Provisional text
OPINION OF ADVOCATE GENERAL
NORKUS
delivered on 5 February 2026 (1)
Case C‑606/24
XY and Others
v
Ministerul Finanţelor
(Request for a preliminary ruling from the Tribunalul
București (Regional Court, Bucharest, Romania))
( Reference for a preliminary ruling – Second subparagraph of Article 19(1) TEU – Judicial independence – Tribunal previously established by law – National legislation requiring lower courts to request a preliminary ruling from the highest court – Cases concerning the establishment and/or payment of the salary entitlements or salary-related entitlements of staff paid from public funds – Obligation to request a preliminary ruling on points of law not previously dealt with by the highest court – Impact on the procedure under Article 267 TFEU )
I.      Introduction
1.        In the present case, the Court is asked to revisit the topic of the rule of law and the independence of the judiciary from the perspective of internal independence within the judiciary itself. Despite the wealth of case-law of the Court on the principle of judicial independence, (2) the present case raises a novel question of law as the Court is asked to rule on the compatibility of a national preliminary reference procedure
with that principle. The national procedure requires lower courts ruling on certain matters to seise the highest court in order that it may rule on a point of law.
2.        The present request for a preliminary ruling from the Tribunalul
București (Regional Court, Bucharest, Romania)
arose in the context of an action before that court brought by a number of persons against the Ministerul Finanțelor (Minister for Finance, Romania)
(‘the defendant’) concerning, inter alia,
the salary entitlements of staff paid from public funds.
3.        The request relates to
an emergency order –
OUG
No 62/2024 (3) –
adopted by the Romanian Government in 2024
which is aimed at ensuring consistent and harmonised judicial practice. OUG No 62/2024 provides, in essence, that if, in the course of an action concerning, inter alia, the salary entitlements of staff paid from public funds, the court hearing the case at first instance or on appeal finds that the Înalta Curte de Casație şi Justiție (High Court of Cassation and Justice, Romania)
(‘the ÎCCJ’) (4) has not ruled on a point of law the clarification of which is necessary in order to give a ruling on the merits of the case,
the court in question must request the ÎCCJ to rule
on that point. The decision to refer to the ÎCCJ is sent to the other courts having jurisdiction to hear similar cases, at first instance or on appeal. Those courts must stay similar actions pending before them until the ÎCCJ has ruled on the point of law in question. In that regard, the ÎCCJ must rule
on the point of law within 60 days of the date of referral.
4.        The applicants in the action before the referring court claim that courts cannot be deprived of the right to decide cases and that a single judicial instance – the ÎCCJ – cannot rule on a point of law which concerns many different cases. The referring court seeks to ascertain whether Article 2 TEU, the second subparagraph of Article 19(1) TEU and Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’) preclude such national legislation. It highlights the fact that
Legea nr. 134/2010 privind Codul de procedură civilă (Law No 134/2010 on the Code of Civil Procedure; ‘the Code of Civil Procedure’) (5) already provides the possibility for courts of final instance to request a ruling from the ÎCCJ on a point of law which requires clarification.
However, unlike the procedure under OUG
No 62/2024, which only applies to actions relating, inter alia, to salary and pension entitlements of staff paid from public funds, the procedure under the Code of Civil
Procedure is optional in nature and broader in scope
ratione materiae.
5.        Given that judicial independence and legal certainty
resulting from the consistency or uniformity of case-law (6) are both elements inherent to the rule of law, (7) a certain tension may arise between those two elements which the Court must reconcile.
6.        It would be somewhat disingenuous not to acknowledge at the outset certain similarities between the procedure under OUG No 62/2024 and that under Article 267 TFEU. The Court must therefore examine how those two preliminary reference procedures interact and whether the national procedure under OUG No 62/2024 impinges on the preliminary reference procedure under Article 267 TFEU and the primacy of EU law.
II.    Legal context – Romanian law
A.      OUG No 62/2024
7.        Articles 1 to 4 of OUG No 62/2024 provide:
‘Article 1
(1)      This Emergency Order shall apply to proceedings concerning the establishment and/or payment of salary entitlements or salary-related entitlements of staff paid from public funds …
(2)      This Emergency Order shall also apply to proceedings concerning the establishment and/or payment of pension entitlements …
…
Article 2
(1)      If, in the course of the proceedings referred to in Article 1, the adjudicating panel hearing the case at first instance or on appeal, verifying and finding that the [ÎCCJ] has not given a ruling on a point of law the clarification of which is necessary in order to give a ruling on the merits of the case, and that that point of law is also not the subject of a pending appeal in the interests of the law, shall request that the [ÎCCJ] give a ruling resolving in principle the point of law referred to it.
(2)      A copy of the
decision to refer the case shall also be sent, together with the communication to the [ÎCCJ], by email, by the court referring the case to the other courts having jurisdiction to hear and determine, either at first instance or on appeal, proceedings of the same nature as the proceedings in which that decision was formulated. …
(3)      Similar cases before the courts shall be suspended pending the delivery of the preliminary ruling from the [ÎCCJ] resolving the point of law.
…
(5)      References referred to in paragraph 1 shall be ruled on as a matter of priority, at the latest 60 days from the date of the [ÎCCJ] being entrusted with the case.
(6)      The reasons for the ruling shall be given no later than 15 days after the date of delivery and the ruling shall be published, at the latest 5 days after the reasons are given, in the Monitorul Oficial al României, Part I.
Article 3
The provisions of Articles 1 and 2 shall also apply to proceedings which are ongoing on the date of the entry into force of this Emergency Order.
Article 4
The provisions of this Emergency Order shall be supplemented by [the Code of Civil Procedure] …’
B.      The Code of Civil Procedure
8.        Articles 519 to 521 of the Code of Civil Procedure,
on referring a case to the ÎCCJ for a preliminary ruling in order to resolve one or more points of law,
provide:
‘Article 519
Subject matter of the reference
If, in the course of proceedings, an adjudicating panel of the [ÎCCJ], of a court of appeal or of a regional court hearing a case at final instance, finding that a point of law the clarification of which is necessary in order to give a ruling on the merits of the case, is new and that the [ÎCCJ] has not given a ruling thereon and that that point of law is also not the subject of a pending appeal in the interests of the law, that adjudicating panel may request that the [ÎCCJ] give a ruling resolving in principle the point of law referred to it.
Article 520
Procedure
(1)      The referring of a case to the [ÎCCJ]
shall be done by the adjudicating panel following exchanges of views, if the conditions laid down in Article 519 are satisfied, by a decision which shall not be open to any form of appeal. If it is ordered in the decision that the case be referred, the reference shall include grounds in support of the admissibility of the reference pursuant to the provisions of Article 519, as well as the point of view of the adjudicating panel and of the parties.
(2)      By the decision provided for in paragraph 1, the proceedings shall be stayed pending the delivery of the preliminary ruling [from the ÎCCJ] resolving the point of law.
(3)      Once the case has been entered in the register of the [ÎCCJ], the decision to refer the case shall be published on the webpage of that court.
(4)      Similar cases before the courts may be suspended pending the outcome of the referral.
…
(7)      … [the president of the formation] appoints a judge to draw up a report on the point of law referred. …
…
(10)      The report is notified to the parties, who within 15 days of its notification submit … their written observations on the point of law referred.
…
(12)      The reference shall be dealt with, without the parties being summoned, no later than three months from the date of the decision [to refer], and the solution shall be adopted by at least two
thirds of the number of judges on the panel. Abstaining from voting shall not be permitted.
Article 521
Content and effects of the ruling
(1)      The Panel for resolving points of law shall make a ruling regarding the reference by way of a decision, only with regard to the point of law which is to be resolved.
…
(3)      Any solutions given regarding issues of law shall be binding from the date of publication of the decision in the Monitorul Oficial al României, Part I, and, for the court that has requested resolution of the point of law concerned, from the date of delivery of the decision.
