62021CC0216
OPINION OF ADVOCATE GENERAL
EMILIOU
delivered on 16 February 2023 (
1
)
Case C‑216/21
Asociaţia ‘Forumul Judecătorilor din România’,
YN
v
Consiliul Superior al Magistraturii
(Request for a preliminary ruling from the Curtea de Apel Ploieşti (Court of Appeal, Ploieşti, Romania))
(Reference for a preliminary ruling – Decision 2006/928/EC – Mechanism for cooperation and verification of progress in Romania in order to address specific benchmarks in the areas of judicial reform and the fight against corruption – Article 2 TEU – Rule of law – Second subparagraph of Article 19(1) TEU – Article 47 of the Charter of Fundamental Rights of the European Union – Independence of judges – National measure modifying the rules for the promotion of judges in lower courts)
I. Introduction
1.
‘Justice must not only be done, it must also be seen to be done’. That famous maxim is often relied upon when it comes to issues of judicial independence given that, at the heart of those issues, lies the confidence which the courts in a democratic society must inspire in the public. (
2
)
2.
In 2019, the Section for Judges of the Consiliul Superior al Magistraturii (Superior Council of Magistracy, Romania; ‘the SCM’) approved a national regulation reforming the promotion procedure applicable to judges of lower courts in Romania (‘the contested regulation’). (
3
) The applicants in the main proceedings, the Asociaţia ‘Forumul Judecătorilor din România’ (‘Forum of Romanian Judges’ Association; ‘the Romanian Judges’ Forum’) and YN, seek the partial annulment of that decision before the Curtea de Apel Ploieşti (Court of Appeal, Ploieşti, Romania), which is the referring court in the present case.
3.
They claim that the reform introduced by the contested regulation is problematic to the extent that, according to them, the promotion procedure applicable to judges of lower national courts is conducted by the presidents and members of the courts of appeal in which positions are to be filled and is based on subjective and discretionary criteria, rather than on an objective assessment of the candidates to that procedure, based only, as was the case prior to the adoption of the contested regulation, on their performance in a written exam.
4.
By the present request for a preliminary ruling, the referring court enquires as to the compatibility of such a reform with the principle of judicial independence which, in its view, derives from Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’) (fundamental right to a fair trial) and the second subparagraph of Article 19(1) TEU (right to effective judicial protection), as well as from the value of the rule of law within the meaning of Article 2 TEU.
5.
In short, for the reasons that I will outline below, I am of the view that legislative changes such as those brought about by the contested regulation do not breach the principle of judicial independence.
II. Legal framework
A.
European Union law
6.
Pursuant to the second subparagraph of Article 19(1) TEU, ‘Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law’.
7.
Article 47 of the Charter, entitled ‘Right to an effective remedy and to a fair trial’, states, in its second paragraph, the following:
‘Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. …’
B.
Romanian law
8.
Legea nr. 303/2004 privind statutul judecătorilor și procurorilor (Law No 303/2004 on the rules governing judges and public prosecutors), of 28 June 2004, republished in Monitorul Oficial al României, Partea I, No 826 of 13 September 2005 (‘Law No 303/2004’) was amended and supplemented by Legea nr. 242/2018 pentru modificarea și completarea Legii nr. 303/2004 privind statutul judecătorilor și procurorilor (Law No 242/2018 on the amendment and completion of Law No 303/2004 on the rules governing judges and public prosecutors), of 12 October 2018, Monitorul Oficial
al României, Partea I, No 868 of 15 October 2018 (‘Law No 242/2018’), which entered into force on 18 October 2018.
9.
Pursuant to Law No 242/2018, Articles 461 to 463 were inserted into Law No 303/2004. Those provisions state that judges and public prosecutors may be promoted exclusively by means of national competitions in which the work performance and conduct of the candidates over the three years prior to the promotion procedure are assessed. The specific rules governing the organisation and conduct of those promotion procedures are to be established by regulations adopted by, as the case may be, either the Section for Judges or the Section for Public Prosecutors of the SCM.
10.
The contested regulation, which contains rules on the organisation and conduct of competitions for the promotion of judges in office, was adopted in application of Articles 461 to 463 of Law No 303/2004. That regulation was approved by Decision No 1348 of 17 September 2019 of the Section for Judges of the SCM.
III. Facts, national proceedings and the questions referred for a preliminary ruling
11.
By their action, registered on 12 November 2019, the applicants in the main proceedings asked the Curtea de Apel Ploieşti (Court of Appeal, Ploieşti) to annul in part Decision No 1348 of 17 September 2019 of the Section for Judges of the SCM approving the contested regulation. They claim that that regulation infringes the principle of judicial independence and was adopted in disregard of the recommendations laid down in the various reports issued by the European Commission in accordance with the ‘Mechanism for Cooperation and Verification’ (‘the CVM’), which was established in the context of Romania’s accession to the European Union.
12.
First, they contend that the contested regulation places too much power in the hands of the presidents of the courts of appeal given that the selection board in charge of conducting the promotion procedure is composed of the president of the relevant court of appeal and other members of that court, whose appointment to the selection board is based on a proposal of the management body of the court of appeal (on which the president also sits). The members of the selection board are, in practice, also in charge of ruling on appeals against the judgments handed down by the candidates while sitting in lower courts, and of carrying out periodic evaluations of the candidates’ work performance as judges when and if they are promoted to the courts of appeal. (
4
)
13.
Second, they argue that the promotion procedure introduced by that regulation attaches too much weight to a subjective evaluation of the activities and conduct of the candidates over the three years prior to their participation in that procedure. As part of that assessment, the selection board reviews only a small number of decisions drafted by each candidate. Furthermore, the candidates’ success in the promotion procedure depends on that board’s subjective opinions of the candidates and on the views expressed by the candidates’ peers based on their conduct, rather than on their merits.
14.
In the view of the applicants in the main proceedings, the changes brought about by the contested regulation could give rise to attitudes of hierarchical subordination towards members of the courts of appeal given that candidates might be encouraged, in order to obtain a promotion, to be subservient towards the presidents and other members of the courts of appeal sitting on the selection boards.
15.
Harbouring doubts as to the compatibility with EU law of the reform introduced by the contested regulation, the Curtea de Apel Ploieşti (Court of Appeal, Ploieşti) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1)
Must the [CVM] be regarded as an act of an institution of the Union, within the meaning of Article 267 TFEU, and therefore amenable to interpretation by the Court of Justice of the European Union? Do the terms, nature and duration of the [CVM] fall within the scope of the Treaty concerning the accession of the Republic of Bulgaria and Romania to the European Union …? (
5
) Are the requirements laid down in the reports prepared in accordance with the [CVM] binding on [Romania]?
(2)
Can the principle of judicial independence, enshrined in the second subparagraph of Article 19(1) TEU and Article 47 of the Charter, as well as in the case-law of the Court, with reference to Article 2 TEU, be interpreted as also applying to procedures for the promotion of judges in office?
(3)
Is that principle infringed by the introduction of a system for promotion to a higher court which is based solely on a brief assessment of activities and conduct that is carried out by a board composed of the president of the court responsible for judicial review and of the judges of that court which, in addition to the periodic assessment of judges, separately carries out both assessments of judges for promotion purposes and the judicial review of judgments delivered by those judges?
(4)
Is the principle of judicial independence, enshrined in the second subparagraph of Article 19(1) TEU and Article 47 of the Charter, as well as in the case-law of the Court, with reference to Article 2 TEU, infringed if [Romania] undermines the foreseeability and legal certainty of EU law by accepting the [CVM] and the reports prepared in accordance with that mechanism and adhering to them for more than 10 years and then, with no forewarning, changing the procedure for the promotion of judges to executive positions, contrary to [CVM] recommendations?’
16.
The request for a preliminary ruling, dated 16 February 2021, was registered on 6 April 2021. The Romanian Judges’ Forum, the SCM, the Polish Government, as well as the Commission, have submitted written observations. No hearing has been held.
IV. Analysis
17.
The present case provides the Court with an opportunity to consider, for the first time, the application of its case-law on the independence of judges to promotion procedures which are applicable to them, as well as to examine whether a reform such as that introduced in Romania by the contested regulation is compatible with the requirements set out in that case-law.
18.
Before turning to the questions referred, I will briefly outline the contextual elements that are relevant to the present case.
A.
Background to the case and preliminary remarks
19.
During the negotiations leading to Romania’s accession to the European Union in 2007, concerns were expressed about serious shortcomings in the justice system and the fight against corruption in that State. (
6
) In order to alleviate those concerns, the Commission adopted, as it was entitled to do under Articles 37 and 38 of the Act concerning the conditions of accession of the Republic of Bulgaria and Romania, (
7
) a decision (
8
) in which it emphasised the importance of the rule of law as a precondition to any State joining the European Union (
9
) and recalled the need for all Member States to have an impartial and independent judicial system. (
10
) That decision established the CVM, a transitional measure to facilitate Romania’s continued efforts to reform its judiciary and step up the fight against corruption in the years following its accession to the European Union.
