OPINION OF ADVOCATE GENERAL

BOBEK

delivered on 23 September 2020 ( 1 )

Joined Cases C‑83/19, C‑127/19 and C‑195/19

Asociaţia ‘Forumul Judecătorilor din România’

v

Inspecţia Judiciară

(Request for a preliminary ruling from the Tribunalul Mehedinţi (Regional Court, Mehedinţi, Romania))

and

Asociaţia ‘Forumul Judecătorilor din România’,

Asociaţia ‘Mişcarea pentru Apărarea Statutului Procurorilor’

v

Consiliul Superior al Magistraturii

(Request for a preliminary ruling from the Curtea de Apel Alba Iulia (Court of Appeal, Alba Iulia, Romania))

and

PJ

v

QK

(Request for a preliminary ruling from the Curtea de Apel Bucureşti (Court of Appeal, Bucharest, Romania))

Case C‑291/19

SO

v

TP and Others

(Request for a preliminary ruling from the Curtea de Apel Braşov (Court of Appeal, Braşov, Romania))

Case C‑355/19

Asociaţia ‘Forumul Judecătorilor din România’,

Asociaţia ‘Mişcarea pentru Apărarea Statutului Procurorilor’,

OL

v

Parchetul de pe lângă Înalta Curte de Casaţie şi Justiţie — Procurorul General al României

(Request for a preliminary ruling from the Curtea de Apel Piteşti (Court of Appeal, Piteşti, Romania))

(Reference for a preliminary ruling – Treaty of Accession of the Republic of Bulgaria and Romania to the European Union – Commission Decision 2006/928/EC establishing a Mechanism for Cooperation and Verification (MCV) – Nature and legal effects of the MCV and of the reports established by the Commission on its basis – Interim appointment of the management of the Judicial Inspection – National rules on the establishment and organisation of a section within the Public Prosecutor’s Office for the investigation of offences committed within the judiciary – Article 47 of the Charter of Fundamental Rights of the European Union – Second subparagraph of Article 19(1) TEU – Rule of law – Judicial independence)

Table of contents

I. Introduction II. Legal framework A. EU law 1. Primary law 2. The MCV Decision B. Romanian law 1. The Romanian Constitution 2. Provisions relating to the Judicial Inspection (a) Law No 317/2004 (b) Emergency Ordinance No 77/2018 3. Provisions relating to the Section for the Investigation of Offences committed within the Judiciary (a) Law No 207/2018 (b) Emergency Ordinance No 90/2018 (c) Emergency Ordinance No 92/2018 (d) Emergency Ordinance No 7/2019 (e) Emergency Ordinance No 12/2019 III. Facts, national proceedings and the questions referred A. Case C‑83/19 B. Case C‑127/19 C. Case C‑195/19 D. Case C‑291/19 E. Case C‑355/19 F. The procedure before the Court IV. Analysis A. Admissibility of the questions referred 1. C‑83/19 2. C‑127/19 and C‑355/19 3. C‑195/19 and C‑291/19 4. Interim conclusion on admissibility B. Relevant EU law and yardsticks 1. The MCV (a) Are the MCV Decision and the MCV reports acts of the European Union? (b) Is the Treaty of Accession a proper legal basis? (1) Formal legal basis (2) Content and objectives (3) Duration of the MCV (4) Interim conclusion (c) The legal effects of the MCV (1) The legal effects of the MCV Decision (2) The legal effects of the MCV reports (d) Do the national measures at issue fall within the scope of the MCV? 2. The principle of judicial independence: Article 47 of the Charter and/or Article 19(1) TEU (a) Article 47 of the Charter (b) Article 19(1) TEU (c) Article 19(1) TEU and the dangers of gates which are too open 3. The yardsticks and the nature of the assessment (a) The yardsticks: the external aspects of judicial independence and the doctrine of appearances (b) The nature of the assessment: what is to be established C. Assessment of the national provisions at issue 1. General Context 2. Interim appointment of the management of the Judicial Inspection (a) The order for reference and the position of the parties (b) Analysis (c) Interim conclusion 3. Section for the Investigation of Offences Committed within the Judiciary (a) The orders for reference and the positions of the parties (b) Analysis (i) Justification – Unambiguous and accessible justification? – Genuine justification? (ii) Guarantees (iii) Context and practical functioning (iv) Reasonable deadline (c) Interim conclusion V. Conclusion

