was established by Decision 
No 2006/928/EC on the basis of Articles 37 and 38 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.  
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25 That question invokes, in that regard, judgment No 43800/12 of the European 
Court of Human Rights of 15 September 2015, Tsanova-Geceva v Bulgaria, 
which states that the reports submitted by the European Commission in 
accordance with the CVM are ‘relevant provisions of international law’. The 
referring court also states that, in turn, the Venice Commission frequently refers to 
reports drawn up in the context of that mechanism and considers it to be binding, 
which is apparent from the terms  used in the opinions adopted by  that institution 
(for example, Opinion No 924/2018 on amendments to laws relating to justice in 
Romania, or Opinion Nos 501/2008 and 563/2009 on the adoption of such laws in 
Bulgaria).  
26 With regard to the approach of the Curtea Constituțională concerning Decision 
2006/928/EC and the legal nature of the CVM, it varies between finding them 
‘binding’ and regarding them as ‘provisions which cannot constitute points of 
reference for determining whether measures are constitutional’.  
27 In those circumstances, if the Court of Justice were to decide that the CVM is 
binding, the referring court, also bearing in mind the other two questions, allowing 
the direct application of the judgment of the Court of Justice, would disapply 
national provisions, including those based on the decisions of the Curtea 
Constituțională, which are not in line with the recommendations of the CVM to 
the effect that no institution may be involved in the amendment of criminal laws.  
28 The referring court also asks the Court of Justice to clarify whether only measures 
expressly recommended in reports drawn up in accordance with that mechanism 
(or measures set out in the conclusions of such reports) are binding, or whether all 
the considerations contained in such reports are to be taken into consideration, in 
particular those regarding the measures adopted by national authorities which are 
at odds with the recommendations made by the Venice Commission and the 
Group of States Against Corruption (GRECO) of the Council of Europe.  
29 With regard to the second and third questions, the referring court asks the Court, 
in the light of the principle of the rule of law, referred to in Articles 2 and 4(3) 
TEU, and the principle of judicial independence, enshrined in the second 
subparagraph of Article 19(1) TEU, to establish whether the effects of the Curtea 
Constituțională’s decisions, where that court exceeds the limits of its jurisdiction, 
as defined by the Constitution, may be disregarded by the courts when exercising 
their constitutional and European role in the administration of justice and their 
role of ensuring that the obligations deriving from the Act of Accession of 
Romania to the European Union are fulfilled.  
30 As regards the principle of the rule of law, the referring court refers to the 
Communication from the European Commission to the European Parliament and 
the Council entitled ‘A new EU Framework to strengthen the Rule of Law’ 
(COM/2014/0158 final), and the judgments of the Court of Justice in Case 294/83, 
Les Verts v Parliament, paragraph 23; Case C-496/99 P, Commission v CAS 
Succhi di Frutta, paragraph 63; Joined Cases 212/80 to 217/80, Amministrazione 
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delle Finanze dello Stato v Salumi and Others, paragraph 10; Joined Cases 46/87 
and 227/88, Hoechst v Commission, paragraph 19; Case C-583/11 P, Inuit Tapiriit 
Kanatami and Others v Parliament and Council, paragraph 91; Case C-550/09 P, 
E and F, paragraph 44; Case C-50/00 P, Unión de Pequeños Agricultores v 
Council, paragraphs 38 and 39; Joined Cases C-174/98 P and C-189/98 P, 
Kingdom of the Netherlands and Van der Wal v Commission, paragraph 17; Case 
C-279/09 P, DEB, paragraph 58; and Case C-550/07 P, Akzo Nobel Chemicals and 
Akcros Chemicals v Commission, paragraph 54. 
31 With regard to the principle of the independence of the judiciary, the referring 
court refers to the judgment in Case C-64/16, Associação Sindacal dos Juízes 
Portugueses.  
32 The referring court adds that, if the ruling of the Court of Justice is implemented, 
it may be said that the Curtea Constituțională has exceeded its powers, also 
bearing in mind the individual opinions of some nine members of that court, 
published along with Decision Nos 51/2016 and 26/2019.  
33 Nevertheless, in order to resolve the case by applying or disregarding the effects 
of the Curtea Constituțională’s decisions, the referring court needs an answer from 
the Court of Justice to its questions, in the absence of which its freedom to make 
its own decisions will be undermined for a sufficiently serious reason that is 
unconnected with justice, namely the disciplinary measure that will be imposed on 
the judge who has made the reference for a preliminary ruling.  
34 Against that background, it should be noted that disciplinary proceedings have 
already been commenced in respect of the judge who has made the reference for a 
preliminary ruling at the request of one of the lawyers representing the defendants, 
on the ground, inter alia, that that judge extended the deadline for making a 
decision on the request to exclude evidence, as that judge intended to engage in 
dialogue with the Court of Justice and did not apply the decisions of the Curtea 
Constituțională immediately.  
35 Lastly, the referring court states that a preliminary ruling by the Court of Justice 
would not place the defendants in a more disadvantageous position, as the CVM 
and the principles in respect of which an interpretation is sought do not entail the 
imposition of further obligations on the defendants.  
36 The referring court requests that the matter be dealt with under the urgent 
procedure or, in the alternative, under the expedited procedure.