20.
In concrete terms, the CVM Decision provides for the adoption of periodic reports by the Commission. Those reports are designed periodically to assess Romania’s progress in reforming its justice system against a set of benchmarks (‘the CVM benchmarks’), (
11
) which give concrete expression to the specific commitments undertaken by that Member State and the requirements accepted by it at the conclusion of the accession negotiations, with regard, in particular, to safeguarding and improving judicial independence across its territory. (
12
)
21.
Within that context, particular attention has been paid, at both the national and EU levels, to whether recent reforms of the judicial system in Romania sufficiently protect the independence of national judges. Already in 2019, a succession of cases were brought before the Court concerning amendments that were adopted in Romania between 2018 and 2019, relating to the criminal and disciplinary proceedings to which members of the Romanian judiciary may be subject, as well as the regime of civil liability applicable to them.
22.
The Court considered the compatibility of those amendments with the principle of judicial independence in the judgment in Asociaţia ‘Forumul Judecătorilor din România’ and Others. (
13
) In that judgment, it also clarified that the CVM Decision and the reports drawn up by the Commission on the basis of that decision, constitute acts of an EU institution which are amenable to interpretation by the Court. Furthermore, it held that the CVM Decision is binding in its entirety on Romania, together with the CVM benchmarks, which are intended to ensure that that Member State complies with the value of respect for the rule of law, set out in Article 2 TEU. It also indicated that Romania is required to take appropriate measures for the purposes of meeting those benchmarks, taking due account of the reports drawn up by the Commission on the basis of the CVM Decision, and in particular the recommendations made in those reports. (
14
)
23.
The present request for a preliminary ruling was registered just a few weeks before the judgment in Asociaţia ‘Forumul Judecătorilor din România’ and Others was delivered. (
15
) However, I note that, by its first question, the referring court seeks clarification, once again, about the nature and legal effects of the CVM Decision and the reports adopted under it.
24.
Since the findings of the Court in that earlier judgment already provide an answer to that question, this Opinion will focus only on the remaining three questions referred, in accordance with the Court’s request.
25.
My analysis will be structured as follows. First, I will say a few words about the scope and relevance of the various provisions of EU law invoked by the referring court in its request for a preliminary ruling (B). I will also deal with the objections to the Court’s jurisdiction submitted by the SCM and the Polish Government (C). Then, I will outline the Court’s case-law on judicial independence (as it derives from the judgment in Asociaţia ‘Forumul Judecătorilor din România’ and Others and other cases) and explain why, in my view, sufficient guarantees of judicial independence must also be maintained in the context of promotion procedures for judges in office (Question 2) (D). In the light of that case-law, I will provide the reasons why I consider, subject to the verifications to be carried out by the referring court, that a reform such as that introduced by the contested regulation does not infringe the principle of judicial independence (Question 3) (E). Lastly, I will address the referring court’s concerns that such a reform might be contrary to the recommendations contained in some of the reports prepared by the Commission in accordance with the CVM (Question 4).
B.
The relevant provisions of EU law: Article 2 and Article 19(1) TEU and/or Article 47 of the Charter
26.
The questions referred have identified the second subparagraph of Article 19(1) TEU, Article 47 of the Charter and Article 2 TEU as the relevant EU law provisions against which the compatibility of the contested regulation must be assessed. The link between those various provisions is clearly apparent from the Court’s case-law. Indeed, the Court has held that the requirement that courts be independent forms part of the essence of both the right to effective judicial protection (second subparagraph of Article 19(1) TEU) and the fundamental right to a fair trial (second paragraph of Article 47 of the Charter), which is of cardinal importance as a guarantee, inter alia, that the values common to the Member States set out in Article 2 TEU, in particular respect for the rule of law, are safeguarded. (
16
) As such, it is clear that, within the EU legal order, there is a single principle of judicial independence and that the content of both Article 19(1) TEU and Article 47 of the Charter, in terms of judicial independence, is, in essence, the same. (
17
)
27.
Nevertheless, the existence of those distinct legal bases, and the different functions performed by Article 19 TEU and Article 47 of the Charter, means that the type of examination to be carried out by the Court in order to verify compliance with the principle of judicial independence may differ.
28.
In that regard, Advocate General Bobek has explained (
18
) that Article 19 TEU has a broad scope. It requires the Member States, inter alia, to ‘provide remedies sufficient to ensure effective legal protection’ and is, therefore, concerned mainly with the structural and systemic elements of the national legal frameworks, rather than elements pertaining to specific cases or the individual files. At the same time, the threshold for a breach of Article 19(1) TEU is rather high. The purpose of that provision is not to capture all possible issues that may arise with regard to the national judiciary, but only those which are of such seriousness and/or systemic nature that they threaten the proper functioning of the national judicial system and jeopardise the capacity of the Member State in question to provide sufficient remedies to individuals.
29.
Article 47 of the Charter, conversely, is aimed at protecting the subjective right of any party to proceedings to have an effective remedy and a fair trial before an ‘independent and impartial tribunal previously established by law’. The verification of the ‘independence’ of a court, in that context, calls for a detailed and case-specific assessment of the relevant circumstances, whilst issues linked to some structural or systemic feature of the judicial system of the Member States come into play only in so far as they may have had an impact on the individual proceedings. (
19
) Specific conditions must, however, be met before Article 47 of the Charter may be relied upon. Indeed, for the Charter to be applicable as a whole, the situation at hand must fall within the scope of EU law. (
20
) Furthermore, a potential issue resulting in a breach of Article 47 of the Charter can, in principle, be raised only with regard to an individual right guaranteed under EU law.
30.
This difference in scope and purpose between Article 19(1) TEU and Article 47 of the Charter, as well as in the conditions governing the applicability of those provisions, means that, overall, two types of cases may be brought before the Court concerning the compatibility of national provisions with the principle of judicial independence. (
21
) On the one hand, there are cases where an issue of judicial independence is brought by an individual, as an incidental issue in a situation where he or she alleges that his or her individual rights protected by EU law have been breached. In such cases, judicial independence will typically be examined through the lens of Article 47 of the Charter. On the other hand, there are cases concerning the compatibility ‘in the abstract’ of certain legislative instruments or structural elements adopted in the Member States with the requirements of EU law that are not linked to a particular instance of an infringement of the individual right to a fair trial. In that context, the Court will usually employ Article 19(1) TEU as its main or sole benchmark. (
22
)
31.
The present case is a little unusual. On the one hand, it appears from the case file that the applicants in the main proceedings are not alleging a breach of their individual rights protected by EU law but, rather, that the reform introduced by the contested regulation creates an issue of a systemic, transversal nature. They seek an assessment ‘in the abstract’ of the compatibility of that reform with the principle of judicial independence. On the other hand, it is difficult to consider that the main or sole benchmark for the purposes of that assessment is the second subparagraph of Article 19(1) TEU and, in that sense, that Article 47 of the Charter is of no relevance in the present case. As Advocate General Bobek stated in his Opinion in Asociaţia ‘Forumul Judecătorilor din România’ and Others, (
23
) national provisions such as those at issue in the main proceedings have the peculiarity that, as I explained in Section A above, they were adopted as a ‘national implementation’, by Romania, of the CVM Decision and of the Act concerning the conditions of accession of the Republic of Bulgaria and Romania. What is at stake, therefore, is the conduct of a Member State (Romania in casu) in a situation where it is implementing its obligations under EU law and, thus, acting within the scope of EU law and where the application of the Charter is, as a result, triggered.
32.
I share Advocate General Bobek’s view that that specific context opens the door to a second scenario, distinct to the one outlined above in point 29, in which the provisions of the Charter (including Article 47 thereof) – which have the same value as the provisions of the Treaties (
24
) – may be relied upon by the Court, not in relation to any breach of individual rights (as I stated, no such rights are alleged to be infringed here), but as an objective yardstick or benchmark in order to assess the compatibility of Romania’s implementation of EU law requirements.
33.
It follows, in my view, that the present case fits into the second category of cases described in point 30 above, in as much as it calls for an abstract review of the compatibility of the reform introduced by the contested regulation in the light of the principle of judicial independence, rather than an in concreto review in relation to an alleged breach of individual rights. However, given the specific context in which the present case takes place (with Romania being subject to the CVM and the Charter shadowing the national legislative choices it adopts as a result), I believe that both Article 47 of the Charter and the second subparagraph of Article 19(1) TEU, read in conjunction with Article 2 TEU, may be regarded as relevant benchmarks for the purposes of carrying out that review, rather than Article 19(1) TEU only. (
25
)
C.
The Court’s jurisdiction
34.