I. Introduction

1. The present cases concern two institutional aspects of the Romanian judicial system that have recently been amended through the reform of the so-called ‘Justice Laws’ ( 2 ) in that Member State. In essence, the five requests for a preliminary ruling examined together in this Opinion concern, on the one hand, the interim appointment of the head of the Inspecția Judiciară (Judicial Inspection, Romania) and, on the other, the creation of a section within the Public Prosecutor’s Office, responsible for the investigation of offences committed within the judiciary. ( 3 )

2. There are, however, two preliminary issues that are common to all those cases, which must be addressed at the outset. First, what is the legal nature and effects of the ‘Mechanism for Cooperation and Verification’ (‘the MCV’), ( 4 ) established by Commission Decision 2006/928/EC? ( 5 )

3. On the basis of the MCV, the European Commission issues periodic reports. In its report published in 2018, ( 6 ) the Commission identified several problematic aspects relating to the recent reforms in the Romanian judicial system which form the subject matter of the present reference for a preliminary ruling. Against that background, the referring courts sought clarification on the legal status of the MCV and the Commission’s reports, in particular in order to ascertain whether the recommendations contained in the Commission’s reports are binding on the Romanian authorities.

4. Furthermore, while querying the compatibility of the national legislative changes with the principles of the rule of law, effective judicial protection, and the independence of the judiciary, the questions referred point to a number of provisions of primary law, in particular to Article 2 TEU; the second subparagraph of Article 19(1) TEU; and the second paragraph of Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’). The second preliminary issue in need of clarification is therefore which of these provisions are applicable in the present cases, in the particular post-accession context of Romania within which the MCV remains applicable.

II. Legal framework

A. EU law

1. Primary law

5. In accordance with Article 4(3) of the Treaty on the accession of the Republic of Bulgaria and Romania to the European Union (‘the Treaty of Accession’), ( 7 ) the institutions of the Union may adopt before accession, inter alia, the measures referred to in Articles 37 and 38 of the Act concerning the conditions of accession of the Republic of Bulgaria and Romania (‘the Act of Accession’). ( 8 )

6. Article 2 of the Act of Accession provides that, from the date of accession, the provisions of the original Treaties and the acts adopted by the institutions before accession are to be binding on Romania and are to apply under the conditions laid down in the Treaties and the Act of Accession.

7. Article 37 of the Act of Accession states that: ‘If Bulgaria or Romania has failed to implement commitments undertaken in the context of the accession negotiations, causing a serious breach of the functioning of the internal market, including any commitments in all sectoral policies which concern economic activities with cross-border effect, or an imminent risk of such breach the Commission may, until the end of a period of up to three years after accession, upon motivated request of a Member State or on its own initiative, take appropriate measures. Measures shall be proportional and priority shall be given to measures which least disturb the functioning of the internal market and, where appropriate, to the application of the existing sectoral safeguard mechanisms. Such safeguard measures shall not be invoked as a means of arbitrary discrimination or a disguised restriction on trade between Member States. The safeguard clause may be invoked even before accession on the basis of the monitoring findings and the measures adopted shall enter into force as of the first day of accession unless they provide for a later date. The measures shall be maintained no longer than strictly necessary and, in any case, shall be lifted when the relevant commitment is implemented. They may however be applied beyond the period specified in the first paragraph as long as the relevant commitments have not been fulfilled. In response to progress made by the new Member State concerned in fulfilling its commitments, the Commission may adapt the measures as appropriate. The Commission shall inform the Council in good time before revoking the safeguard measures, and it shall take duly into account any observations of the Council in this respect.’