…’
III. The dispute in the main proceedings and the question referred for a preliminary ruling
9.        On 20 November 2023, the applicants brought an action before the Tribunalul
București (Regional Court, Bucharest)
to require
the defendant, inter alia,
to recalculate and pay, on the basis of the principle of non-discrimination, the difference between the salary entitlements actually received and those due at the maximum remuneration level for similar positions in several public authorities and institutions.
On
14 June 2024, and thus during the course of those proceedings, OUG
No 62/2024 entered into force. In accordance with Article 3 of OUG No 62/2024, Articles 1 and 2 thereof also apply to proceedings pending on the date of entry into force of that emergency order. At a hearing on 4 September 2024, the referring court asked the parties whether it was appropriate to request a preliminary ruling from the Court of Justice. The applicants argued, in essence, that a court hearing a dispute concerning salary entitlements ‘cannot be deprived of the right to decide a case and that a single adjudicating panel [(8)] cannot resolve, at a countrywide level, a question of law which concerns several separate cases’.
The defendant claimed that OUG
No 62/2024 was adopted in order to unify divergent case-law and to ensure the stability of legal relations in the field of salary entitlements of staff paid from public funds.
10.      The Tribunalul
București (Regional Court, Bucharest)
seised the Court of Justice on 17 September 2024 and indicated five reasons which prompted it to request a preliminary ruling.
11.      First, in accordance with the case-law of the ÎCCJ on Article 519 of the Code of Civil Procedure, the role of that court under that provision is exceptional. It only arises where a point of law which is decisive for deciding the case on the merits is not sufficiently clear and thus liable to lead to inconsistent case-law. It is not the prerogative of the ÎCCJ to
take the place of the judge(s)
seised of the case. The ÎCCJ may not resolve
points of law raised in a case, unless those points
give rise to difficulty. Furthermore, the procedure under Article 519 of the Code of Civil Procedure is optional and judges are free to assess the difficulty of the point of law and to manage the case on the basis of its specific facts. That provision also ensures that only the court of final instance may refer a matter to the ÎCCJ if it finds that there is a new point of law which is not the subject of an appeal in the interest of the law pursuant to Articles 514 to 518 of the Code of Civil Procedure. In addition, Article 519 of that code
is applicable to all persons.
12.      By contrast, for cases falling within its scope,
OUG No 62/2024 transforms an optional procedure into an obligatory one as it
requires courts to refer matters to the ÎCCJ even if they have no doubts as to the merits of the case. OUG No 62/2024
alters
the concept of a ‘point of law’ in Article 519 of the Code of Civil Procedure. That concept is not defined by law
and
the ÎCCJ
clarified its meaning in its case-law in order to ensure a strict delimitation between, on the one hand, the analysis and interpretation of legal rules under the mechanism for the unification of judicial practice and, on the other, concrete and individual rulings.
13.      Moreover, the requirement to seise the ÎCCJ and the
automatic suspension of all similar cases pending before the courts infringes the principle of the independence of judges as it deprives them
of the possibility of
assessing
how the point of law
should be resolved and adapted to the case before them. It may lead to a considerable backlog of cases before the courts, thereby further complicating the efficient management of cases and prolonging the duration of judicial proceedings. That runs counter to the stated purpose of OUG No 62/2024 of making the administration of justice more efficient.
14.      In accordance with the case-law of the ÎCCJ, the role of that court pursuant to
Article 519 of the Code of Civil Procedure is not to apply the law in order to give a ruling on the case in question;
that is the responsibility of the court seised of the case. The referring court considers that the aforementioned case-law of the ÎCCJ regarding the admissibility of such a reference is devoid of purpose if judges are obliged to refer all cases falling within the scope of OUG No 62/2024 to the ÎCCJ.
15.      Second, the referring court considers that OUG No 62/2024 is contrary to the principles of the rule of law and the separation of powers. It constitutes an impermissible interference by the executive in judicial activity. OUG No 62/2024 does not indicate why it only applies to certain judicial proceedings and does not lay down clear and precise conditions or deadlines.
In accordance with the preamble
to OUG No 62/2024, its adoption
is required due to
inconsistent judicial practice which may have a negative impact on the general budget and on socioeconomic stability. That implies that the procedure for
the unification of judicial practice should have favourable results for the State budget, thereby demonstrating that the legislature has certain expectations regarding the outcome of the unification procedure.
16.      Third, the referring court considers that OUG No 62/2024 adversely affects the right to a fair trial guaranteed, inter alia, by Article 47 of the Charter. Litigants may perceive that
that emergency order favours the administration in cases concerning salary entitlements and that judges of the lower courts
do not enjoy the public trust necessary to adopt decisions on their own, which
undermines public confidence in the judicial system. Moreover, it creates a dangerous precedent for excessive centralisation of the case-law and the forced standardisation of the interpretation of the law in certain categories of disputes. Mechanisms to ensure the consistency of case-law cannot disregard the requirement of access to an independent and impartial tribunal established by law.
17.      Fourth, the fact that there are a large number of cases pending before the courts should not be confused with the existence of divergent case-law. In any event, such divergence is inherent to any judicial system which is based on a network of trial and appeal courts with authority over the area of their territorial jurisdiction. (9) Romanian legislation (10) contains sufficient mechanisms for the unification of judicial practice. The Tribunalul
București (Regional Court, Bucharest) considers that the principle of judicial independence also applies within the judiciary. According to the European Commission for Democracy through Law (Venice Commission), ‘a hierarchical organisation of the judiciary in the sense of a subordination of the judges to the court presidents or to higher instances in their judicial [decision-making] activity would be a clear violation of this principle.’ (11)
18.      Fifth, in Hotărârea nr. 2 din 27 iunie 2019 (Decision No 2 of 27 June 2019; ‘Decision No 2/2019’), the Curtea Constituțională (Constitutional Court, Romania) confirmed the results of the national referendum of 26 May 2019, in which the Romanian people approved, inter alia, the prohibition of the adoption, by the Romanian Government, of emergency orders in the field of judicial organisation. OUG No 62/2024 is such an order. According to the referring court, the Romanian Government should thus ‘respect the obligation of constitutional loyalty’ and propose the adoption of a law on the matter by the parliament.
19.      In the light of the foregoing, the Tribunalul
București (Regional Court, Bucharest)
stayed the proceedings and decided to refer the following question to the Court of Justice for a preliminary ruling:
‘Is the second
subparagraph of Article 19(1) TEU (read in conjunction with Article 2 TEU and Article 47 of [the Charter]) to be interpreted as meaning that the principle of the independence of judges precludes national legislation introducing an obligation for adjudicating panels, which hear and determine cases concerning the establishment and/or payment of the salary entitlements or salary-related entitlements of staff paid from public funds, to request that the [ÎCCJ], in all cases which they are called to decide, give a preliminary ruling on points of law not previously dealt with by that court, thereby diminishing the ability of the judges hearing the cases in question to decide those cases independently, solely on the ground that inconsistent judicial practice may have a negative impact on the consolidated general budget and the socioeconomic stability of the country?’
IV.    The procedure before the Court
20.      The referring court requested the Court to apply the expedited procedure provided for in Article 105 of the Rules of Procedure of the Court of Justice to the present case. By order of 12 February 2025, the Court rejected that request. The Court considered, inter alia, that there were no exceptional circumstances justifying the use of that procedure.
21.      The Romanian Government and the European Commission submitted written observations.
22.      On 30 September 2025, the Court requested the Romanian Government to provide, by 3 October 2025 at the latest, the text of Articles 514 to 521 of the Code of Civil Procedure applicable to the facts in the main proceedings. The Romanian Government adhered to that request.
