Opinion of the Advocate General — ECLI:EU:C:2021:170
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-547/19 -1 
Case C-547/19 
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: 
15 July 2019 
Referring court: 
Înalta Curte de Casație și Justiție (Romania) 
Date of the decision to refer: 
13 May 2019 
Applicants: 
CY 
Asociația ‘Forumul Judecătorilor din România’ 
Defendants: 
Inspecția Judiciară 
Consiliul Superior al Magistraturii 
Înalta Curte de Casație și Justiție 
  
Subject matter of the main proceedings 
Actions brought by the Asociația Forumul Judecătorilor din România and by CY 
against the order of 28 March 2018 made by the Secția pentru judecători în 
materie disciplinară (Chamber for judges hearing disciplinary matters) of the 
Consiliul Superior al Magistraturii (Superior Council of Magistracy) (‘the CSM’) 
dismissing the application to intervene submitted by the Asociația Forumul 
Judecătorilor din România in support of CY, and action brought by CY against the 
judicial decision of 2 April 2018 of that disciplinary tribunal, which upheld the 
disciplinary action brought against her by the Inspecția Judiciară (the Judicial 
Inspection) and imposed on her the disciplinary penalty of exclusion from the 
judiciary 
EN 
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Subject matter and legal basis of the request for a preliminary ruling 
An interpretation of Article 2 TEU, Article 19(1) TEU and Article 47 of the 
Charter of Fundamental Rights of the European Union is requested, pursuant to 
Article 267 TFEU 
Question referred 
Must Article 2 of the Treaty on European Union, Article 19(1) thereof and 
Article 47 of the Charter of Fundamental Rights of the European Union be 
interpreted as precluding the intervention of a constitutional court (a body which 
is not, under national law, a judicial institution) as regards the way in which a 
supreme court has interpreted and applied infra-constitutional legislation in the 
activity of establishing panels hearing cases? 
Provisions of EU law relied on 
Article 2 TEU and Article 19(1) TEU 
Article 47 of the Charter of Fundamental Rights of the European Union 
Provisions of national law relied on 
Constituția României (Romanian Constitution), Title V, headed ‘Curtea 
Constituțională’ (Constitutional Court) (Articles 142 to 147) and Section 1 of 
Chapter VI, entitled ‘Autoritatea judecătorească’ (Judiciary), of Title III, headed 
‘Autoritățile publice’ (Public authorities) (Articles 124 to 126) 
Legea nr. 317/2004 privind Consiliul Superior al Magistraturii (Law 
No 317/2004 on the Superior Council of Magistracy), republished in the 
Monitorul Oficial al României (Official Gazette of Romania), Part I, No 628 of 
1 September 2012, as subsequently amended and supplemented, Articles 1, 3 and 
37 to 39, which provide that the CSM is to be the guarantor of judicial 
independence and lay down the structure and functions of the CSM 
Legea nr. 303/2004 privind statutul judecătorilor și procurorilor (Law 
No 303/2004 on the rules governing judges and prosecutors), republished in the 
Monitorul Oficial al României, Part I, No 826 of 13 September 2005, as 
subsequently amended and supplemented, 
– Article 98, which provides that judges and prosecutors are to be liable 
to disciplinary action for deviations from their duties and acts which 
compromise the reputation of the judiciary; 
– Article 99(o), under which failure to comply with the provisions on the 
random allocation of cases constitutes a disciplinary offence; 
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– Article 100(e), which provides for exclusion from the judiciary as one 
of the disciplinary penalties which may be imposed on judges and 
prosecutors; 
– Article 101, which provides that the penalties laid down in Article 100 
are to be imposed by chambers of the CSM. 
Legea nr. 304/2004 privind organizarea judiciară (Law No 304/2004 on judicial 
organisation), republished in the Monitorul Oficial al României, Part I, No 827 of 
13 September 2005, as subsequently amended and supplemented, 
– Article 29, which sets out the functions of the Colegiul de conducere 
(the Governing Council) of the Înalta Curte de Casație și Justiție (High 
Court of Cassation and Justice) (‘the ICCJ’), which include approving 
the Regulamentul privind organizarea și funcționarea administrativă 
(Regulation on organisation and administrative functioning); 
– Articles 32 and 33, relating to five-judge panels, in their subsequent 
versions, analysed by the referring court in the section relating to the 
grounds for the reference. 