8. Article 38 of the Act of Accession states: ‘If there are serious shortcomings or any imminent risks of such shortcomings in Bulgaria or Romania in the transposition, state of implementation, or the application of the framework decisions or any other relevant commitments, instruments of cooperation and decisions relating to mutual recognition in the area of criminal law under Title VI of the EU Treaty and Directives and Regulations relating to mutual recognition in civil matters under Title IV of the EC Treaty, the Commission may, until the end of a period of up to three years after accession, upon the motivated request of a Member State or on its own initiative and after consulting the Member States, take appropriate measures and specify the conditions and modalities under which these measures are put into effect. These measures may take the form of temporary suspension of the application of relevant provisions and decisions in the relations between Bulgaria or Romania and any other Member State or Member States, without prejudice to the continuation of close judicial cooperation. The safeguard clause may be invoked even before accession on the basis of the monitoring findings and the measures adopted shall enter into force as of the first day of accession unless they provide for a later date. The measures shall be maintained no longer than strictly necessary and, in any case, shall be lifted when the shortcomings are remedied. They may however be applied beyond the period specified in the first paragraph as long as these shortcomings persist. In response to progress made by the new Member State concerned in rectifying the identified shortcomings, the Commission may adapt the measures as appropriate after consulting the Member States. The Commission shall inform the Council in good time before revoking the safeguard measures, and it shall take duly into account any observations of the Council in this respect.’

2. The MCV Decision

9. The MCV Decision was adopted, according to its recital 5, on the basis of Articles 37 and 38 of the Act of Accession.

10. According to recital 6 of the MCV Decision, ‘the remaining issues in the accountability and efficiency of the judicial system and law enforcement bodies warrant the establishment of a mechanism for cooperation and verification of the progress of Romania to address specific benchmarks in the areas of judicial reform and the fight against corruption’.

11. Article 1 of the MCV Decision states that Romania is to report to the Commission every year on the progress made in addressing each of the benchmarks provided for in the annex to that decision. In accordance with Article 2, the Commission will communicate to the European Parliament and the Council its comments and findings on Romania’s report for the first time in June 2007, and thereafter, as and when required and at least every six months. Article 3 provides that the MCV Decision ‘shall enter into force only subject to and on the date of the entry into force of the Treaty of Accession’. Pursuant to Article 4, the MCV Decision is addressed to all Member States.

12. The Annex to the MCV Decision contains ‘the benchmarks to be addressed by Romania, referred to in Article 1’. The first, third and fourth benchmarks established therein are, respectively: to ‘ensure a more transparent, and efficient judicial process notably by enhancing the capacity and accountability of the Superior Council of Magistracy. …’; ‘building on progress already made, [to] continue to conduct professional, non-partisan investigations into allegations of high-level corruption’; and to ‘take further measures to prevent and fight against corruption, in particular within the local government’.

B. Romanian law

1. The Romanian Constitution

13. Article 115(4) of the Constituția României (Romanian Constitution) provides that ‘the Government can adopt emergency ordinances only in exceptional cases, the regulation of which cannot be postponed, and ha[s] the obligation to give the reasons for their emergency status within their contents’.

14. Under Article 133(1) of the Romanian Constitution, ‘the Superior Council of Magistracy is the guarantor of judicial independence’.

15. Article 132(1) of the Romania Constitution states that ‘public prosecutors shall carry out their activity in accordance with the principle of legality, impartiality and hierarchical control, under the authority of the Minister of Justice’.

2. Provisions relating to the Judicial Inspection

(a) Law No 317/2004

16. According to Article 65 of Law No 317/2004 on the SCM: ‘(1) The Judicial Inspection shall be established as a body having legal personality within the [SCM], with its seat in Bucharest, through the reorganisation of the Judicial Inspectorate. (2) The Judicial Inspection shall be headed by a chief inspector, assisted by a deputy chief inspector, both of whom shall be appointed following a competition organised by the [SCM]. (3) The Judicial Inspection shall act in line with the principle of operational independence, performing, through Judicial Inspectors appointed under the conditions laid down by law, analysis, verification and control tasks in specific fields of activity.’