V.      Assessment
23.      By its question, the referring court asks, in essence, whether
the second subparagraph of Article 19(1) TEU, read in conjunction with Article 2 TEU and Article 47 of the Charter, and the principle of the independence of judges preclude national legislation which requires national courts
seised of cases concerning, inter alia, the salary entitlements of staff paid from public funds to request the supreme court
to give a preliminary ruling on a point of law not previously dealt with by the latter court. The referring court considers that that obligation, coupled with the obligation on other courts
seised of similar actions to stay the proceedings before them, undermines the independence of judges of lower courts.
24.      As a preliminary point, it is useful to
highlight a few elements of the Romanian judicial system which are relevant for understanding the mechanism introduced by OUG No 62/2024 and its articulation with obligations stemming from EU law. According to Article 126(3) of the Constituția României (Romanian Constitution), the ÎCCJ
shall provide a unitary interpretation and implementation of the law by the other courts of law, according to its competence. The supreme courts of many Member States are entrusted with that same function, which they generally fulfil by hearing cases on appeal. Such appeals are often limited to points of law. (12) For that reason, cases in which an important legal question is raised can, in principle, be appealed to the supreme court of the relevant Member State. In order to enable supreme courts to focus on questions of fundamental importance, various procedural rules may be applied, such as the filtering of appeals. (13)
25.      In the present case, it
would appear (14) that under the Romanian legal system
certain legal issues raised in cases concerning, inter alia, the establishment and/or payment of the salary entitlements of staff paid from public funds may not necessarily be appealed to the ÎCCJ. In such
cases, courts, other than the
ÎCCJ, act as courts of final instance. OUG No 62/2024, however, introduces a mechanism which ensures that a point of law that perhaps may not be ruled upon on appeal by the ÎCCJ will nevertheless be referred to that
court through an obligatory preliminary reference mechanism. In my view, that mechanism raises an additional legal question which I shall address in the last section of the present Opinion: in such circumstances, which is the court against whose decision there is no judicial remedy under national law in accordance with the third subparagraph of Article 267
TFEU?
26.      Prior to analysing those matters, I shall first examine the jurisdiction of the Court in the context of the present request for a preliminary ruling. I shall then briefly recall relevant aspects of
the existing case-law of the Court on the rule of law with particular reference to procedures seeking to unify national case-law before analysing that case-law in the light of the concerns raised by the referring court. Lastly, in the light of the observations of the Commission on the matter, I shall examine whether the national procedure in question may undermine the dialogue between the Romanian courts and the Court of Justice pursuant to Article 267 TFEU and the primacy of EU law.
A.      The jurisdiction of the Court and the admissibility of the question referred
27.      The Romanian Government and the Commission consider that Article 47 of the Charter does not apply to the main proceedings.
28.      The scope of the Charter regarding the action of the Member States is defined in Article 51(1) thereof, which provides that the provisions of the Charter are addressed to the Member States only when they are implementing EU law. The fundamental rights guaranteed in the legal order of the European Union are thus applicable in all situations governed by EU law, but not outside such situations. (15) The referring court has not provided any indication that the dispute in the main proceedings concerns the interpretation or application of a rule of EU law being implemented at national level. (16) Therefore, in accordance with Article 51(1) of the Charter, Article 47 thereof is not applicable, as such, to that case.
29.      Article 19 TEU, which gives concrete expression to the value of the rule of law affirmed in Article 2 TEU, entrusts the responsibility for ensuring the full application of EU law in all Member States and the judicial protection that individuals derive from EU law to national courts and tribunals and to the Court of Justice. (17) Under the second subparagraph of Article 19(1) TEU, Member States must establish a system of legal remedies and procedures ensuring effective judicial review in ‘the fields covered by Union law’, irrespective of whether the Member States are implementing Union law. That provision is intended, inter alia, to apply to any national body which can rule, as a court or tribunal, on questions concerning the interpretation or application of EU law and which therefore fall within the fields covered by that law. (18) That is true of the referring court.
The Court has stated that the very existence of effective judicial review designed to ensure compliance with EU law is of the essence of the rule of law. (19)
30.      Since the second subparagraph of Article 19(1) TEU requires all Member States to provide remedies that are sufficient to ensure effective judicial protection in the fields covered by Union law, within the meaning in particular of Article 47 of the Charter, the latter provision, although it is not applicable to the main proceedings, must be duly taken into
consideration for the purposes of interpreting the second subparagraph of Article 19(1) TEU. (20)
31.      Consequently, the Court has jurisdiction to interpret Article 2 TEU and the second subparagraph of Article 19(1) TEU,
read in the light of Article 47 of the Charter, in the present case.
32.      On the question of admissibility, I consider, as observed by the Romanian Government,
that the Court’s answer to the referring court’s question based on the second subparagraph of Article 19(1) TEU is capable of providing the latter with an interpretation of EU law which would allow it to resolve procedural questions of national law – relating to its jurisdiction and to that of the ÎCCJ – prior to ruling on the substance of the dispute before it. (21) In addition, there is nothing to indicate that the referring court cannot infer the consequences of that interpretation. (22) The question is thus admissible.
B.      Analysis
33.      It is settled case-law that the organisation of justice in the Member States, in particular, the establishment, composition, powers and functioning of the national courts, falls within the competence of those States. However, when exercising that competence, the Member States are required to comply with their obligations deriving from EU law and, in particular, from Articles 2 and 19 TEU. (23)
34.      The principle of the effective judicial protection of individuals’ rights under EU law, referred to in the second subparagraph of Article 19(1) TEU, is a general principle of EU law reaffirmed by Article 47 of the Charter. As previously indicated, (24) while the latter provision is not applicable in the present case, as such, it must be duly taken into consideration for the purposes of interpreting the second subparagraph of Article 19(1) TEU. It follows from the first sentence of the second paragraph of Article 47 of the Charter that everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. The Court has stressed that the guarantees of an independent and impartial tribunal previously established by law represent the cornerstone of the right to a fair trial. (25)
35.      There is abundant case-law of the Court on both the internal (26) and
the external (27) aspects of judicial independence. The latter aspect is intended not only to preserve the independence of the courts from the legislature and the executive in accordance with the principle of the separation of powers, but to safeguard judges against undue influence from within
the court concerned, (28) and a fortiori from other courts.
36.      The second subparagraph of Article 19(1) TEU also requires the existence of a tribunal ‘previously established by law’, bearing in mind the inextricable links that exist between access to such a tribunal and the guarantees of judicial independence and judicial impartiality. That requirement covers not only the legal basis for the very existence of a tribunal, but also the composition of the bench in each case (29) and any other provision of domestic law which, if infringed, would render the participation of one or more judges in the examination of a case irregular. (30) It means, inter alia, that it is only the judicial panel responsible for the case that is to take the decision closing the proceedings. The requirements of effective judicial protection thus presuppose, inter alia, the existence of rules concerning the composition of judicial panels which are transparent and known to litigants and which are such as to preclude any undue interference in the decision-making process relating to a given case by persons from outside the judicial panel responsible for that case before whom the parties have not been able to put forward their arguments. (31) Requirements regarding the composition of the bench are sometimes referred to as the concept of a ‘lawful judge’. (32)
37.      The Court has stated that a Member State may, in certain circumstances, confer exclusive jurisdiction to hear and determine certain substantive questions of EU law to a single body or to several decentralised bodies. The grant of exclusive jurisdiction to a single court could enable that court to acquire special expertise conducive to limiting the average length of proceedings or to ensuring a uniform practice in the national territory, thereby contributing to legal certainty. Similarly, the designation of courts of a higher level in which judges have greater professional experience could facilitate a more homogeneous and specialised administration of justice in the field of substantive EU law concerned and more effective protection of the rights which individuals derive from that law. (33) The Member States are nevertheless responsible for ensuring that the rights which individuals derive from EU law are effectively protected in each case. (34)
38.      On the specific matter of national measures for the unification of national case-law, the Court stated in the judgment in Hann-Invest that any national measure or practice intended to avoid or resolve conflicts in case-law, thereby ensuring legal certainty, must comply with the second subparagraph of Article 19(1) TEU. (35) The Court also indicated in that judgment (36) that a procedural mechanism which allows a judge of a national court, who is not a member of the judicial panel with jurisdiction, to refer a case to a panel of that court sitting in extended composition is not contrary to the requirements stemming from the second subparagraph of Article 19(1) TEU, provided that three conditions are met: (i) the case has not yet been deliberated by the judicial panel initially designated; (ii) the circumstances in which such a referral may be made are clearly set out in the applicable legislation; (37) and (iii) the referral does not deprive the persons concerned of the possibility of participating in the proceedings before the panel sitting in extended composition. (38) As the Commission observed, the facts of the present case differ from the facts in the judgment in Hann-Invest.