Regulamentul privind organizarea și funcționarea administrativă a ICCJ 
(Regulation on the organisation and administrative functioning of the ICCJ), 
republished in the Monitorul Oficial al României, Part I, No 1076 of 30 November 
2005, as subsequently amended and supplemented, Articles 28 and 29, relating to 
five-judge panels and the procedure for designating judges in that context 
Decision No 685 of the Constitutional Court of Romania of 7 November 2018, 
published in the Monitorul Oficial al României, Part I, No 1021 of 29 November 
2018 
Succinct presentation of the facts and the main proceedings 
1 By judicial decision of 2 April 2018, the Chamber for judges hearing disciplinary 
matters of the CSM upheld the disciplinary action brought by the Judicial 
Inspection against CY, a judge at the Curtea de Apel București (Court of Appeal, 
Bucharest), for having committing the disciplinary offence referred to in 
Article 99(o) of Law No 303/2004, and imposed on her the penalty of exclusion 
from the judiciary. 
2 The disciplinary tribunal ruled that CY — who, at a hearing on 22 January 2016, 
when she was designated to take part in a hearing before a panel, even though the 
judicial investigation in the case under consideration had been initiated by the 
court conducting the proceedings since the hearing of 30 October 2015 (the 
defendants having been heard and the taking of evidence having been authorised), 
granted a further hearing, thus unlawfully deliberating on the case, ordering that 
further evidence be taken, the legal classification be changed, and additional 
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statements be taken from defendants and witnesses, granting a hearing of oral 
argument and, finally, giving a judgment at first instance — had committed the 
disciplinary offence referred to in Article 99(o) of Law No 303/2004, in that there 
had been serious infringements of the provisions relating to the random allocation 
of cases. 
3 By order made on 28 March 2018, the disciplinary tribunal dismissed as 
inadmissible the application to intervene in support of CY submitted by the 
Asociația Forumul Judecătorilor din România on the grounds that no vested and 
current interest in bringing proceedings had been demonstrated. 
4 The Asociația Forumul Judecătorilor din România and CY brought actions against 
the order of 28 March 2018, and CY brought an action against the judicial 
decision of 2 April 2018; those cases were joined by the referring court, the ICCJ. 
5 Decision No 685 of the Constitutional Court of 7 November 2018 (‘Decision 
No 685/2018’) upheld the action brought by the Prime Minister of the 
Government of Romania and established the existence of a judicial conflict of a 
constitutional nature between the Parliament, on the one hand, and the ICCJ, on 
the other, created by the decisions of the Governing Council of the ICCJ, starting 
with Decision No 3/2014, according to which only four of the five members of the 
five-judge panels were designated by drawing lots, contrary to Article 32 of Law 
No 304/2004, as amended and supplemented by Legea nr. 255/2013 (Law 
No 255/2013). It was ordered that the ICCJ designate, as soon as possible, all the 
members of the five-judge panels by drawing lots. 
6 Following that decision, on 9 November 2018 all the members of the five-judge 
panels for 2018 were designated by drawing lots, pursuant to Decision No 137 of 
the Governing Council of the ICCJ of 8 November 2018. 
7 Following the publication, on 29 November 2018, of Decision No 685/2018, rules 
for ‘ensuring compliance with the requirements laid down in [Decision 
No 685/2018]’ were adopted by judicial decision No 1367 of the Chamber for 
judges of the CSM of 5 December 2018. 
8 In order to comply with judicial decision No 1367 of the Chamber for judges of 
the CSM of 5 December 2018, the panel seised of the case, in the composition 
established by Decision No 137 of the Governing Council of the ICCJ of 
8 November 2018, ordered, by order of 10 December 2018, that the case be 
removed from the register with a view to its random allocation to a panel, whose 
composition will be established, by drawing lots, in accordance with the rules 
approved by the CSM by means of that judicial decision. 
9 On 13 December 2018 the drawing of lots for the designation of the members of 
the five-judge panels for 2018 took place at the seat of the ICCJ, pursuant to 
judicial decision No 1367 of the Chamber for judges of the CSM of 5 December 
2018 and the file of the present case was allocated randomly to Five-Judge 
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Panel — Civil 3 — 2018 (the panel making the reference for a preliminary 
ruling). 
10 In the joined cases, CY raised the following objections: the composition of the 
panels hearing cases was unlawful (considering that the file should have been 
remitted to a panel established for 2019); judicial decisions No 1367 of 
5 December 2018 and No 1535 of 19 December 2018 of the Chamber for judges 
of the CSM were unlawful, as were Decisions No 2/2019, No 157/2018 and 
No 153/2018 of the Governing Council of the ICCJ; the representation of the 
Judicial Inspection was unlawful; and the provisions of Article 32 of Law 
No 304/2004 and Ordonanța Guvernului nr. 77/2018 (Government Order 
No 77/2018) were unconstitutional. 