17. According to Article 67 of Law No 317/2004: ‘1. The chief inspector and deputy chief inspector shall be appointed by the general assembly of the [SCM] from among judicial inspectors in office, following a competition consisting in the submission of a project relating to the exercise of the powers specific to the management position in question, and in a written test of knowledge in the field of management, communication, human resources and the candidate’s ability to make decisions and take responsibility and resilience to stress, and also a psychological test. 2. The competition will be organised by the [SCM], in accordance with the rules approved by decision of the general assembly of the [SCM], published in the Monitorul Oficial al României, part I. 3. The competitions for the positions of chief inspector and deputy chief inspector will be announced at least three months before they are held. 4. The mandate of the chief inspector and of the deputy chief inspector will be for a period of three years and may be renewed once, in accordance with the provisions of Article 67(1). 5. The chief inspector and the deputy chief inspector may be removed from office by the general assembly of the [SCM], where they fail to perform their management duties or perform them inappropriately. The removal from office will be decided upon on the basis of the annual audit report referred to in Article 68. 6. A removal decision taken by the general assembly of the [SCM] may be appealed, within 15 days from service of the decision, to the administrative and tax chamber of the Înalta Curte de Casație și Justiție [(High Court of Cassation and Justice, Romania)]. The appeal will suspend enforcement of the decision of the [SCM]. A decision taken on appeal shall be irrevocable.’

(b) Emergency Ordinance No 77/2018

18. Article I of Government Emergency Ordinance No 77/2018 supplementing Article 67 of Law No 317/2004 on the SCM (‘Emergency Ordinance No 77/2018’), ( 9 ) inserted two new paragraphs after Article 67(6) of Law No 317/2004: ‘7. Where the position of chief inspector or deputy chief inspector, as applicable, of the Judicial Inspection becomes vacant as a result of expiry of the mandate, the chief inspector or deputy chief inspector, as applicable, whose mandate has expired will act as substitute until the date on which that position is filled on the terms laid down by the legislation. 8. Where the mandate of the chief inspector ends for a reason other than expiry of the mandate, the deputy chief inspector will act as substitute until the date on which that position is filled on the terms laid down by the legislation. Where the mandate of the deputy chief inspector ends for a reason other than expiry of the mandate, a judicial inspector appointed by the chief inspector will act as substitute until the date on which that position is filled on the terms laid down by the legislation.’

19. Pursuant to Article II of Emergency Ordinance No 77/2018, Article 67(7) of Law No 317/2004 ‘will also apply to situations in which the position of chief inspector or of deputy chief inspector, as applicable, of the Judicial Inspection is vacant on the date on which this emergency ordinance comes into force’.

3. Provisions relating to the Section for the Investigation of Offences committed within the Judiciary

(a) Law No 207/2018

20. By Article I(45) of Law No 207/2018 amending and supplementing Law No 304/2004 on the organisation of the judiciary (‘Law No 207/2018’), ( 10 ) a new section governing the Section for the Investigation of Offences committed within the Judiciary (‘the SIOJ’) and containing Articles 881 to 889 was inserted after Article 88 of Law No 304/2004.