A number of objections have been put forward by the SCM and the Polish Government, arguing, in essence, that the questions referred to the Court are inadmissible because the latter has no jurisdiction to hear them. In the view of those parties, the organisation of justice – including matters such as procedures for the promotion of national judges – falls within the exclusive competence of the Member States, outside the scope of EU law. Thus, according to them, that area does not come within the jurisdiction of the Court of Justice.
35.
In my view, those arguments cannot be upheld and can easily be dismissed. As I indicated in point 31 above, the contested regulation was adopted by Romania while being subject to the CVM. It thus ought to be regarded as an ‘implementation’ of the obligations imposed on it by the CVM, by virtue of being an act adopted by an EU institution which is binding in its entirety on that Member State. (
26
) In those conditions, it would be wrong to consider that the present case falls outside the scope of EU law.
36.
Moreover, the objections put forward by the SCM and the Polish Government are certainly not new, and have in fact previously been raised, inter alia, by that government, in a number of other cases also concerning judicial independence. (
27
)
37.
In those prior cases, the Court dealt with those objections in a consistent manner, emphasising that, although the organisation of justice in the Member States remains within their competence, it is established that, when exercising that competence, the latter are required to comply with their obligations deriving from EU law, including those stemming from Article 2 and Article 19(1) TEU. (
28
)
38.
The subject of the present request for a preliminary ruling concerns, yet again, precisely the obligations of the Member States that flow from those provisions, together with Article 47 of the Charter and the CVM Decision, and whether the national provisions at issue in fact comply with those obligations. Moreover, the objections formulated by the SCM and the Polish Government relate, in essence, to the actual scope of the principle of judicial independence, as it is defined under the second subparagraph of Article 19(1) TEU and Article 47 of the Charter, read in conjunction with Article 2 TEU, and, therefore, to the interpretation of those provisions. As the Court has held, an interpretation of that nature clearly falls within its jurisdiction under Article 267 TFEU. (
29
)
D.
Judicial independence and promotion procedures for serving judges (Question 2)
39.
By its second question, the referring court asks the Court, in essence, to clarify whether the principle of judicial independence must be interpreted as also applying to procedures for the promotion of judges in office.
40.
I note that the SCM considers that the second question is inadmissible, on the ground that the answer to that question is so clear from the Court’s case-law that it leaves no room for any reasonable doubt. In that regard, I only wish to point out that, although such a circumstance, if it is proven, may prompt the Court to rule on a case by means of an order pursuant to Article 99 of the Rules of Procedure of the Court of Justice, that same circumstance cannot however prevent a national court from referring a question for a preliminary ruling or have the effect of rendering the question thus referred inadmissible. (
30
) Hence, in my view, there is no reason to conclude, as the SCM argues, that the second question is inadmissible.
41.
In order to answer that question, I will first outline the case-law of the Court concerning the independence of national judges in relation to the second subparagraph of Article 19(1) TEU and Article 47 of the Charter, read in conjunction with Article 2 TEU (1), before explaining why, in my view, the principle of independence of judges applies to the promotion procedures to which they are subject (2).
1. The case-law on judicial independence
42.
To begin with, I note that neither the second subparagraph of Article 19(1) TEU nor Article 47 of the Charter requires Member States to adopt any particular model with regard to the organisation of their judicial systems. Rather, those provisions seek to preclude national provisions relating to the organisation of justice that undermine, in the Member States concerned, the protection of the value of the rule of law under Article 2 TEU. (
31
) As such, the case-law developed by the Court in relation to the principle of judicial independence focuses on minimal requirements which national systems must comply with. In particular, those minimal requirements must not fall below the level of protection established in Article 6 of the European Convention on Human Rights (ECHR), as interpreted by the European Court of Human Rights. (
32
)
43.
Within that context, the Court has held that the concept of judicial independence has two aspects to it. The first aspect, which is external in nature, requires that the court or body concerned to exercise 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, thus being protected against external interventions or pressure liable to impair the independent judgment of its members and to influence their decisions. The second aspect, which is internal in nature, is linked to impartiality and seeks to ensure that an equal degree of remove is maintained from the parties to the proceedings and their respective interests with regard to the subject matter of those proceedings. That aspect requires objectivity and the absence of any interest in the outcome of the proceedings apart from the strict application of the rule of law. (
33
) Both aspects are, of course, closely linked. (
34
)
44.
In that regard, the Court has devised a single test which requires, in essence, that rules, particularly those concerning the composition of, or the appointment to, a court or a body exercising judicial functions, as well as the length of service and grounds for abstention, rejection and dismissal of its members, be such as to dispel any reasonable doubt in the minds of individuals as to the imperviousness of that body to external factors and its neutrality with respect to the interests before it. (
35
) Furthermore, it has stated that judges must be protected from potential temptations as regards not only any direct influence, in the form of instructions, but also types of influence which are more indirect and which are liable to have an effect on the decisions of the judges concerned. (
36
)
45.
The Court has confirmed, in successive judgments, that the principle of judicial independence is broad in scope. It applies to rules concerning the appointment of judges, (
37
) the conditions under which their careers progress and come to an end (including changes to their remuneration, (
38
) their removal from office, (
39
) the disciplinary regime (
40
) or criminal proceedings (
41
) to which they may be subject and the possibility for them to benefit from an extension to the period of judicial activity beyond normal retirement age). (
42
) Furthermore, that principle also applies to rules governing their secondment to a higher court by the Minister of Justice. Such rules must provide sufficient guarantees in order to prevent, in particular, any risk of that secondment being used as a means of exerting political control over the content of judicial decisions. (
43
)
2. Application to promotion procedures for serving judges
46.
In the light of the case-law that I have just recalled, I have no doubt, and the parties in the main proceedings do not dispute, that the principle of independence of judges applies to the promotion procedures to which they are subject. The examples listed in point 45 above reveal that that principle has already been applied by the Court to a broad range of aspects and components of the structural organisation of national courts and must be interpreted as having a wide scope. In particular, the Court has already found that sufficient guarantees of judicial independence must be maintained concerning the rules governing the appointment of judges, their secondment to higher courts and the conditions under which their careers progress and come to an end in general. Promotion procedures between different levels of courts concern precisely the manner in which judges of lower courts are selected in order to be appointed or seconded to higher courts. (
44
) Moreover, they form part of the conditions under which judges’ careers progress and come to an end. They should thus be required to comply with the principle of judicial independence. (
45
)
47.
In the light of those elements, I am of the view that Article 47 of the Charter and the second subparagraph of Article 19(1) TEU, read in conjunction with Article 2 TEU, must be interpreted as meaning that the principle of judicial independence also applies to procedures for the promotion of judges in office.
E.
Does a reform such as that introduced by Romania breach the principle of judicial independence? (Questions 3 and 4)
48.
By its third and fourth questions, the referring court enquires as to the compatibility of a reform such as that introduced in Romania by the contested regulation with the principle of judicial independence. It also wonders whether such a reform is contrary to the recommendations contained in reports prepared by the Commission in accordance with the CVM.
49.
Before turning to those questions, I will make three preliminary remarks.
50.
First, the SCM argues that the third and fourth questions are inadmissible because they are based on an erroneous description of the promotion procedure at issue in the main proceedings. In that regard, I recall that it is settled case-law that questions on the interpretation of EU law referred by a national court in a given factual and legislative context the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance. (
46
) I further note that the SCM’s arguments concerning the inadmissibility of the third and fourth questions actually relate to the substance of those questions and the answer which the Court will provide in that regard. It follows that the third and fourth questions are, in my view, admissible.
51.
Second, the fact that the present case calls, as I stated in Section B above, for an abstract compatibility assessment (
47
) of the reform introduced by the contested regulation does not mean that the mere potential for misuse of the procedure introduced by that reform will be sufficient to condemn that procedure in its entirety. As Advocate General Bobek has stated, (
48
) there must be some convincing argument brought before the Court as to how concretely and specifically a certain procedure, such as that at issue in the main proceedings, is liable to jeopardise judicial independence.
52.
More specifically, in line with the test that I have set out in point 44 above, the issues concretely brought up in that connection must give rise to reasonable doubt in the minds of individuals as to the independence and the impartiality of the judges concerned; otherwise there can be no structural problem of judicial independence. As the Court has pointed out, recalling the case-law of the European Court of Human Rights in that regard, in order to establish the element of ‘independence’, one of the relevant elements to be considered is the question of whether the body presents an ‘appearance of independence’, since the confidence which courts must inspire in the public in a democratic society is precisely what is at stake. The key element consists, in other words, in how the public might legitimately perceive the arrangements at issue. (
49
) Those arrangements must be considered as a whole, since certain aspects of the procedure or system in question that may appear problematic at first sight can be offset by other aspects. (
50
)
53.