11 On 11 February 2019 CY added to the case file a request for a reference to be 
made to the Court of Justice for a preliminary ruling. 
The essential arguments of the parties to the main proceedings 
12 CY claims that the Constitutional Court exceeded its jurisdiction, infringing her 
right to a fair trial. If the Constitutional Court had not intervened in the activity of 
the supreme court, the principle of the continuity of the panel hearing the case 
would not have been infringed and the case would have been correctly assigned to 
one of the five-judge panels established, pursuant to Article 32 of Law 
No 304/2004, in 2019. 
13 Furthermore, by Legea nr. 207/2018 (Law No 207/2018) amending Law 
No 304/2004, the national legislature established that panels seised of cases 
concerning the accountability of magistrates are to consist exclusively of judges 
specialised in that field. The participation of judges who have not acquired 
specialisation in the field of the accountability of magistrates constitutes an 
infringement of law, with the result that a tribunal is established which does not 
comply with the safeguards laid down by law. 
14 Through a series of administrative decisions of the CSM it was decided, on the 
one hand, to establish three five-judge panels and, on the other, to continue the 
existence, including during 2019, of the panels determined by drawing lots on 
13 December 2018, even though national law provides that, for the current year, 
the composition of five-judge panels will be established by drawing lots at the 
beginning of the year. The continuation of the activity of a panel hearing cases 
beyond the time limit laid down by law constitutes an infringement of Article 6(1) 
of the [European] Convention [on Human Rights] and, consequently, Article 47 of 
the Charter, with repercussions on Article 2 TEU. 
15 By imposing certain conduct on the supreme court, the CSM, which is an 
administrative body, infringed the principles of the rule of law by compromising 
the independence and impartiality in the enforcement of justice which must 
always be observed by a court provided for by law. 
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Succinct presentation of the reasons for the reference 
16 In the introduction to the grounds for the reference, the referring court sets out the 
development of the provisions of law relating to five-judge panels. 
17 Five-judge panels were introduced for the first time in national legislation by 
Legea nr. 202/2010 (Law No 202/2010), which amended Articles 32 and 33 of 
Law No 304/2004. These panels hearing criminal and non-criminal matters were 
organised separately from the chambers of the ICCJ, performing the role of a 
review tribunal within the supreme court. The members of the panel were 
designated by the President of the ICCJ at the beginning of each year and the 
panel was chaired by the President of the ICCJ, the Vice-President or a president 
of a chamber. 
18 By Decision No 24 of 25 November 2010, the Governing Council of the ICCJ laid 
down, by adapting the Regulation on the organisation and administrative 
functioning of the ICCJ, a rule under which the designation of the other four 
members of the five-judge panel, with the exception of the chair, is not to be 
carried out on a discretionary basis, but randomly by drawing lots. 
19 Law No 255/2013 amended Article 32 of Law No 304/2004 on judicial 
organisation, establishing in law the rule on drawing lots for members of five-
judge panels. 
20 In the context of obvious discrepancies between Article 32(5) of Law 
No 304/2004, under which ‘the five-judge panel shall be chaired by the President 
or by the Vice-President [of the ICCJ], where he forms part of the panel, under 
paragraph 4, by the president of the Criminal Chamber or by the eldest member, 
as appropriate’, and Article 33(1) thereof, which provided that ‘the President [of 
the ICCJ] or, in his absence, the Vice-President, shall chair the Combined 
Chambers, the five-judge panel, and any panel within the chambers, where he 
participates in the proceedings’, the Governing Council of the ICCJ adopted 
Decision No 3 of 28 January 2014 amending and supplementing the Regulation on 
the organisation and administrative functioning of the ICCJ which established that 
five-judge panels are to be chaired, as appropriate, by the President, the Vice-
Presidents, the president of the Criminal Chamber or the eldest member, and the 
drawing of lots, in the case of those panels, is to relate only to the other four 
members. 
21 Law No 207/2018, which amended Article 32 of Law No 304/2004, maintained 
the rule under which the Governing Council of the ICCJ approves the number and 
composition of five-judge panels at the beginning of each year and removed the 
previous imprecisions by providing that the drawing of lots concerns all the 
members of a five-judge panel. 
22 Following this legislative amendment, on 4 September 2018 the Governing 
Council of the ICCJ adopted Decision No 89/2018, stating that ‘analysing the 
provisions of Article 32 of Law No 304/2004 […], regarding the activity of five-
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judge panels, it finds, by a majority, that the provisions of that new law constitute 
rules on organisation which are aimed at court formations with specific 
regulations, established “at the beginning of each year” and, in the absence of 
transitional rules, become applicable as from 1 January 2019’. 