21. Article 881 of Law No 304/2004, as amended, reads as follows: ‘1. The [SIOJ] shall be established within the Parchetul de pe lângă Înalta Curte de Casație și Justiție [(Prosecutor’s Office attached to the High Court of Cassation and Justice)]. That section shall have exclusive jurisdiction in relation to criminal proceedings in respect of offences committed by judges and prosecutors, including military judges and prosecutors and those who are members of the [SCM]. 2. The [SIOJ] shall retain jurisdiction in relation to criminal proceedings where other persons are prosecuted in addition to those referred to in paragraph 1. … 4. The [SIOJ] shall be headed by a chief prosecutor of the section, assisted by a deputy chief prosecutor, appointed to those roles by the general assembly of the [SCM], subject to the conditions laid down in this Law. 5. The Prosecutor General of the Parchetul de pe lângă Înalta Curte de Casație și Justiție [(Prosecutor’s Office attached to the High Court of Cassation and Justice)] shall settle conflicts of jurisdiction between the [SIOJ] and the other structures or units of the Public Prosecutor’s Office. …’

22. According to Article 882 of Law No 304/2004, as amended: ‘1. The [SIOJ] shall conduct its activities in accordance with the principles of legality, impartiality and hierarchical control. 2. The delegation or secondment of prosecutors to the [SIOJ] shall be prohibited. 3. The [SIOJ] shall conduct its activities with a maximum of 15 prosecutors. 4. The number of positions in the [SIOJ] may be adjusted, depending on the volume of activity, by order of the Prosecutor General of the Parchetul de pe lângă Înalta Curte de Casație și Justiție [(Prosecutor’s Office attached to the High Court of Cassation and Justice)], at the request of the chief prosecutor of the section, with the assent of the general assembly of the [SCM].’

23. Articles 883 and 884 of Law No 304/2004, as amended, regulate, respectively the procedure of appointment of the chief and deputy prosecutors of the SIOJ, including the composition of the selection board of the chief prosecutor and the requirements for participation in the competition. In particular, the first paragraph of Article 883 states that ‘the chief prosecutor of the [SIOJ] shall be appointed to his role by the general assembly of the [SCM], following a competition consisting in the submission of a project relating to the performance of tasks specific to the management position in question, which is intended to evaluate the candidate’s management skills, effective management of resources, ability to make decisions and assume responsibilities, communication skills and resilience to stress, as well as his integrity, his activity as a prosecutor and his relationship with values specific to that profession, such as judicial independence and respect for fundamental rights and freedoms’. Furthermore, according to Article 883(7), ‘the removal of the chief prosecutor of the [SIOJ] from his position shall be decided by the general assembly of the [SCM] where he fails to perform the duties specific to his role or where he has been the subject of disciplinary action during the past three years, at the proposal of the board provided for in paragraph 2’. Pursuant to Article 883(8), ‘the chief prosecutor of the [SIOJ] shall be appointed to his role for a three-year term, renewable only once’.

24. Article 885 of Law No 304/2004, as amended, regulates the selection procedure of the prosecutors of the SIOJ and the rules for the competition, which includes an interview before the general assembly of the SCM, and an evaluation of the candidates’ activities. In accordance with paragraph 1, the prosecutors are appointed by the general assembly of the SCM following a competition, for a three-year term, with the option of renewal for a total maximum term of nine years. In line with paragraph 3, in order to be able to apply for that competition, prosecutors must satisfy the following cumulative conditions: ‘(a) they have not been the subject of disciplinary action during the past three years; (b) they are of at least the grade required to work in a prosecutor’s office attached to a court of appeal; (c) their actual length of service in the role of prosecutor is at least 18 years; (d) they have received appropriate professional training; (e) their moral conduct is beyond reproach’.

25. Article 888(1) establishes that the powers of the SIOJ include the power: (a) to institute criminal proceedings in respect of offences falling within its jurisdiction; (b) to refer matters to courts relating to the offences provided for in point (a); (c) to establish and update the database on offences falling within its jurisdiction; and (d) to exercise other powers conferred on it by law. According to Article 888(2), ‘the hearings in cases falling within the jurisdiction of the section shall be attended by prosecutors of the judicial section of the Parchetul de pe lângă Înalta Curte de Casație și Justiție [(Prosecutor’s Office attached to the High Court of Cassation and Justice)] or by prosecutors of the prosecutor’s office attached to the court before which the case is brought’.