Third, it is ultimately for the referring court to rule on whether or not a structural problem of judicial independence exists in the present case, having made the relevant findings in that regard. Indeed, it must be borne in mind that Article 267 TFEU does not empower the Court to apply rules of EU law to a particular case, but only to rule on the interpretation of the Treaties and of acts of EU institutions. According to settled case-law, the Court may, however, in the framework of the judicial cooperation provided for by Article 267 TFEU and on the basis of the material presented to it, provide the national court with an interpretation of EU law which may be useful to it in assessing the effects of one or other of its provisions. (
51
)
54.
Having made those clarifications, I note that the promotion procedure for judges serving in lower courts in Romania appears, as the referring court explains, to be structured in two steps. The first step, which is governed by Chapter II of the contested regulation, is called ‘on-the-spot promotion’. It is based on a written competition that is designed to test both the theoretical knowledge and the practical skills of the candidates. Successful candidates are then promoted to a higher professional grade but continue, in effect, to hold the same office. (
52
)
55.
The second step, which is called ‘effective promotion’, is governed by Chapter III of that regulation. It enables candidates who have already been promoted ‘on-the-spot’ and who possess the required professional grade to be actually assigned to a regional court or court of appeal. (
53
)
56.
The applicants in the main proceedings do not take issue with the first step of the promotion procedure, that is to say, ‘on-the-spot’ promotion. They seek only to challenge the modalities of the second step of that procedure (the ‘effective promotion’ procedure), during which the selection board must evaluate the candidates’ work and conduct over the last three years preceding their participation in that second step. (
54
) Two aspects of that procedure appear to be particularly problematic to them: (i) how the members of the selection board who participate in the ‘effective promotion’ procedure are designated and the composition of that board, and (ii) the criteria applied by the members of the selection board in order to decide which candidates shall be promoted. (
55
)
1. The first aspect: the designation and composition of the selection board
57.
The contested regulation provides that the evaluation of the candidates for ‘effective promotion’ is to be carried out by a selection board whose members are designated by the Section for Judges of the SCM. (
56
) That board is composed, at the level of each court of appeal, of the president of that court and four of its members, whose specialisation must correspond to that of the vacant positions. Those four members are chosen by the Section for Judges of the SCM on the basis of a proposal of the management body of the court of appeal (of which the president of that court is a member). (
57
)
58.
The applicants in the main proceedings claim that the contested regulation places too much power in the hands of the presidents of the courts of appeal. Furthermore, the reform creates, in their view, a risk that candidates for the ‘effective promotion’ procedure will behave in a subservient manner towards the presidents and members of the courts of appeal and feel indebted to them. In that regard, they point out that the persons sitting on the selection board are also in charge of reviewing on appeal the judgments handed down by the candidates while sitting in lower courts and are responsible for carrying out periodic evaluations of the candidates’ work performance as judges when and if they are promoted to the courts of appeal. They argue that judicial independence may be at risk not only in circumstances where judges are exposed to political pressures, but also where bias and nepotism are encouraged within the judiciary.
59.
In my view, and subject to the verifications of the referring court, the elements put forward by the applicants in the main proceedings cannot, in and of themselves, give rise to reasonable doubt in the minds of individuals as to the imperviousness of candidates for the ‘effective promotion’ procedure to external factors, in accordance with the test which I have set out in point 44 above.
60.
Two reasons prompt me to reach that conclusion.
61.
First, I note that, although the Court has, in its case-law, very much insisted upon the fact that the independence of the judiciary must, in particular, be ensured in relation to the legislature and the executive, (
58
) it has, thus far, not placed much emphasis on the fact that relationships of subordination or control between different courts (not involving the executive or legislature) could generate issues of judicial independence. (
59
)
62.
I believe that there is an obvious explanation for that difference in treatment. Cases concerning the independence of the judiciary from other branches of government (such as cases concerning the appointment of members of a judiciary body by a Minister) reach the Court’s docket more often because, as the Court has pointed out, (
60
) they strike at the heart of the doctrine of ‘separation of powers’. That makes them both easier to spot and to flag as potentially problematic. Cases regarding the influence exercised by certain members of the judiciary over their peers are more subtle. Yet, they may also give rise to issues of judicial independence. Indeed, it is certainly possible, and not at all difficult to imagine, that certain forms of judicial self-governance may generate a ‘system of dependent judges within an independent judiciary’, with undue influence being exercised by judicial officials, such as presidents of courts or officials of judicial self-administration bodies, within the judiciary. (
61
) Issues of judicial independence are, to that extent, not confined to situations implicating other branches of power or third parties, but may arise within the judicial system itself, wherever there is a risk that judges could be improperly influenced by their colleagues. (
62
) However, while the mere participation of the executive or the legislature in decisions affecting the judiciary is sufficient to raise a possible ‘red flag’ in view of the doctrine of separation of powers, the fact that certain judges exercise control over their peers does not, in and of itself (and unless the executive or legislature interfere in that regard), (
63
) point to the existence of a potential problem of judicial independence. (
64
)
63.
Having said that, I agree with the applicants in the main proceedings that, in any democratic system, it is never good (regardless of which branch of government is concerned) to entrust too much power to a single person or body. Too much power in the hands of too few means less accountability and more potential for arbitrary decision-making, bias, nepotism and abuse. (
65
) Here, it is true that the members of the selection board combine several roles that can affect the professional lives and careers of judges in lower courts. They are in charge of conducting the promotion procedure for judges of lower courts, of reviewing the judgments handed down by those judges on appeal and of carrying out periodic assessments of their work, if and when they are eventually promoted and appointed to the court of appeal (and, with regard to presidents of the courts of appeal, of making recommendations as to who will sit on the selection board).
64.
However, is that sufficient to create reasonable doubt in the minds of individuals as to the imperviousness of the judges of lower courts to external factors? In my view, something more is required. There must be an indication that such a concentration of power could actually cause external intervention or pressure liable to impair the independent judgment of judges of lower courts and to influence their decisions, for example by creating an incentive for them to favour one party over the other in the proceedings before them or to rule with a view to pleasing those who appoint or promote them. (
66
) It seems to me that the mere fact that, in order to boost their chances of being promoted, judges of lower courts are encouraged (without being swayed by other considerations, such as whether the judgments that they deliver will meet the approval of a particular member, such as the president of the court of appeal) to put in their best efforts to ensure that those judgments are of the highest possible quality, thereby minimising the risk that they be quashed on appeal, is a relatively harmless state of affairs in a system where lower courts are supposed, in the absence of cogent reasons to the contrary, (
67
) to follow the case-law of higher courts.
65.
Moreover, and contrary to the rather negative picture painted by the applicants in the main proceedings, one could argue that, because members of the courts of appeal of the Member States are themselves required, under EU law, to comply with the principle of judicial independence and be free from external influence or pressure, they are, in principle, in a good position to evaluate the candidates’ work and determine who among them deserve a promotion. The fact that they may be in charge of reviewing on appeal the judgments which the candidates deliver as judges while sitting in lower courts and are familiar with the functioning of courts and the drafting of judicial decisions only confirms, in my view, their aptitude, in a situation, such as that at issue in the main proceedings, where their own independence is not questioned, to perform that assessment.
66.
Second, the mere fact that decisions regarding the appointment of judges (or, as is the case here, their promotion) are entrusted to certain people or groups of people, and not to others, is, to my mind, not sufficient to establish a lack of sufficient guarantees of judicial independence. Someone must be responsible for those appointments, be it members of the executive or the legislature or other members of the judiciary or a mix of all three or even an entirely different body, and, oftentimes, it is not easy to think of an ideal candidate for that job. As I have just explained, members of the judiciary are, in principle, well placed to perform those functions. However, it seems that, even where judges are actually appointed or promoted by the executive, that is not, in and of itself, problematic from the perspective of judicial independence. (
68
)
67.
The Court endorsed that approach in, inter alia, the judgments in A.B. and Others (Appointment of judges to the Supreme Court – Actions) (
69
) and in Prokuratura Rejonowa w Mińsku Mazowieckim and Others. (
70
) That last judgment concerned the conditions under which the Minister for Justice may second a judge to a higher court and terminate that secondment. In that case, the Court emphasised, in essence, that what mattered, in order to avoid arbitrariness and the risk of manipulation, was not so much ‘who’ was in charge of taking the decisions, but that those decisions were taken on the basis of criteria which were known in advance and which contain an appropriate statement of reasons. (
71
) Of course, that does not mean that the ‘who’, responsible for the appointment or promotion of judges, is irrelevant: the more it appears that the ‘who’ is problematic from the perspective, for example, of the separation of powers, or due to the degree of subordination that exists between the body responsible for the appointment and the judges who benefit from it, the more substantive and procedural safeguards are, in my view, required to counterbalance the appearance of impropriety which may otherwise result. Thus, in that regard, it is those safeguards that are decisive.
68.