23 This is the context in which the Constitutional Court, which was seised by the 
Prime Minister of the Government of Romania on 2 October 2018, adopted 
Decision No 685/2018, in which it ruled, inter alia, that ‘in the light of the 
unlawful conduct, in constitutional terms, of the [ICCJ], through the Governing 
Council, which is not such as to offer guarantees as to the proper restoration of 
the legal framework for the functioning of five-judge panels, it is incumbent on the 
Chamber for judges of the [CSM], on the basis of its constitutional and legal 
prerogatives […] to identify the solutions, on the level of principle, as regards the 
statutory composition of panels hearing cases and to ensure the implementation of 
those solutions’. 
24 Following that decision, the CSM adopted judicial decisions No 1367 of 
5 December 2018 and No 1535 of 19 December 2018. Pursuant to those judicial 
decisions, the ICCJ drew lots for new panels hearing cases for 2018, and their 
activity also continued in 2019 even though no measure had been ordered by the 
end of 2018 in respect of the cases assigned, since the case-law of the supreme 
court in existence until then, according to which, where a panel hearing cases, in 
the composition established for a year, has not ordered any measure in a particular 
case by the end of the year, the composition of that panel is to be changed and the 
case is to be allocated to the judges chosen by the drawing of lots for the new 
calendar year, had been abandoned. 
25 The referring court states that in the present case various problems arise as regards 
the compatibility of the Constitutional Court’s intervention with Articles 2 and 19 
TEU and Article 47 of the Charter. 
26 A first problem is the status of the Constitutional Court and its position in the 
State authorities’ architecture. The Constitutional Court is not a judicial institution 
since it does not form part of the judiciary and the political factor plays an 
important role in the appointment of its members since Article 142(3) of the 
Romanian Constitution provides that, of the nine members of the Constitutional 
Court, ‘three judges shall be appointed by the Chamber of Deputies, three by the 
Senate and three by the President of Romania’. Therefore, within the body 
required to rule on the existence or otherwise of a constitutional conflict between 
the judiciary and the legislature, six members were appointed by the legislature, 
whilst the judiciary made no contribution to the establishment of the authority that 
resolved the conflict. 
27 A second problem raised by the procedure for establishing whether or not there is 
a judicial conflict of a constitutional nature with the legislature relates to the 
persons who may initiate that procedure. Under Article 146(d) of the Romanian 
Constitution, the procedure is to be initiated only at the request of the President of 
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Romania, one of the presidents of the two houses, the Prime Minister or the 
President of the CSM. 
28 Given the extremely fragile distinction between the unlawfulness of an act and a 
conflict of a constitutional nature with the legislature, the premises exist for 
creating, in relation to a limited category of legal entities, administrative actions or 
legal remedies which parallel those provided for within judicial institutions. 
29 It could be argued that, in the present case, there are public authorities pursuing a 
public interest but, on the other hand, it should be noted that, with the exception of 
the President of the CSM, the other persons involved are bodies of a political 
nature. By combining this aspect with the political involvement in the designation 
of members of the Constitutional Court, the premises are created for exploiting 
this loophole to intervene in justice for political purposes or in the interests of 
politically influential persons. The referring court points out, in this context, that 
the Prime Minister’s intervention, implemented by Decision No 685/2018, came 
at a time when the president of the Chamber of Deputies, who was also the 
president of the ruling party, was the defendant in criminal proceedings registered 
with a five-judge panel established to hear criminal cases. 
30 A third problem concerns the distinction between the ‘unlawfulness’ of an act or 
intervention and a ‘conflict of a constitutional nature’ between the judiciary and 
the legislature. According to the case-law of the Constitutional Court, a ‘“judicial 
conflict of a constitutional nature”, which is not defined by the Constitution or 
legislation, between the judiciary and the legislature’ presupposes specific acts or 
actions by which one or more authorities assume powers, functions or 
competences which, under the Constitution, belong to other public authorities, or 
the omission of public authorities consisting in their declining jurisdiction or 
refusing to carry out certain acts which fall within their obligations. 