OUG No 62/2024 establishes an obligatory procedure for the unification of case-law by a higher court, namely the ÎCCJ, rather than an internal mechanism or practice permitting the intervention in the judicial activity of a judicial panel of other persons performing a function within the court concerned. In addition, while a referral to the ÎCCJ is obligatory in certain instances, unlike the facts indicated in the judgment in Hann-Invest, it stems from the panel adjudicating the case itself. Despite such differences, I nonetheless consider that the Court’s ruling in that judgment is particularly instructive in the context of the present proceedings. The three conditions laid down in that judgment are, in my view, general in nature and may be applied mutatis mutandis
in the present case.
39.      While the Tribunalul
București (Regional Court, Bucharest) questions the legality of OUG No 62/2024 on a number of grounds,
it must be emphasised that that court does not call into question the legality of its own composition nor that of the ÎCCJ. Moreover, as the Commission observed, unlike the situation which prevailed in the Republic of Poland when the judgment of 5 June 2023, Commission v Poland (Independence and private life of judges),
(39) was handed down, it is not suggested in the present case that the procedure under OUG No 62/2024
prevents national courts called upon to apply EU law from checking whether, as composed, they constitute independent and impartial tribunals established by law. (40) The Tribunalul
București (Regional Court, Bucharest) also does not assert that those jurisdictions lack impartiality in the context of the procedure established by OUG No 62/2024. (41) The referring court has thus not raised doubts as to its imperviousness to external factors and its neutrality with respect to the interests before it, nor has it raised such doubts in respect of the ÎCCJ. (42) Moreover, in the present case, the alleged interference with judicial independence does not stem from within the lower courts in Romania nor from within the ÎCCJ itself, but rather from the ‘obligatory’ involvement of the ÎCCJ in the adjudication of cases pending before lower courts in accordance with OUG No 62/2024.
40.      The Tribunalul
București (Regional Court, Bucharest) considers, however, that by adopting OUG No 62/2024, the Romanian executive interfered inappropriately in the judicial sphere and undermined the independence of the lower courts due to the obligation to make preliminary references to the ÎCCJ.
The referring
court highlighted, in particular, the fact that, in addition to that emergency order,
a number of procedures already exist in Romania to avoid divergent national case-law and ensure legal certainty. (43) For example, Articles 514 to 518 of the Code of Civil Procedure establish a procedure for the unification of the case-law in the interest of the law, (44) while Articles 519 to 521 of that code establish a ‘general’ procedure for the referral of points of law to the ÎCCJ for a preliminary ruling.
The Tribunalul
București (Regional Court, Bucharest) refers extensively to the latter procedure and implies that OUG No 62/2024 is, at least to some extent, redundant, and its adoption is therefore unwarranted. The referring court also highlights and criticises the differences between the procedure under Articles 519 to 521 of the Code of Civil Procedure and that under OUG No 62/2024. It thus criticises the obligatory nature of OUG No 62/2024 and the fact that it applies to all lower courts rather than to courts of final instance, and requires those courts to refer matters to the ÎCCJ even if they have no doubts as to the merits of the case. In essence, the referring court considers that this leads to the usurpation of lower courts’ jurisdiction by the ÎCCJ.
41.      The Romanian Government
observes, however, that OUG No 62/2024 does not establish a ‘mechanical’ or ‘automatic’ procedure for the referral of any new point of law to the ÎCCJ. In accordance with Articles 519 and 520 of the Code of Civil Procedure, (45) which supplement OUG No 62/2024, novel questions of law do not require a preliminary reference to the ÎCCJ. Only difficult questions of law which may lead to divergent rulings may be subject to a preliminary reference to the ÎCCJ. The lower courts must assess whether all the conditions for admissibility are met prior to referring a point of law to the ÎCCJ and the reasons justifying such referral must be set out in the decision to refer. (46) The Romanian Government also stated
that, in order not to diminish the role of the ordinary courts, the ÎCCJ’s role under OUG No 62/2024 is exceptional in nature.
In addition, while the ÎCCJ’s interpretation of a point of law is binding pursuant to Article 521(3) of the Code of Civil Procedure and Article 126(3)
of the Romanian Constitution, the ÎCCJ cannot apply its interpretation of the point of law to the specific circumstances of a case. That role lies exclusively with the referring court. Thus, a preliminary ruling of the ÎCCJ only provides an abstract answer to a difficult question of law.
42.      It must be emphasised at the outset that it falls, in principle, within the competence of the Romanian legislature or executive to assess whether the adoption of an additional mechanism for the unification of case-law is necessary. (47) I consider, as the Commission observed, that the existence of other procedures
under national law with similar objectives and mechanisms does not, in itself, call into question the legality of OUG No 62/2024 under the second subparagraph of Article 19(1) TEU.
It appears that that emergency order is a lex specialis which derogates in certain instances from Articles 519 to 521 of the Code of Civil Procedure. The procedure under OUG No 62/2024 is also supplemented by and largely based on those provisions of the Code of Civil Procedure. Moreover, the case-law of the ÎCCJ on Articles 519 to 521 of the Code of Civil Procedure
and in particular the jurisdiction of the ÎCCJ
thereunder would appear to apply mutatis mutandis in the context of the procedure under OUG No 62/2024. Suffice to note that the referring court does not call into question the legality of those provisions of the Code of Civil Procedure nor indeed any other procedure for the unification of case-law in Romania. In addition, there is nothing in the file before the Court indicating that the co-existence of such procedures gives rise, inter alia, to legal uncertainty, thereby undermining the rule of law.
43.      It would appear (48) that the jurisdiction of the ÎCCJ
and that of the courts which refer points of law to it under OUG No 62/2024
is clearly and precisely defined by national legislation and case-law. (49) The ÎCCJ’s jurisdiction is strictly limited to the interpretation of difficult and abstract points of law which are likely to lead to divergent case-law in cases concerning, inter alia, the salary entitlements of staff paid from public funds. It follows that despite the obligation on lower courts to refer such points of law to the ÎCCJ for interpretation, the role of the latter court under OUG No 62/2024 only arises in limited, defined circumstances and is thus exceptional in nature. This is particularly evident from the rules on the admissibility of preliminary references pursuant to Article 519 of the Code of Civil Procedure
which applies to such references under OUG No 62/2024. (50) More importantly, the ÎCCJ does not have jurisdiction to apply its interpretation of the point of law in question to the facts of a particular case and to give judgment thereon. It would appear, in accordance with Article 521(1) of the Code of Civil Procedure and, in particular, with the use of the term ‘only’ therein, that that jurisdiction is strictly reserved to the lower court which referred the point of law to the ÎCCJ for interpretation or to a lower court which suspended a similar case pursuant to Article 2(3) of OUG No 62/2024
pending the ruling of the ÎCCJ on the point of law. The procedure under that emergency order,
as supplemented by Articles 519 to 521 of the Code of Civil Procedure,
thereby ensures that the ÎCCJ does not usurp the jurisdiction of the lower courts in question to rule on the specific facts of a case.
44.      I do not exclude that depriving lower courts of the possibility of ruling on a point of law and obliging
them to remit that task to the ÎCCJ could be perceived as demonstrating a certain mistrust towards the lower courts.