Those findings can, in my view, also be applied to the present case. In all cases, including those where the body in charge of deciding the appointment or promotion of national judges appears to be well-placed to perform those functions, what is decisive from the perspective of judicial independence is not so much the question of who conducts a promotion procedure such as that put in place by the contested regulation, but rather whether the criteria applied by the body in charge of conducting such a procedure are sufficiently clear, objective and verifiable, (
72
) and whether that body is obliged to state reasons for its decisions. Whether or not the decisions can be challenged in court proceedings is also relevant. (
73
)
69.
With that said, I will turn to examining whether, in a situation such as that at issue in the main proceedings, the criteria which the selection board must apply meet those requirements.
2. The second aspect: the criteria applied by the selection board
70.
In the present case, it is, as I have already emphasised, for the referring court to verify whether the criteria applied by the selection board as part of the ‘effective promotion’ procedure fulfil the requirements which I have set out in point 68 above or, on the contrary, are likely to confer ‘undue discretion’ on its members, such as to give rise to reasonable doubt in the minds of individuals as to the independence of the judges of lower courts concerned by that procedure. Undue discretion exists, in particular, when the modalities surrounding a particular procedure or the criteria applied when conducting that procedure are not prescribed by law (and, thus, are not verifiable), are vague or irrelevant or allow speculation about the influence of political or other forces (for example, when the criteria applied are not sufficiently objective). (
74
)
71.
Within that context, it seems to me that several elements from the case file deserve particular mention.
72.
First, the ‘effective promotion’ procedure is subject to two distinct and clearly laid out sets of criteria. Indeed, pursuant to the contested regulation, three criteria must be taken into account for the evaluation of the candidates’ work: (i) the ability to analyse and to summarise; coherence of self-expression; (ii) the clarity and logic of the reasoning; the analysis of the arguments of the parties’ submissions and defences; compliance with the case-law of the Înalta Curte de Casație şi Justiție (High Court of Cassation and Justice) and of the courts of appeal; and (iii) respect for reasonable deadlines for processing cases and writing decisions. (
75
) Furthermore, for the assessment of the candidates’ conduct, two criteria are relied upon: (i) the appropriateness of the attitude or conduct of the candidate towards litigants, lawyers, experts and interpreters during hearings and other professional activities, and his or her ability to handle situations arising in the courtroom, and (ii) the candidate’s ability to cooperate with other members of the bench and to communicate with other judges and staff. (
76
) Those criteria are clearly listed in the contested regulation and are, thus, verifiable. Furthermore, they are all relevant for the purposes of forming a view as to the candidates’ judicial activity and merit. (
77
)
73.
Second, as regards the question of whether such criteria are sufficiently objective, I note that, in order to check whether the first two criteria are fulfilled, the selection board uses a sample of 10 decisions handed down by the candidates over the preceding three years. (
78
) Those decisions are selected at random, using a computer software, and on the basis, again, of uniform criteria. (
79
) Moreover, in order to evaluate the candidates’ aptitudes against the various criteria relating to their conduct, the selection board looks at a sample of recordings of hearings presided over by each candidate. (
80
) The board also considers information in the candidates’ professional file, information available from the Inspecția Judiciarâ (Judicial Inspectorate, Romania) on possible disciplinary and ethical breaches for the relevant period, as well as any other verifiable information about the candidates. (
81
)
74.
Of course, it cannot be excluded, and is even inevitable, that some degree of subjectivity comes into play when the selection board interprets those various elements for the purposes of forming an opinion on the candidates’ work and conduct. However, the fact remains, in my view, that the sources of information and evidence upon which the members of the selection board must base their decision in relation to each candidate are rather numerous and diverse. That contributes to making the overall ‘effective promotion’ procedure appear to be based a priori on an objective, rather than discretionary, assessment.
75.
Third, I note that, as it appears from the case file, the contested regulation also provides for the selection board to take into account the reasoned opinions of the section in which each candidate sits at the time where the promotion procedure is conducted (
82
) and of the one corresponding to his or her specialisation in the hierarchically superior court, in order to reach a decision as to which candidates shall benefit froma promotion. (
83
) In that regard, the Court has suggested that the intervention of another body in the procedure leading to the adoption of such decisions may, in principle, contribute to making that procedure more objective. Of course, that is only the case in so far as that body is itself independent of the legislative and executive authorities and of the authority or body to which it is required to deliver its opinion, and in so far as such an opinion is delivered on the basis of criteria which are both objective and relevant and is properly reasoned, so as to be appropriate for the purposes of providing objective information upon which that authority or body can take its decision. (
84
) Naturally, it is for the referring court to verify whether that is the case.
76.
Finally, concerning the obligation for the selection board to state reasons and the possibility of challenging the decisions reached by that board in court proceedings, I note that, once the procedure is completed, the selection board must draft a reasoned report indicating the marks awarded for the five criteria mentioned above, as well as the overall mark obtained by the candidate. (
85
) Furthermore, if the candidate has any objections to that report, he or she is entitled to raise them during an interview with the selection board, which is held in all cases, as well as in writing. (
86
) The candidate also has 48 hours from the date of the publication of the results to challenge the mark obtained before the Section for Judges of the SCM, which will then consider whether a new evaluation is required and, as the case may be, itself carry out a new evaluation. (
87
)
77.
In my view, all of those elements, taken together, appear to confirm the absence of a real risk of ‘undue discretion’ giving rise to a reasonable doubt in the minds of individuals as to the independence of the judges concerned. It is, however, for the referring court to verify whether that is indeed the case. Subject to such verifications, I am inclined not to share the concerns expressed by the applicants in the main proceedings as to the lack of objectivity of the criteria applied by the selection board.
78.
As such, I consider that the principle of judicial independence, which is enshrined in Article 47 of the Charter and the second subparagraph of Article 19(1) TEU, read in conjunction with Article 2 TEU, is not infringed by the introduction of a procedure for the promotion of national judges to a higher court which is based on an assessment of their work and conduct by a board composed of the president and judges of such higher court, which, in addition to that assessment, review on appeal the decisions handed down by the judges of lower courts and carry out periodic evaluations of those judges once and if they are promoted to the relevant higher court. However, even where the members of that board are themselves independent, the criteria applied by them must be sufficiently objective, relevant and verifiable so as not to create reasonable doubt in the minds of individuals as to the imperviousness of the judges of lower courts concerned to external interventions or pressure liable to impair their independent judgment and to influence their decisions, and the board is obliged to state reasons for its decisions. Another relevant factor in that regard is the possibility for those judges to challenge decisions affecting their promotion before a court. (
88
)
3. The impact of the CVM Decision on the compatibility assessment
79.
It remains for me to examine whether the reform introduced by the contested regulation breaches any provision of the CVM Decision or fails to take account of the recommendations set out in the reports drawn up by the Commission in application thereof (Question 4).
80.
In that regard, I note that the CVM Decision does not impose any specific obligations on Romania other than the obligation to report its progress as to the implementation of the CVM benchmarks and to reform its judicial system in accordance with those benchmarks. Furthermore, as the Commission itself explains, none of the reports it produced in application of the CVM, whether before the adoption of the contested regulation or after, contain specific recommendations regarding procedures for the promotion of judges of lower courts in Romania.
81.
In fact, the Commission adopted its last report in application of the CVM on 22 November 2022. (
89
) In that report, it acknowledged that the modification of the promotion procedure brought about by the contested regulation had been criticised by some magistrates’ associations and civil society organisations, who argue that the meritocratic and competitive character of the procedure has been reduced. However, it did not point to any specific issue, nor did it formulate any recommendation concerning the promotion procedure for judges.
82.
Having said that, it seems to me that the fourth question raised by the referring court asks, as an underlying question, whether, precisely because the CVM reports published before the adoption of the contested regulation do not contain such recommendations, it should be understood that Romania was precluded from modifying its procedure for promotions. In other words, the silence of the reports on the issue should be read as an obligation for Romania not to change the status quo.
83.
I do not believe that such an approach would be the correct one. In my view, Romania remains free, within the context of the application of the CVM, to organise its judiciary system as it sees fit so long as it takes account of the recommendations set out in the Commission’s reports adopted in application of that mechanism and ensures that all the reforms that it adopts within that context comply with the CVM benchmarks and other EU law requirements, in general. Here, again, in line with what I stated in point 42 above, the purpose is not to dictate to Romania a specific model for the organisation of its judiciary, but rather to ensure that certain safeguards are put in place within the model that it wishes to adopt. In that regard, it is, thus, in my view, immaterial that the previous promotion procedure had remained unchanged for more than 10 years: Romania was permitted to change it. (
90
)
V. Conclusion
84.