26. Article III of Law No 207/2018 provides that: ‘(1) The [SIOJ] shall commence its activities within three months of the date on which this Law enters into force. (2) Cases falling within the jurisdiction of the [SIOJ] which are pending before any division of the prosecutor’s office and not resolved prior to the date on which the section becomes operational shall be referred to that section to be settled once it is operational.’

(b) Emergency Ordinance No 90/2018

27. Government Emergency Ordinance No 90/2018 on the measures relating to the rules governing the operation of the [SIOJ] (‘Emergency Ordinance No 90/2018’), ( 11 ) was adopted in order to make the SIOJ operational by the deadline established under Article III(1) of Law No 207/2018. According to its preamble, given that, on the date of its adoption, the SCM had not completed the procedure to render the SIOJ operational, the government deemed it necessary to adopt urgent legislative measures laying down a simple procedure, by way of derogation from the new Articles 883 to 885 of Law No 304/2004, for the provisional appointment of the chief prosecutor, the deputy chief prosecutor and at least one third of the prosecutors of the section.

28. Article I of Emergency Ordinance No 90/2018 modifies Article 882(3) of Law No 304/2004 as follows: ‘The [SIOJ] shall conduct its activities with 15 prosecutor positions.’

29. Article II of Emergency Ordinance No 90/2018 establishes a procedure derogating from Articles 883 to 885 of Law No 304/2004, for the purpose of the provisional appointment of the chief prosecutor and at least one third of the prosecutors of the SIOJ. In particular, according to paragraph 1 of that provision, prior to the completion of the competitions organised for the purpose of appointments to the position of chief prosecutor of the SIOJ and to the executive positions of prosecutor of that section, the functions of the chief prosecutor and at least one third of the executive roles of prosecutor are to be carried out provisionally by prosecutors who satisfy the conditions laid down by law for appointment to those positions, selected by the board responsible for organising the competition set up in accordance with Article 883(2) of Law No 304/2004. According to paragraph 2, the candidates are to be selected by the board responsible for organising that competition, which is to conduct its activities in the presence of at least three members, in accordance with a procedure which is to take place within five calendar days from the date on which it is triggered by the President of the SCM. Pursuant to paragraph 11: ‘With effect from the date on which the [SIOJ] becomes operational, that section shall take over the cases coming within its jurisdiction pending before the Direcţia Naţională Anticorupţie [(National Anti-corruption Directorate, Romania; ‘the DNA’)] and other divisions of the prosecution office, as well as the files of the cases relating to the offences provided for in Article 881(1) of Law No 304/2004, republished, as subsequently amended and supplemented, which were closed prior to the date on which that section became operational.’

(c) Emergency Ordinance No 92/2018

30. Government Emergency Ordinance No 92 of 15 October 2018 amending and supplementing certain normative acts in the field of justice (‘Emergency Ordinance No 92/2018’), ( 12 ) amended, inter alia, Law No 304/2004 by introducing a new paragraph 5 to Article 882, indicating that the prosecutors of the SIOJ have the status of seconded prosecutors for the duration of their services in that section. Article 885(5) is modified by providing that the interview within the selection procedure of the prosecutors of the SIOJ takes place before the selection board, and not before the general assembly of the SCM.

(d) Emergency Ordinance No 7/2019

31. Government Emergency Ordinance No 7 of 20 February 2019 laying down certain temporary measures regarding the competition for admission to the Institutul Național al Magistraturii [(National Institute of Magistracy, Romania)], the initial training of judges and prosecutors, the graduation exam of the National Institute of Magistracy, the internship and the capacity exam of trainee judges and prosecutors, and amending and supplementing Law No 303/2004, Law No 304/2004 and Law No 317/2004, ( 13 ) inter alia, amends and supplements Law No 304/2004. It adds a new paragraph 6 into its Article 881, according to which, when the Codul de procedură penală (Criminal Procedure Code) or any other special law refers to the ‘hierarchically superior prosecutor’ in cases relating to offences within the jurisdiction of the SIOJ, that expression is to be understood as referring to the chief public prosecutor of the SIOJ, including decisions adopted before that section became operational.