I consider, however, that the procedure under OUG No 62/2024
can nevertheless be justified by the objective of preventing
the emergence of a contradictory body of case-law at the level of the lower courts which may take considerable time to resolve through the ordinary appeals procedure. (51) It is thus for Romanian policymakers to weigh the interests at stake and to find an appropriate balance between the objective of ensuring, in a pre-emptive manner, the consistency of the case-law and the preservation
of the full jurisdiction of the lower courts in adjudicating a case. Compliance with the requirements stemming from Article 19(1) TEU
must be ensured in the course of that exercise.
45.      It would appear (52) that the ÎCCJ’s jurisdiction and its ruling on a point of law intervene prior to the final (53) deliberation of cases by the judicial panel initially designated. It is thus the judicial panel of the lower court responsible for the case that takes the decision closing the proceedings, thereby ensuring that the first condition indicated in the judgment in Hann-Invest is satisfied. (54) That conclusion is not called into question by the obligation to suspend other similar cases, pending the resolution of the point of law by the ÎCCJ, even if those cases are at
the deliberation stage of the proceedings.
The obligatory suspension of cases before lower courts pending the resolution of a legal question by
supreme, constitutional or even international courts is an inherent feature of various national procedural systems. It is clearly justified by the objective of pre-empting
the adoption by lower courts
of decisions
which may conflict with an (imminent) interpretation by supreme, constitutional or international courts on a point of law. (55)
46.      Furthermore,
the procedural requirements relating to a reference to the ÎCCJ
under OUG No 62/2024, in particular those relating to admissibility and the concept of a ‘point of law’,
appear to be laid down by national legislation and/or case-law and accordingly satisfy the second condition on transparency set out in the judgment in Hann-Invest. (56) According to the Romanian Government
and the Commission, in order to ensure observance of the principle of audi alteram partem, (57) a case is referred to the ÎCCJ following an exchange of views by the parties. In addition, parties may submit written observations on the point of law under consideration before the ÎCCJ.
In the light of the terms of Article 520(7) and (10) of the Code of Civil Procedure, the principle that the parties should be heard, which is an integral part of the right to a fair hearing and to effective judicial protection, (58) and thus, inter alia, the third condition in the judgment in Hann-Invest
would appear
to be satisfied. (59)
47.      Although the referring court has indicated that OUG No 62/2024 may lead to a backlog in the treatment of cases, that court did not indicate that such a backlog has in fact arisen. Furthermore, in accordance with Article 2(5) of OUG No 62/2024, references under Article 2(1) of that emergency order must be ruled on as a matter of priority and at the latest 60 days from the date the ÎCCJ is seised. That procedure and the corresponding requirement to suspend other similar cases (60) is clear and precise and does not appear apt to give rise to undue delay in proceedings, in particular in the light of the procedural benefits resulting from preliminary rulings by the ÎCCJ interpreting difficult points of law and the objectively short period of time in question. In addition, the procedure under OUG No 62/2024 is more accelerated than that laid down by Articles 519 to 521 of the Code of Civil Procedure. In that regard, Article 520(12) of that
code lays down a time limit of three months for the
ÎCCJ to rule. It would thus appear that OUG No 62/2024 enhances rather than undermines the efficient management of cases. (61)
48.      In its third reason for referring a question to the Court of Justice, the Tribunalul
București (Regional Court, Bucharest)
considers, in particular, that statements in the preamble to OUG No 62/2024
may give rise to a perception of judicial bias,
thereby undermining public confidence in the judicial system. (62) It thus relies in substance on the adage that ‘justice must not only be done, it must also be seen to be done’. (63)
49.      It is clear from the preamble to OUG nº 62/2024 that the Romanian executive considered that ‘there is a widespread phenomenon, which is becoming entrenched, of inconsistent judicial practice at the level of courts ruling in proceedings concerning the establishment and/or payment of salary entitlements’ and that ‘these categories of disputes have a direct and considerable impact on the consolidated general budget, an effect which is increased by the need to guarantee equal legal treatment’.
The
preamble
also states that OUG No 62/2024
was adopted in order to address and prevent the negative consequences resulting from that phenomenon of divergent judicial rulings.
50.      It must be stressed that the Tribunalul
București (Regional Court, Bucharest)
does not call into question the veracity or the objective nature of the contents of the preamble to OUG No 62/2024. It is clear therefrom that the adoption of that emergency order
was motivated by the existence of a phenomenon of inconsistent rulings by lower courts in a particular field and the overarching need to ensure stable legal relations and, in particular,
equality before the law in cases in that field. The fact that uniform case-law may contribute to greater predictability of budgetary expenditure does not in itself undermine the rule of law as prescribed by Article 2 TEU and the second subparagraph of Article 19(1) TEU. Indeed, uniform case-law
may enhance the rule of law by reducing legal uncertainty and ensuring equality before the law.
51.      More importantly, despite the reference in the preamble to OUG nº 62/2024 to the economic and societal impact of the divergent case-law in question, there is nothing in that preamble or indeed in that emergency order itself that requires the ÎCCJ to rule in a particular manner
or that would lead a reasonable person to doubt that the ÎCCJ would rule in a manner other than with total impartiality. It appears therefore that OUG No 62/2024 and its preamble do not lead to a reasonable perception that preliminary rulings of the ÎCCJ based on that legislation may be inappropriately biased in favour of the State and/or the State budget. I would also note, purely for the sake of completeness, that according to the Romanian Government the impartial treatment of such cases by the ÎCCJ is borne out by rulings delivered to date on such cases.
Ultimately, these
are matters for the referring court to assess.
52.      As regards the fifth reason of the Tribunalul
București (Regional Court, Bucharest) for referring a question to the Court of Justice, (64) I consider that despite the reference made by the former court to Decision No 2/2019 of the Curtea Constituțională (Constitutional Court, Romania) and the results of the national referendum of 26 May 2019, it would not appear that OUG No 62/2024
was adopted in breach of national law, in particular, national constitutional law. The referring court itself emphasised that the referendum in question was merely consultative and that its effects are political rather than legal in nature. Moreover, OUG No 62/2024 appears to enhance the constitutional role of the ÎCCJ, enshrined in Article 126(3) of the Romanian Constitution, of ensuring the consistent application and interpretation of the law by all the courts.
C.      Impact on the dialogue between the national courts and the Court of Justice pursuant to Article 267 TFEU
53.      The Commission considers that any procedural mechanism which seeks to avoid divergent case-law must ensure the effectiveness of the preliminary reference procedure pursuant to Article 267 TFEU and respect for the primacy of EU law. In accordance with Article 412(1)(7) of the Code of Civil Procedure, lodging a request for a preliminary ruling before the Court of Justice suspends the procedure. It is unclear whether that provision also applies to the 60-day time limit set out in Article 2(5) of OUG No 62/2024. If the ÎCCJ were to give a ruling within 60 days even though it considered it necessary to refer a question to the Court of Justice for a preliminary ruling, that emergency order would be incompatible with, inter alia, Article 267 TFEU. Moreover, if the ÎCCJ were to give a ruling without waiting for the answer of the Court, the preliminary ruling procedure would de facto be deprived of its effectiveness and the ÎCCJ would be prevented from ensuring the effective application of EU law.