In the light of the foregoing, I propose that the Court answer the questions referred for a preliminary ruling by the Curtea de Apel Ploieşti (Court of Appeal, Ploieşti, Romania) as follows:
(1)
Article 47 of the Charter on Fundamental Rights of the European Union and the second subparagraph of Article 19(1) TEU, read in conjunction with Article 2 TEU,
must be interpreted as meaning that the principle of judicial independence is applicable to procedures for the promotion of judges. That principle is not infringed by the introduction of a procedure for the promotion of national judges to a higher court which is based on an assessment of their work and conduct by a board composed of the president and judges of such higher court which, in addition to that assessment, review on appeal the decisions handed down by the judges of lower courts and carry out periodic evaluations of those judges once and if they are promoted to the relevant higher court. However, even where the members of that board are themselves independent, the criteria applied by them must be sufficiently objective, relevant and verifiable so as not to create reasonable doubt in the minds of individuals as to the imperviousness of the judges of lower courts concerned to external interventions or pressure liable to impair their independent judgment and to influence their decisions, and the board is obliged to state reasons for its decisions. Another relevant factor in that regard is the possibility for those judges to challenge decisions affecting their promotion before a court.
(2)
Article 47 of the Charter of Fundamental Rights and the second subparagraph of Article 19(1) TEU, read in conjunction with Article 2 TEU and 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,
must be interpreted as not precluding the introduction of judicial reforms in Romania in circumstances where such reforms comply with the requirements arising from EU law and where the sole reason for precluding the introduction of such reforms would be that the Commission has made no specific recommendation, in the reports drawn up by it, on the basis of Decision 2006/928, with regard to the specific subject matter of those reforms.
(
1
)	Original language: English.
(
2
)	See, inter alia, European Court of Human Rights (ECtHR), 15 July 2010, Gazeta-Ukraina-Tsentr v. Ukraine, CE:ECHR:2010:0715JUD001669504, § 32 and the case-law cited, and ECtHR, 3 May 2007, Bochan v. Ukraine, CE:ECHR:2007:0503JUD000757702, § 66. See also judgment of 19 November 2019, A. K. and Others (Independence of the Disciplinary Chamber of the Supreme Court) (C‑585/18, C‑624/18 and C‑625/18, EU:C:2019:982, ‘the judgment in A. K. and Others (Independence of the Disciplinary Chamber of the Supreme Court)’, paragraph 127 and the case-law cited).
(
3
)	Decision No 1348 of 17 September 2019 of the Section for Judges of the SCM approving the Regulation on the organisation and conduct of competitions for the promotion of judges.
(
4
)	For more details on the composition of the commissions in charge of carrying out the periodic evaluations of judges, see Article 39(3) of Law No 303/2004.
(
5
)	Signed by Romania in Luxembourg on 25 April 2005 (OJ 2005 L 157, p. 11).
(
6
)	Such concerns found their way into Annex IX to the Act concerning the conditions of accession of the Republic of Bulgaria and Romania (see, in particular, point 3 of that annex, which relates to the adoption and implementation of an Action Plan and Strategy for the reform of the Judiciary).
(
7
)	OJ 2005 L 157, p. 203.
(
8
)	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) (‘the CVM Decision’).
(
9
)	See recitals 2, 4 and 6 of the CVM Decision.
(
10
)	See recital 3 of the CVM Decision.
(
11
)	See the judgment of 18 May 2021, Asociaţia Forumul Judecătorilor din România and Others (C‑83/19, C‑127/19, C‑195/19, C‑291/19, C‑355/19 and C‑397/19, EU:C:2021:393, ‘the judgment in Asociaţia “Forumul Judecătorilor din România” and Others’, paragraph 175).
(
12
)	Ibid., paragraph 170.
(
13
)	Only one judgment was delivered for all those cases, but Advocate General Bobek drafted two Opinions (one in Statul Român – Ministerul Finanţelor Publice (C‑397/19, EU:C:2020:747), and the other in Asociaţia Forumul Judecătorilor din România and Others (C‑83/19, C‑127/19, C‑195/19, C‑291/19 and C‑355/19, EU:C:2020:746)).
(
14
)	See the judgment in Asociaţia ‘Forumul Judecătorilor din România’ and Others (points 1 and 2 of the operative part).
(
15
)	For the sake of completeness, I should mention that another series of cases were brought before the Court concerning the organisation of the judicial system in Romania and, more specifically, the question of whether the principle of judicial independence precludes the adoption of a decision by a national constitutional court which, in the exercise of its constitutional competences, rules on the lawfulness of the composition of judicial panels of the national supreme court (see judgment of 21 December 2021, Euro Box Promotion and Others (C‑357/19, C‑379/19, C‑547/19, C‑811/19 and C‑840/19, EU:C:2021:1034, ‘the judgment in Euro Box Promotion and Others’)).
(
16
)	See judgment of 6 October 2021, W.Ż. (Chamber of Extraordinary Control and Public Affairs of the Supreme Court – Appointment) (C‑487/19, EU:C:2021:798, paragraph 108 and the case-law cited).
(
17
)	See, inter alia, Opinions of Advocate General Bobek in Joined Cases Prokuratura Rejonowa w Mińsku Mazowieckim and Others (C‑748/19 to C‑754/19, EU:C:2021:403, point 162), and in Getin Noble Bank (C‑132/20, EU:C:2021:557, point 36). See also Opinions of Advocate General Hogan in Repubblika (C‑896/19, EU:C:2020:1055, points 45 and 46), and of Advocate General Tanchev in Joined Cases A. K. and Others (Independence of the Disciplinary Chamber of the Supreme Court) (C‑585/18, C‑624/18 and C‑625/18, EU:C:2019:551, point 85).
(
18
)	See Opinions of Advocate General Bobek in Asociaţia Forumul Judecătorilor din România and Others (C‑83/19, C‑127/19, C‑195/19, C‑291/19 and C‑355/19, EU:C:2020:746, points 183 to 225); in Joined Cases Prokuratura Rejonowa w Mińsku Mazowieckim and Others (C‑748/19 to C‑754/19, EU:C:2021:403, points 162 to 169); and in Getin Noble Bank (C‑132/20, EU:C:2021:557, points 36 to 41).
(
19
)	Ibid.
(
20
)	See Article 51(1) of the Charter.
(
21
)	See Opinion of Advocate General Bobek in Asociaţia Forumul Judecătorilor din România and Others (C‑83/19, C‑127/19, C‑195/19, C‑291/19 and C‑355/19, EU:C:2020:746, points 236 and 237).
(
22
)	For the sake of completeness, I add that, irrespective of which of those two provisions (Article 19 TEU or Article 47 of the Charter) the Court relies upon, it does not usually conduct a separate analysis in the light of Article 2 TEU (rule of law), although, of course, that provision permeates, and is relevant to, the Court’s assessment and is, in fact, often considered in conjunction with Article 19(1) TEU and/or Article 47 of the Charter. Indeed, both of those provisions can be regarded as giving concrete expression to Article 2 TEU since the rule of law, as one of the core values upon which the European Union is founded, is safeguarded through the guarantee of the right to effective judicial protection (Article 19 TEU) and the fundamental right to a fair trial (Article 47 of the Charter) (see, to that effect, judgments of 24 June 2019, Commission v Poland (Independence of the Supreme Court) (C‑619/18, EU:C:2019:531, ‘the judgment in Commission v Poland (Independence of the Supreme Court)’, paragraph 47 and the case-law cited), and of 2 March 2021, A.B. and Others (Appointment of judges to the Supreme Court – Actions) (C‑824/18, EU:C:2021:153, paragraph 108). See also Opinion of Advocate General Bobek in Asociaţia Forumul Judecătorilor din România and Others (C‑83/19, C‑127/19, C‑195/19, C‑291/19 and C‑355/19, EU:C:2020:746, point 225).
(
23
)	Opinion of Advocate General Bobek in Asociaţia Forumul Judecătorilor din România and Others (C‑83/19, C‑127/19, C‑195/19, C‑291/19 and C‑355/19, EU:C:2020:746, points 198 to 200).
(
24
)	See Article 6(1) TEU.
(
25
)	A similar solution was adopted by Advocate General Bobek in his Opinion in Asociaţia Forumul Judecătorilor din România and Others (C‑83/19, C‑127/19, C‑195/19, C‑291/19 and C‑355/19, EU:C:2020:746, point 226). See also Opinion of Advocate General Saugmandsgaard Øe in Associação Sindical dos Juízes Portugueses (C‑64/16, EU:C:2017:395, points 42 and 53).
(
26
)	See point 22 above.
(
27
)	See, inter alia, the judgment in Commission v Poland (Independence of the Supreme Court). See also judgments of 26 March 2020, Miasto Łowicz and Prokurator Generalny (C‑558/18 and C‑563/18, EU:C:2020:234), and of 2 March 2021, A.B. and Others (Appointment of judges to the Supreme Court – Actions) (C‑824/18, EU:C:2021:153).
(
28
)	See, to that effect, judgment of 2 March 2021, A.B. and Others (Appointment of judges to the Supreme Court – Actions) (C‑824/18, EU:C:2021:153, paragraph 68 and the case-law cited).
(
29
)	Ibid., paragraph 69.
(
30
)	See the judgment in Euro Box Promotion and Others (paragraph 138 and the case-law cited).