31 The referring court considers the way in which these general considerations apply 
to a judicial conflict of a constitutional nature with the legislature to be 
problematic. As part of their judicial or administrative activities, judicial 
institutions are constantly called upon to interpret and apply the legislative acts 
adopted by the legislature. However, the lack of consistency between the 
interpretation provided by the courts and the will of the legislature forms the 
substance of the concept of ‘unlawfulness’. A judicial decision contrary to the law 
is an unlawful decision and an administrative act contrary to the law is an 
unlawful act, and not the expression of a ‘judicial conflict of a constitutional 
nature with the legislature’. The relief available in such cases is the use of legal 
remedies or, where appropriate, the bringing of an administrative action. 
32 The Constitutional Court criticises the ICCJ for the fact that, both at the time of 
the adoption of Decision No 3/2014 and at the time of the adoption of Decision 
No 89/2018, the Governing Council assumed interpretative functions relating to 
judicial activity — functions belonging to panels hearing cases — and also that 
the interpretation of the law provided by the Governing Council was contrary to 
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the will of the legislature. In the view of the Constitutional Court, that action 
constitutes an abuse by the supreme court. 
33 The referring court notes that, on the one hand, it is difficult to understand the 
assessment that the Governing Council assumed interpretative functions belonging 
to panels hearing cases. It is evident that, given that the Governing Council was, 
by law, involved in establishing five-judge panels, that task could not be carried 
out except on the basis of an interpretation of the relevant provisions of law. It 
was not possible to leave the interpretation of Article 32 of Law No 304/2004 to 
the discretion of panels hearing cases since, chronologically, it was necessary first 
to establish those panels, a task which fell to the Governing Council. 
34 The Governing Council did not have, objectively, a choice as to whether or not to 
interpret the provisions of Article 32 of Law No 304/2004, but merely a choice 
between the various interpretations of that legislative text. 
35 As regards the interpretation for which the Governing Council opted with respect 
to Decision No 3/2014, it is not possible to deny the imprecision of Article 32(5), 
in the version laid down in Law No 255/2013, a literal interpretation of which was 
not tenable since it would have created a different system for the situation of the 
President and Vice-President of the ICCJ, on the one hand, and the situation of the 
president of the Criminal Chamber and the eldest member, on the other. The fact 
that, in a context where the rule was not clear and required harmonisation of 
contradictory provisions, the supreme court, through the Governing Council, 
opted for a conservative interpretation, which favoured an interpretation of the law 
closer to the pre-existing legislative solution, cannot constitute a deliberate act of 
denying the will of the legislature. 
36 Moreover, the Constitutional Court merely countered the interpretation given by 
the supreme court with its solution of harmonising the unclear provisions 
contained in the law, by extending also to the president of the Criminal Chamber 
the clarification which the legislature made only in respect of the President and 
Vice-President of the ICCJ. 
37 After stating that the interpretation of Article 32 of Law No 304/2004, in the 
version in force after the adoption of Law No 207/2018, accepted by the 
Constitutional Court is not self-evident, the referring court emphasises that there is 
nothing which would give rise to the idea of a ‘position of force’ of the supreme 
court and ‘systematic opposition’ to the will of the legislature. The mere fact that, 
in a context in which the legislature has not intervened in 4 years to clarify its 
will, the supreme court has acted in line with the initial interpretation cannot be 
confused with a systematic denial of the will of the legislature. 
38 The referring court makes these clarifications since the Constitutional Court based 
the distinction between unlawfulness and a conflict of a constitutional nature with 
the legislature on the assumption that there had been a deliberate and systematic 
breach of the will of the legislature. The Constitutional Court refers to ‘a 
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systematic positioning of the [ICCJ] on basic assumptions contrary to the 
principle of the separation of the powers of the State’. 
39 What is sought from the Court of Justice by means of the reference for a 
preliminary ruling is, first, an interpretation of the concept of the ‘rule of law’ 
underlying Article 2 TEU, with regard to Article 19 TEU and Article 47 of the 
Charter, by which it is ascertained whether, in a situation such as that in the 
present case, the activity of the supreme court of a Member State may be reviewed 
and sanctioned by means of the intervention of a body such as the Constitutional 
Court of Romania. 
40 Furthermore, given that the Constitutional Court, although it is not part of the 
system of judicial institutions and does not have judicial functions, ordered the 
transfer of competences which, under the law, belonged to the ICCJ, from that 
judicial institution to the CSM, the referring court states that an arbitrary 
intervention by which a review of the lawfulness of the ICCJ’s activity is carried 
out — a review which replaces lawful judicial procedures (administrative actions, 
procedural objections raised in legal actions, and so on) — may have a negative 
impact not only on judicial independence, but also on the foundations of the rule 
of law, depending on the meaning which the Court of Justice of the European 
Union attaches to that concept underlying Article 2 TEU.