54.      As previously indicated, while the organisation of justice in the Member States falls within the competence of those States, they must,
when exercising that competence,
comply with their obligations under EU law. (65) It follows from the answer I propose to the referring court’s question
that although EU law does not, in principle, preclude the Member States from establishing procedures for unifying national case-law, such as the procedure under OUG
No 62/2024, the implementation of such procedures must comply with the requirements deriving from EU law, particularly from Article 267 TFEU. (66)
55.      In order to ensure that the specific characteristics and the autonomy of the EU legal order are preserved, the Treaties have established a judicial system intended to ensure consistency and uniformity in the interpretation of EU law, with the preliminary ruling procedure under Article 267 TFEU as its keystone. (67) A court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, such as
the ÎCCJ, is obliged to make a reference to the Court of Justice under the third paragraph of Article 267 TFEU where a question concerning the interpretation of EU law or the validity of an act of secondary legislation is raised before it. That obligation is intended in particular to prevent a body of national case-law that is not in accordance with the rules of EU law from being established in any of the Member States. (68) The court or tribunal in question cannot be relieved of that obligation (69) unless it has established that the question raised is irrelevant or that the EU law provision in question has already been interpreted by the Court of Justice or that the correct interpretation of EU law is so obvious as to leave no scope for any reasonable doubt. (70) By contrast, decisions of other national courts which can be challenged by the parties before a higher court are not decisions within the meaning of the third paragraph of Article 267 TFEU. While those courts or tribunals retain the broadest power to bring a matter before the Court of Justice, (71) they are not under an obligation to do so. (72)
56.      A judgment in which the Court of Justice gives a preliminary ruling is binding on the national court which exercised its discretion or complied with its obligation to make a reference as regards the interpretation of EU law for the purposes of resolving the matter before it. (73) Otherwise, the effectiveness of Article 267 TFEU would be impaired. (74)
57.      I would briefly emphasise that the introduction of a national preliminary reference mechanism to the supreme court may, in certain instances and depending on the stage of the national proceedings, raise additional questions
on the identification of the court or tribunal against whose decisions there is no judicial remedy within the meaning of the third paragraph of Article 267 TFEU. That matter was not raised in the present case.
It must, however,
be addressed in order to examine the interaction of
an obligatory national preliminary ruling procedure, such as that in the present case, and the system of judicial protection created by EU law.
In the context of the procedure under OUG No 62/2024, there is no doubt that the ÎCCJ acts as the court against whose decisions there is no judicial remedy in the sense of the third paragraph of Article 267 TFEU when it rules upon a request for a preliminary ruling by the lower courts and provides a binding legal interpretation on the point of law referred. (75) In the absence of such a referral or where it is deemed inadmissible by the ÎCCJ, the Romanian courts or tribunals which hand down judgments
which are
not subject to appeal act as courts or tribunals
for the purposes of the third paragraph of Article 267 TFEU. (76) That is also the case when those courts or tribunals rule on other points of law not referred to the ÎCCJ. The qualification of a court or tribunal against whose decision there is no judicial remedy for the purposes of the third paragraph of Article 267 TFEU
is thus dependent on the referral or non-referral of a point of law to the ÎCCJ. In any event, all courts or tribunals
retain the faculty to make a request for a preliminary ruling to the Court
in accordance with the second paragraph of Article 267 TFEU.
58.      As regards the 60-day time limit set out in Article 2(5) of OUG No 62/2024, the implementation of that time limit, which appears to apply to the ÎCCJ only, (77) must meet the requirements deriving from EU law, particularly from the third paragraph of Article 267 TFEU. (78) In that regard,
there is nothing in the file before the Court that would indicate that the lower courts in Romania, including the Tribunalul
București (Regional Court, Bucharest), are bound by that time limit. Moreover, those lower courts appear to be able to refer to the Court of Justice for a preliminary ruling any question which they consider necessary, at whatever stage of the proceedings they consider appropriate, even after the ÎCCJ has ruled on a point of law under the procedure in OUG No 62/2024. (79) It appears therefore that the Commission’s observations on the 60-day time limit
and Article 267 TFEU are, at least in part, somewhat moot in the context of the present proceedings. I shall nonetheless address briefly that time limit to which the ÎCCJ is subject for the sake of completeness.
59.      The principle of the primacy of EU law, which establishes the pre-eminence of EU law over the law of the Member States, requires all Member State bodies, including national courts, to give full effect to the various EU provisions, and the law of the Member States may not undermine the effect accorded to those various provisions in the territory of those States. (80) It follows from that principle that national courts must, inter alia, interpret, to the greatest extent possible, their national law in conformity with EU law, in particular in this instance with the third paragraph of Article 267 TFEU. That obligation may not, however, serve as a basis for an interpretation of national law
contra legem. In view of the fact that national courts and tribunals alone have jurisdiction to interpret national law, it is for them to determine whether it is possible to interpret the national legislation at issue in the main proceedings in accordance with the requirements of Article 267 TFEU. That said, it is for the Court of Justice to provide some useful guidance in the light of the information contained in the order for reference and the observations submitted. (81)
60.      Given that there appears (82) to be no provision in OUG No 62/2024 which explicitly prevents the suspension of the 60-day time limit in question
in accordance, inter alia, with Article 412(1)(7) of the Code of Civil Procedure, I consider that it is possible to interpret the national legislation in question in conformity with Article 267 TFEU.
Thus, if the ÎCCJ requests a preliminary ruling
from the Court of Justice pursuant to Article 267 TFEU, it must, in order to ensure the effectiveness of that provision pursuant to the primacy principle, suspend the proceedings before it pending the preliminary ruling of the Court of Justice,
thereby preventing the expiry or risk of expiry of the time limit in question. In addition, the ÎCCJ must subsequently apply that ruling for the purposes of resolving the matter pending before it. (83) Such an interpretation of national law in conformity with EU law would not, in my view, entail an interpretation of national law contra legem.
VI.    Conclusion
61.      In the light of the foregoing considerations, I propose that the Court answer the question submitted to it by
the Tribunalul
București (Regional Court, Bucharest, Romania)
as follows:
Article 2 TEU, the second subparagraph of Article 19(1) TEU and Article 267 TFEU
must be interpreted as not precluding national law from introducing
a mechanism providing
an obligation for national courts, which hear and determine cases concerning the establishment and/or payment of the salary entitlements or salary-related entitlements of staff paid from public funds, to request that the national supreme court give a preliminary ruling on points of law not previously dealt with by the
latter court, provided that (i) the circumstances in which such a referral may be made are clearly set out in the applicable legislation,
(ii) the referral does not deprive the persons concerned of the possibility of participating in the proceedings before the national supreme court and (iii) national law does not prevent the supreme court or any other court against whose decisions there is no judicial remedy under national law
from
complying with the obligation under the third paragraph of Article 267 TFEU
or deprive
lower courts of the discretion conferred on them by the second paragraph of Article 267 TFEU.
1      Original language: English.
2      The Court has ruled on the matter of judicial independence in over 30 cases since the judgment of 27 February 2018, Associação Sindical dos Juízes Portugueses (C‑64/16, EU:C:2018:117).
3      OUG nr. 62/2024 privind unele măsuri pentru soluționarea proceselor privind salarizarea personalului plătit din fonduri publice, precum și a proceselor privind prestații de asigurări sociale (Government Emergency Order No 62/2024 laying down measures for resolving proceedings concerning the remuneration of staff paid from public funds, as well as proceedings concerning social security benefits) of 13 June 2024, published in the Monitorul Oficial al României, Part I, No 559 of 14 June 2024 (‘OUG No 62/2024’).
4      That court is the highest or supreme ordinary court in Romania.
5      The Tribunalul
București (Regional Court, Bucharest) also refers briefly to the
Codul de procedură penală (Code of Criminal Procedure).
6      See judgment of 24 July 2023, Lin (C‑107/23 PPU, EU:C:2023:606, paragraph 114 and the case-law cited). See also the judgments of the European Court of Human Rights (‘the ECtHR’) of 20 October 2011,
Nejdet Şahin and Perihan Şahin v. Turkey
(CE:ECHR:2011:1020JUD001327905, §§ 56 to 58), and of 29 November 2016, Lupeni Greek Catholic Parish and Others v. Romania
(CE:ECHR:2016:1129JUD007694311, §§ 128, 134 and 135).