(
31
)	See, to that effect, judgment in Asociaţia ‘Forumul Judecătorilor din România’ and Others (paragraph 189). See also, in that regard, order of 7 November 2022, FX and Others (Effect of the decisions of a constitutional court III) (C‑859/19, C‑926/19 and C‑929/19, EU:C:2022:878, paragraph 109).
(
32
)	See the judgment in A. K. and Others (Independence of the Disciplinary Chamber of the Supreme Court) (paragraph 118).
(
33
)	See, inter alia, judgment of 5 November 2019, Commission v Poland (Independence of ordinary courts) (C‑192/18, EU:C:2019:924, ‘the judgment in Commission v Poland (Independence of ordinary courts)’, paragraphs 108 to 110 and the case-law cited).
(
34
)	See, inter alia, ECtHR, 3 May 2011, Sutyagin v. Russia, CE:ECHR:2011:0503JUD003002402, § 183.
(
35
)	See, inter alia, the judgment in Commission v Poland (Independence of the Supreme Court) (paragraph 74 and the case-law cited).
(
36
)	Ibid., paragraph 112. See also, inter alia, the judgment in Euro Box Promotion and Others (paragraphs 225 and 226 and the case-law cited).
(
37
)	See judgments of 2 March 2021, A.B. and Others (Appointment of judges to the Supreme Court – Actions) (C‑824/18, EU:C:2021:153, paragraph 121), and of 6 October 2021, W.Ż. (Chamber of Extraordinary Control and Public Affairs of the Supreme Court – Appointment) (C‑487/19, EU:C:2021:798).
(
38
)	See judgment of 27 February 2018, Associação Sindical dos Juízes Portugueses (C-64/16, EU:C:2018:117).
(
39
)	See, in particular, judgment of 19 September 2006, Wilson (C‑506/04, EU:C:2006:587, paragraph 51). See also the judgments in Commission v Poland (Independence of the Supreme Court) (paragraph 75), and in Commission v Poland (Independence of ordinary courts) (paragraphs 112 and 113).
(
40
)	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). See also the judgment in Asociaţia ‘Forumul Judecătorilor din România’ and Others (paragraph 199), in which the Court noted that it is essential that the body competent to conduct investigations and bring disciplinary proceedings against judges should act objectively and impartially in the performance of its duties and, to that end, be free from any external influence.
(
41
)	See the judgment in Asociaţia ‘Forumul Judecătorilor din România’ and Others (paragraph 213).
(
42
)	For the retirement of Supreme Court judges in Poland, see the judgment in Commission v Poland (Independence of the Supreme Court). For the retirement of the judges of the ordinary Polish courts, see judgment in Commission v Poland (Independence of ordinary courts).
(
43
)	See judgment of 16 November 2021, Prokuratura Rejonowa w Mińsku Mazowieckim and Others (C‑748/19 to C‑754/19, EU:C:2021:931, paragraph 73).
(
44
)	Treating promotion procedures differently from appointment decisions would, in my view, be simply absurd. Member States would be obliged to ensure the existence of sufficient guarantees of judicial independence with regard to initial appointments of judges to lower courts, but not as to how they are subsequently selected in order to sit in higher courts, without there being any valid basis for that discrepancy.
(
45
)	I note that the European Court of Human Rights has stated that procedures for the promotion of judges have an impact on the independence of the judiciary and, thereby, impliedly recognised that the principle of judicial independence is applicable to such procedures (see ECtHR, 15 September 2015, Tsanova-Gecheva v. Bulgaria, CE:ECHR:2015:0915JUD004380012, § 104). See also Recommendation CM/Rec(2010)12 adopted by the Committee of Ministers of the Council of Europe on 17 November 2010 and explanatory memorandum ‘Judges: independence, efficiency and responsibilities’ (available at: https://rm.coe.int/cmrec-2010-12-on-independence-efficiency-responsibilites-of-judges/16809f007d), point 49: ‘the independence of judges should be preserved not just when they are appointed but throughout their careers. The term “career” includes promotion …’.
(
46
)	See the judgment in Euro Box Promotion and Others (paragraph 139 and the case-law cited).
(
47
)	See points 31 and 33 above.
(
48
)	See the Opinion of Advocate General Bobek in Asociaţia Forumul Judecătorilor din România and Others (C‑83/19, C‑127/19, C‑195/19, C‑291/19 and C‑355/19, EU:C:2020:746, points 247 and 248).
(
49
)	See the judgment in A. K. and Others (Independence of the Disciplinary Chamber of the Supreme Court) (paragraph 127) referring, to that effect, to ECtHR, 6 November 2018, Ramos Nunes de Carvalho e Sá v. Portugal, CE:ECHR:2018:1106JUD005539113, § 144 and the case-law cited, and ECtHR, 21 June 2011, Fruni v. Slovakia, CE:ECHR:2011:0621JUD000801407, § 141.
(
50
)	I agree with the Commission that, what is important, for the purposes of the assessment of the compatibility of the reform introduced by the contested regulation with the principle of judicial independence, is the cumulative effect of the various components of that reform.
(
51
)	See the judgment in Asociaţia ‘Forumul Judecătorilor din România’ and Others (paragraph 201 and the case-law cited).
(
52
)	Before the reform, the promotion procedure for judges in office in Romania was based, as I understand it, exclusively on a series of written exams, designed to test the theoretical knowledge and practical skills of the candidates. The promotion procedure was supervised by judges of the Înalta Curte de Casație şi Justiție (High Court of Cassation and Justice, Romania), judges from the courts of appeal and instructors from the Institutul national al Magistraturii (National Institute of Magistrates, Romania).
(
53
)	Candidates wishing to participate in the ‘effective promotion’ procedure (the second step) must register with the SCM and indicate the court (regional court or court of appeal) and the relevant section within that court for which they would like to be considered. The Section for Judges of the SCM is in charge of determining the positions for which the competition for ‘effective promotion’ is to be held, the date when and place where the competition is to be organised, the modalities of the competition and the applicable schedule (see Article 30(1) and Article 32(1) of the contested regulation). The conditions which candidates must fulfil in order to participate in the procedure are listed in Article 462 of Law No 303/2004 (as amended by Law No 242/2018) and Article 31(1) of the contested regulation
(
54
)	Pursuant to Article 463 of Law No 303/2004. See also Article 36(6) and Article 38 of the contested regulation.
(
55
)	I understand from the ‘Report from the Commission to the European Parliament and the Council On Progress in Romania under the Cooperation and Verification Mechanism’ of 22 November 2022 (COM(2022) 664 final) that provisions related to competitive ‘on-the-spot promotions’ will be put on hold until December 2025, allowing only for effective promotions during this period. As of 2025, on-the-spot promotions are envisaged to be capped at 20% of the total number of vacant positions.
(
56
)	See Article 36(1), (2) and (5) of the contested regulation.
(
57
)	See Article 36(1) and (2) of the contested regulation. For appointments to the regional courts within the district of each court of appeal, a different selection board may be established (if necessary), which is composed of the president of the court of appeal and four members of the regional courts within the jurisdiction of that court possessing the corresponding specialisation (see Article 36(3) of that regulation).
(
58
)	See the judgment in Euro Box Promotion and Others (paragraph 228 and the case-law cited). See also judgment of 16 November 2021, Prokuratura Rejonowa w Mińsku Mazowieckim and Others (C‑748/19 to C‑754/19, EU:C:2021:931, paragraph 68).
(
59
)	The Court actually appears, in my view, to find the fact that judges may be elected or designated by their peers to perform certain roles or functions (for example, disciplinary functions) to be, overall, less problematic than when they are elected or designated to carry out those functions by other branches of government (see the judgments in A. K. and Others (Independence of the Disciplinary Chamber of the Supreme Court) (paragraph 143), and of 15 July 2021, Commission v Poland (Disciplinary regime for judges) (C‑791/19, EU:C:2021:596, paragraph 104)). See also Recommendation CM/Rec(2010)12 adopted by the Committee of Ministers of the Council of Europe on 17 November 2010 and explanatory memorandum ‘Judges: independence, efficiency and responsibilities’ (available at: https://rm.coe.int/cmrec-2010-12-on-independence-efficiency-responsibilites-of-judges/16809f007d), point 46: ‘the authority taking decisions on the selection and career of judges should be independent of the executive and legislative powers. With a view to guaranteeing its independence, at least half of the members of the authority should be judges chosen by their peers’.
(
60
)	See, inter alia, judgment of 16 November 2021, Prokuratura Rejonowa w Mińsku Mazowieckim and Others (C‑748/19 to C‑754/19, EU:C:2021:931, paragraph 68).
(
61
)	See Kosař, D., Perils of Judicial Self-Government in Transitional Societies, Cambridge University Press, Cambridge, 2016, p. 407. See also Opinion of Advocate General Bobek in Joined Cases Euro Box Promotion and Others (C‑357/19 and C‑547/19, EU:C:2021:170, point 152).
(
62
)	See ECtHR, 15 July 2010, Gazeta-Ukraina-Tsentr v. Ukraine, CE:ECHR:2010:0715JUD001669504, § 33. See also Recommendation CM/Rec(2010)12 adopted by the Committee of Ministers of the Council of Europe on 17 November 2010 and explanatory memorandum ‘Judges: independence, efficiency and responsibilities’ (available at: https://rm.coe.int/cmrec-2010-12-on-independence-efficiency-responsibilites-of-judges/16809f007d), point 30: ‘judicial independence is not just freedom from improper external influence, but also improper influence from within the judicial system, either by other judges or judicial authorities’.
(
63
)	See, for an example where there was such an interference, the judgment in A. K. and Others (Independence of the Disciplinary Chamber of the Supreme Court), which concerned the independence of the National Council of the Judiciary in Poland (‘the KRS’) from political authorities (paragraph 143). The Court stated that ‘whereas the 15 members of the KRS elected among members of the judiciary were previously elected by their peers, those judges [were] now elected by a branch of the legislature among candidates capable of being proposed inter alia by groups of 2000 citizens or 25 judges, such a reform leading to appointments bringing the number of members of the KRS directly originating from or elected by the political authorities to 23 of the 25 members of that body’.
(
64
)	See Kosař, D., Perils of Judicial Self-Government in Transitional Societies, Cambridge University Press, Cambridge, 2016, p. 408: ‘while most recent documents on judicial independence and judicial councils acknowledge that improper pressure on a judge can stem from within the judiciary, it has been generally accepted that internal pressure is somehow less dangerous, perhaps for historical reasons’.
(
65
)	In that regard, I note that, in its Opinion No 17 (2014) on the evaluation of judges’ work, the quality of justice and respect for judicial independence, the Consultative Council of European Judges (CCJE) noted that ‘when an individual evaluation has consequences for a judge’s promotion, salary and pension or may even lead to his or her removal from office, there is a risk that the evaluated judge will not decide cases according to his or her objective interpretation of the facts and the law, but in a way that may be thought to please the evaluators … the risk to judicial independence is not completely avoided even if the evaluation is undertaken by other judges’ (see point 6 of the opinion, online version available at: https://www.csm.it/documents/46647/0/Opinion+No.+17+%282014%29.pdf/f596c4a8-7019-47e1-9b35-14551977b471).
(
66
)	See, for example, Opinion of Advocate General Bobek in Joined Cases Prokuratura Rejonowa w Mińsku Mazowieckim and Others (C‑748/19 to C‑754/19, EU:C:2021:403). That case concerned a national legislation according to which the Minister of Justice/General Prosecutor (who is a member of the executive) could, on the basis of criteria that were not made public, second judges to higher courts for an indefinite period and, at any time, terminate that secondment at his own discretion. In his Opinion, Advocate General Bobek stated, in very clear terms that, because of such a legislation, judges may have an incentive to rule in favour of the prosecutor or, more generally, to the liking of the Minister for Justice/General Prosecutor and, therefore, to be biased. He explained that some judges may be tempted to believe that ruling in such a way would increase the possibility for them of being rewarded with a secondment to a higher court and, thus, possibly, with improved career prospects and a higher salary.
(
67
)	Such cogent reasons would include, in particular, a situation where judges of lower courts would be required to follow the case-law of higher courts even where that case-law is contrary to EU law and, in doing so, effectively lose their freedom to refer questions to the Court and to disregard that case-law.
(
68
)	Otherwise, the fact that, in a significant number of the Member States, judges are appointed by a head of state or government, that is to say the executive, would automatically mean that none of them is independent (see, in that regard, Opinion of Advocate General Bobek in Joined Cases Euro Box Promotion and Others (C‑357/19 and C‑547/19, EU:C:2021:170, point 217).
(
69
)	See judgment of 2 March 2021 (C‑824/18, EU:C:2021:153, paragraphs 122 and 123 and the case-law cited).
(
70
)	See judgment of 16 November 2021 (C‑748/19 to C‑754/19, EU:C:2021:931).
(
71
)	Ibid., paragraph 79.
(
72
)	The Court appears, in its case-law, to consider, in essence, that decisions affecting the conditions under which the careers of serving judges progress and end are likely to give rise to reasonable doubt in the minds of individuals as to the independence and the impartiality of the judges concerned when they are subject to criteria that are too vague, subjective or unverifiable (see, to that effect, the judgment in Commission v Poland (Independence of ordinary courts) (paragraph 122).
(
73
)	See, to that effect, the judgment in Commission v Poland (Independence of the Supreme Court) (paragraph 114). See also the judgment in Euro Box Promotion and Others (paragraph 240 and the case-law cited).
(
74
)	See, to that effect, ECtHR, 12 January 2016, Miracle Europe Kft. v. Hungary, CE:ECHR:2016:0112JUD005777413, § 58.
(
75
)	See Article 43(1) of the contested regulation.
(
76
)	See Article 45(1) of the contested regulation.
(
77
)	Provided, of course, the criterion relating to the respect for reasonable deadlines for processing cases and writing decisions does not affect the freedom of judges of lower courts to refer questions to the Court and to disregard the case-law of higher courts if that case-law is contrary to EU law (see footnote 68 above).
(
78
)	See Article 39(1) of the contested regulation. As for the third criterion – which relates to respect for deadlines – the assessment is based on a series of statistical data and other documents provided by the court in which the candidates sit. That information concerns both the candidates’ work (for example, how long it took them to deliver their decisions on average), as well as the activity of the court in which they sit.
(
79
)	See Article 39(6) of the contested regulation. The applicants in the main proceedings contend that the 10 decisions on which the selection board bases its assessment are not sufficiently representative of the candidates’ work. In that regard, I note, however, that Article 39(2) of the contested regulation requires that such decisions be ‘relevant’ and that Article 39(7) of that regulation specifically excludes certain types of decisions from the assessment (such as those resulting in discontinuance). Furthermore, they argue that those decisions are not communicated to the candidates and, thus, cannot be challenged by them. Subject to the verifications to be carried out by the referring court, it seems to me that such a challenge is, in fact, possible (see point 76 below). Pursuant to Article 39(12) of the contested regulation, the candidates also have the option of communicating decisions to the board.
(
80
)	See Article 44(1) and (3) of the contested regulation.
(
81
)	See Article 44(1) of the contested regulation.
(
82
)	See Article 44(1), (2) and (4) of the contested regulation.
(
83
)	See Article 42(1) of the contested regulation.
(
84
)	See, to that effect, the judgment in Commission v Poland (Independence of the Supreme Court) (paragraphs 115 and 116).
(
85
)	See Article 46 of the contested regulation.
(
86
)	See Article 47 of the contested regulation.
(
87
)	See Article 49 of the contested regulation.
(
88
)	I add that, contrary to what the applicants in the main proceedings argue, the Group of States against Corruption (GRECO) Ad hoc Report on Romania (Rule 34) of 23 March 2018 (available in English at the following address: https://rm.coe.int/ad-hoc-report-on-romania-rule-34-adopted-by-greco-at-its-79th-plenary-/16807b7717) does not suggest an interpretation different to the one which I propose that the Court should adopt in the present case and is, in fact, inconclusive. In that report, GRECO merely noted that, prior to the adoption of the contested regulation, ‘fears’ had been expressed that the two-step promotion procedure in Romania (which was introduced into Articles 461 to 463 of Law No 303/2004 by Law No 242/2018) ‘would leave more room for personal or political influences in career decisions, which could impact the neutrality and integrity of the justice system’ (point 31). In its Follow-Up Report of 21 June 2019 (available in English at the following address: https://rm.coe.int/follow-up-report-to-the-ad-hoc-report-on-romania-rule-34-adopted-by-gr/1680965687), GRECO then noted that ‘preparatory work’ as regards the appointment of judges and prosecutors to higher positions was ‘ongoing’ in Romania (that work eventually led to the adoption of the contested regulation). There is nothing in those two reports, which both predate the adoption of the contested regulation, which specifically concerns the changes brought about by that instrument.
(
89
)	Report from the Commission to the European Parliament and the Council On Progress in Romania under the Cooperation and Verification Mechanism of 22 November 2022 (COM(2022) 664 final), p. 5.
(
90
)	I note that the applicants in the main proceedings argue that the reform was introduced without proper consultation of the members of the judiciary and in a sudden manner. I agree that the manner in which a reform of the judicial system is adopted can, in some (limited) cases, indicate the existence of a systemic issue of judicial independence. However, that situation is, in my view, confined to rather extreme cases such as those where the reform is introduced by an emergency order or decree, and where it is clear that that manner of proceeding is designed to circumvent ordinary legislative procedures in a way that is incompatible with the requirements of the rule of law.