7      See recital 3 of Regulation (EU, Euratom) 2020/2092 of the European Parliament and of the Council of 16 December 2020 on a general regime of conditionality for the protection of the Union budget (OJ 2020 L 433I, p. 1).
8      The ÎCCJ.
9      ECtHR, 4 June 2013, Tudor Tudor v. Romania (ECLI:CE:ECHR:2009:0324JUD002191103, § 29).
10      See the Code of Civil Procedure and the Code of Criminal Procedure.
11      See Report on the Independence of the Judicial System – Part I: The Independence of Judges, adopted by the Venice Commission at its 82nd Plenary Session (Venice (Italy), 12 and 13 March 2010), CDL-AD(2010)004, paragraph 68; available at https://www.venice.coe.int/webforms/documents/?pdf=CDL-AD(2010)004-e.
12      See, for example, Galič, A., ‘A civil law perspective on the Supreme Court and its functions’, Studia Iuridica, Vol. 81, Warsaw, 2019, pp. 44 to 86.
13      See Opinion of Advocate General Emiliou in KUBERA (C‑144/23, EU:C:2024:522, point 3) in which he remarked that, over the past few decades, there has been somewhat of a trend across the Member States of the European Union towards establishing
filtering mechanisms
for appeals before the highest court. While some forms of filtering mechanisms now exist in several Member States, the supreme courts of other Member States do not necessarily have such mechanisms. Moreover, where such mechanisms exist, their operation may vary between Member States.
14      Subject to verification by the referring court.
15      See, to that effect, judgments of 14 November 2024, S. (Modification of the formation of the court) (C‑197/23, EU:C:2024:956, paragraphs 35 to 39), and of 4 September 2025, AW ‘T’ (C‑225/22, EU:C:2025:649, paragraphs 31 to 33 and the case-law cited).
16      The Romanian Government submits that the main proceedings relate exclusively to a provision of national law.
17      Judgment of 8 May 2024, Asociaţia ‘Forumul Judecătorilor din România’ (Associations of judges) (C‑53/23, EU:C:2024:388, paragraph 34).
18      See, to that effect, judgment of 11 July 2024, Hann-Invest and Others (C‑554/21, C‑622/21 and C‑727/21,
‘the judgment in Hann-Invest’, EU:C:2024:594, paragraphs 34 to 36).
19      Judgment of 27 February 2018, Associação Sindical dos Juízes Portugueses (C‑64/16, EU:C:2018:117, paragraph 36).
20      Both Article 47 of the Charter and the second subparagraph of Article 19(1) TEU have direct 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, paragraphs 143 to 145).
21      See, by analogy, judgment of 26 March 2020, Miasto Łowicz and Prokurator Generalny (C‑558/18 and C‑563/18, EU:C:2020:234, paragraph 51).
22      See judgment of 9 January 2024, G. and Others (Appointment of judges to the ordinary courts in Poland) (C‑181/21 and C‑269/21, EU:C:2024:1, paragraph 69).
23      Judgments of 5 June 2023, Commission v Poland (Independence and private life of judges) (C‑204/21, EU:C:2023:442, paragraph 63), and of 14 November 2024, S. (Modification of the formation of the court) (C‑197/23, EU:C:2024:956, paragraph 31).
24      See points 28, 30 and 31
of the present Opinion.
25      Judgment of 5 June 2023, Commission v Poland (Independence and private life of judges) (C‑204/21, EU:C:2023:442, paragraph 71 and the case-law cited).
26      Internal independence, which is linked to impartiality, requires that an equal distance is maintained from the parties to the proceedings
and their respective interests with regard to the subject matter of those proceedings. See, to that effect, judgment of 21 January 2020, Banco de Santander (C‑274/14, EU:C:2020:17, paragraph 61). In that judgment, the Court rejected as inadmissible a request for a preliminary ruling from the Tribunal Económico-Administrativo Central (Central Tax Tribunal, Spain). The Court considered, inter alia, that certain characteristics of the extraordinary appeal procedure before the Sala Especial para la Unificación de Doctrina (Special Chamber for the Unification of Precedent, Spain) of the Tribunal Económico-Administrativo Central (Central Tax Tribunal) cast doubt on whether the latter acts as a ‘third party’ with respect to the interests before it due to organisational and functional links between that tribunal and the Spanish Ministry of the Economy and Finance.
27      External independence requires
that the court concerned exercise its 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. See, to that effect, judgment of 27 February 2018, Associação Sindical dos Juízes Portugueses
(C64/16,
EU:C:2018:117, paragraph 44 and the case-law cited).
28      Judgment of 14 November 2024, S. (Modification of the formation of the court) (C‑197/23, EU:C:2024:956, paragraphs 54 and 61 and the case-law cited).
29      See judgment of 6 March 2025, D.K. (Withdrawal of cases from a judge) (C‑647/21 and C‑648/21, EU:C:2025:143, paragraphs 71 to 74 and the case-law cited).
30      Judgment of 14 November 2024, S. (Modification of the formation of the court) (C‑197/23, EU:C:2024:956, paragraphs 63 and 64 and the case-law cited). See also judgment of 21 December 2023, Krajowa Rada Sądownictwa (Continued holding of a judicial office) (C‑718/21, EU:C:2023:1015, paragraphs 47 to 53), which refers extensively to case-law of the ECtHR on the rule of law and violations of Article 6(1) ECHR in the Republic of Poland.
31      The judgment in Hann-Invest, paragraphs 55 and 59.
32      See, for example, Article 101 of the Grundgesetz für die Bundesrepublik Deutschland (Basic Law for the Federal Republic of Germany) of 23 May 1949 (BGBl. p. 1), last amended by the Gesetz vom 19.12.2022 (Law of 19 December 2022, BGBl. I p. 2478) which provides ‘(1) …
No one may be removed from the jurisdiction of his [or her]
lawful judge. …’ (emphasis added). See also Dero-Bugny, D., ‘Le principe du juge légal en droit de l’Union européenne’, Journal du droit européen, 2022, p. 154.
33      Judgment of 5 June 2023, Commission v Poland (Independence and private life of judges) (C‑204/21, EU:C:2023:442, paragraphs 264 to 266 and 279 and the case-law cited). Given the obligation on lower courts under OUG No 62/2024 to refer points of law to the ÎCCJ in certain instances, I consider that this case-law is relevant by analogy. The procedure under OUG No 62/2024 would appear to be aimed at ensuring a uniform practice in Romania in a particular field of law, thereby contributing to legal certainty.
34      The Court has also stated that Article 2 TEU and the second subparagraph of Article 19(1) TEU do not preclude national rules or a national practice under which the decisions of the constitutional court are binding on the ordinary courts, provided that national law guarantees the independence of that constitutional court from, in particular, the legislature and the executive, as is required by those provisions (judgment of 22 February 2022, RS (Effect of the decisions of a constitutional court), C‑430/21, EU:C:2022:99, paragraph 44 and the case-law cited).
35      See paragraph 48 of that judgment.
36      See paragraph 80 thereof.
37      That reflects the principles, inter alia, of transparency and legal certainty.
38      That reflects the principle that the parties to proceedings must be adequately heard or the adversarial principle.
39      C‑204/21, EU:C:2023:442.
40      Ibid., paragraphs 276 to 279.
41      See, however, points 15 and 48
to 51
of the present Opinion.
42      See 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, paragraph 123).
43      See the first, second and fourth reasons which prompted the referring court to refer a question to the Court of Justice, outlined in
points 11 to 15 and 17 of the present Opinion. I will deal with these reasons together for the sake of convenience.
44      The Procurorul General al României (Prosecutor General of Romania), amongst others, may ask the ÎCCJ to rule on questions of law which have given rise to divergent case-law. The decision of the ÎCCJ
is issued solely in the interest of the law and does not affect either the court decisions under consideration or the situation of the parties to those proceedings.
45      And the case-law of the
ÎCCJ thereon.
46      See Article 520 of the Code of Civil Procedure.
47      See, to that effect, point 33 of the present Opinion. Several Member States have introduced internal preliminary reference mechanisms to their supreme courts aimed at clarifying important legal questions in disputes pending before the lower courts.
See, for example,
Article 390 of the Kodeks postępowania cywilnego (Polish Code of Civil Proceedings),
which provides: ‘§ 1. If, during the examination of an appeal, a legal question which raises serious doubts arises, the court may adjourn the hearing and refer such a question to the Supreme Court for consideration. The Supreme Court is competent either to hear the case itself or to refer the question for consideration to its extended panel. § 2. The Supreme Court resolution regarding the legal question shall be binding in the case.’ For the official version in the Polish language, see https://isap.sejm.gov.pl/isap.nsf/download.xsp/WDU19640430296/U/D19640296Lj.pdf. See also
Articles 392 to 395 of the Wetboek van Burgerlijke Rechtsvordering (Netherlands Code of Civil Proceedings); available at
https://www.rechtspraak.nl/SiteCollectionDocuments/dutch-code-of-civil-procedure-2025.pdf. The uniqueness of the Romanian procedure introduced under OUG No 62/2024
stems, however,
from its obligatory character
in certain instances, thereby limiting the discretion of the lower courts.
48      Subject to verification by the referring court.
49      In a similar manner to the procedure laid down in Articles 519 and 520 of the Code of Civil Procedure.
50      In particular, the requirement of the existence of ‘a point of law, the clarification of which is necessary in order to give a ruling on the merits of the case’.
51      Given that OUG No 62/2024 appears to preserve the jurisdiction of the lower courts in finding the facts and applying the abstract ruling of the ÎCCJ on a point of law to the facts of the case at hand, it ensures that the case-law is not subject to excessive centralisation. See
the observations of the referring court summarised in
point 16 of the present Opinion.
52      Subject to verification by the referring court.
53      I have inserted the word ‘final’,
which was not used in the judgment in Hann-Invest,
as I consider, subject to verification by the referring court, that the lower courts in Romania may make a reference to the ÎCCJ in accordance with OUG No 62/2024
despite the fact that they have commenced deliberating on a case, as the necessity to make such a reference may only come to light in the course of those deliberations. Moreover, other lower courts may be required to suspend deliberations which have commenced if a point of law relevant to proceedings pending before them has been referred to the ÎCCJ.
54      See point 38 of the present Opinion.
A similar approach was adopted by the Committee of Ministers of the Council of Europe,
which recommended that ‘hierarchical judicial organisation should not undermine individual independence’ and that ‘superior courts should not address instructions to judges about the way they should decide individual cases, except in preliminary rulings …’
(emphasis added). Recommendation of the Committee of Ministers to member states on judges: independence, efficiency and responsibilities,
adopted by the Committee of Ministers on 17 November 2010 at the 1 098th meeting of the Ministers’ Deputies, CM/Rec(2010)12, paragraphs 22 and 23.
55      See, for example, Article 163 of the Civilinio Proceso Kodekso (Lithuanian Code of Civil Procedure), which provides for the obligatory suspension of a case by the court which refers a question on constitutionality or the legality of a legal act applicable in a case to the Lietuvos Respublikos Konstitucinis Teismas (Constitutional Court of the Republic of Lithuania) or the Lietuvos vyriausiasis administracinis teismas (Supreme Administrative Court of Lithuania), or refers a preliminary question to the Court of Justice under Article 267 TFEU. The obligation to suspend also applies when other courts have already referred the same question;
available at: https://e-seimas.lrs.lt/portal/legalAct/lt/TAD/TAIS.162435/asr.
56      See point 38 of the present Opinion.
57      Sometimes referred to as the adversarial principle.
58      See the judgment in Hann-Invest, paragraph 58.
59      See point 38 of the present Opinion. Compliance with those three conditions is subject to verification by the referring court.
60      See Article 2(3) of OUG No 62/2024.
61      The manner in which the procedure in fact operates must be verified by the referring court.
62      See point 16 of the present Opinion.
63      See, to that effect, judgment of 15 July 2021, Commission v Poland (Disciplinary regime for judges) (C‑791/19, EU:C:2021:596, paragraph 59).
64      See point 18 of the present Opinion.
65      See point 33 of the present Opinion.
66      See, to that effect, judgment of 15 October 2024, KUBERA (C‑144/23, EU:C:2024:881, paragraph 32).
67      Judgment of 5 June 2023, Commission v Poland (Independence and private life of judges) (C‑204/21, EU:C:2023:442, paragraphs 274 and 275), and
Opinion 2/13 (Accession of the European Union to the ECHR) of 18 December 2014 (EU:C:2014:2454, paragraph 198).
68      Judgment of 15 October 2024, KUBERA (C‑144/23, EU:C:2024:881, paragraph 35).
69      As regards the obligation on that court or tribunal to state reasons for not referring a matter to the Court, see judgment of 15 October 2024, KUBERA (C‑144/23, EU:C:2024:881, paragraphs 61 to 65). See also Opinion of Advocate General Ćapeta in Remling (C‑767/23, EU:C:2025:486, points 62 to 85). On the question of Member State liability for damages due to failure of a national court of final instance to refer a matter to the Court pursuant to the third paragraph of Article 267 TFEU and, in particular, the importance of reasoning in that context, see Opinion of Advocate General Ćapeta in Ferreira da Silva e Brito and Others (C‑293/24, EU:C:2025:850).
70      See, to that effect, judgment of 15 October 2024, KUBERA (C‑144/23, EU:C:2024:881, paragraphs 34 and 36). See also judgment of 6 October 2021, Consorzio Italian Management and Catania Multiservizi (C‑561/19, EU:C:2021:799, paragraphs 40 to 51), in which the Court of Justice laid down detailed criteria for assessing whether a court or tribunal against whose decisions there is no judicial remedy under national law is relieved of its obligation to make a reference to the Court under the third paragraph of Article 267 TFEU. In that judgment, the Court clarified and refined its previous case-law in, inter alia, its seminal judgment of 6 October 1982, Cilfit (283/81, EU:C:1982:335).
71      That discretion is conferred by the second paragraph of Article 267 TFEU.
72      See, to that effect, judgment of 15 September 2005, Intermodal Transports (C‑495/03, EU:C:2005:552, paragraph 31).
73      Judgment of 22 February 2022, RS (Effect of the decisions of a constitutional court) (C‑430/21, EU:C:2022:99, paragraph 74).
74      Judgment of 24 July 2023, Lin (C‑107/23 PPU, EU:C:2023:606, paragraph 134 and the case-law cited).
75      In accordance with Article 521(3) of the Code of Civil Procedure, any solutions given regarding issues of law shall be binding from the date of publication of the decision.
76      In its judgment of 15 July 1964, Costa (6/64, EU:C:1964:66), the Court accepted that the Giudice conciliatore di Milano (Judge-Conciliator, Milan, Italy) was a national court against whose decisions there was no judicial remedy and that the latter was thus required to refer questions on the interpretation of the Treaty to the Court.
77      Subject to verification by the referring court.
78      See, by analogy, judgment of 15 October 2024, KUBERA (C‑144/23, EU:C:2024:881, paragraph 32).
79      See, by analogy, judgment of 22 June 2010, Melki and Abdeli (C‑188/10 and C‑189/10, EU:C:2010:363, paragraph 52). That is a matter for the referring court to verify.
80      Judgment of 24 July 2023, Lin (C‑107/23 PPU, EU:C:2023:606, paragraphs 128 and 129 and the case-law cited).
81      See, by analogy, judgment of 15 October 2024, KUBERA (C‑144/23, EU:C:2024:881, paragraphs 51 to 53).
82      Subject to verification by the referring court.
83      Judgment of 24 July 2023, Lin (C‑107/23 PPU, EU:C:2023:606, paragraph 132 and the case-law cited).