32. It also introduced, after paragraph 11 of Article 885, two new paragraphs (111) and (112), which modify the appointment procedure laid down in that provision. According to paragraph (111), the members of the selection board mentioned in Article 885 retain their vote in the general assembly of the SCM. Paragraph (112) provides that the selection boards provided for in Articles 883 and 885 respectively carry out their activity lawfully if at least three of their members are present.

33. That ordinance also amends Article 888, by providing for, in paragraph 1(d), a new power of the SIOJ, which consists in bringing or withdrawing actions in cases within the section’s jurisdiction, including cases pending before the courts or settled definitively before it becomes operational.

(e) Emergency Ordinance No 12/2019

34. Government Emergency Ordinance No 12 of 5 March 2019 amending and supplementing certain normative acts in the field of justice (‘Emergency Ordinance No 12/2019’), ( 14 ) modified Law No 303/2004 on the status of judges and prosecutors, introduced Articles 8810 and 8811 in Law No 304/2004. Articles 8810 provides for the secondment of judiciary police officers to the SIOJ, at the request of the chief prosecutor of this section, by decision of the Minister of the Interior. The duration of such secondments may be up to three years, renewable for the same period.

III. Facts, national proceedings and the questions referred

A. Case C‑83/19

35. On 27 August 2018, the Asociația ‘Forumul Judecătorilor din România’ (Romanian Association of Judges Forum, ‘the Association of Judges Forum’ or ‘the applicant’) submitted a request for disclosure of information of public interest to the Judicial Inspection (‘the defendant’). The requested information related to the activity of the Judicial Inspection during the period from 2014 to 2018. It concerned specifically statistical information about the cases dealt with by that body, the origin and result of disciplinary actions, as well as information concerning the conclusion of a protocol between the Serviciul Român de Informații (Romanian Intelligence Service) and the Judicial Inspection and the participation of that service in the investigations.

36. On 24 September 2018, considering that the defendant’s reply responded only partially to that request, the applicant brought an action against the defendant before the Tribunalul Olt (Regional Court, Olt, Romania). The applicant sought that the defendant be ordered to disclose certain information that had been the subject matter of the request of 27 August 2018.

37. In its defence, lodged on 26 October 2018, the defendant maintained that the applicant’s rights as an individual had not been infringed and that the action should be dismissed as unfounded. That defence was signed by Judge Lucian Netejoru.

38. Mr Netejoru was appointed Chief Inspector of the Judicial Inspection by decision No 702/2015 of 30 June 2015 of the general assembly of the SCM, with a mandate of three years (from 1 September 2015 to 1 September 2018). At the time of the lodging of the defence in the main proceedings, Mr Netejoru was acting in the capacity of interim chief inspector on the basis of Emergency Ordinance No 77/2018, adopted on 5 September 2018.

39. In its reply, the applicant submitted an objection alleging that it had not been proven that the signatory of the defence, Mr Netejoru, has powers of representation for the defendant for two reasons. First, no administrative act has been adopted by the authority competent to appoint the chief inspector of the Judicial Inspection, the general assembly of the SCM, attesting that the statutory requirements to act in that office ad interim have been complied with.

40. Second, the provisions of Emergency Ordinance No 77/2018 are unconstitutional. The applicant claimed that, by extending the mandates of the management of the Judicial Inspection by means of Emergency Ordinance No 77/2018, the government has encroached on the constitutional powers of the SCM. The applicant based its objection on the findings of the MCV Commission Report of 2018, according to which ‘the fact that the Minister of Justice decided to intervene, prolonging the mandates of the incumbent, could be seen to cut across the powers of the SCM’ and claims that Emergency Ordinance No 77/2018 infringes the guarantee of independence enshrined in the second subparagraph of Article 19(1) TEU. The applicant contended that, if it is established that the MCV, and the second subparagraph of Article 19(1) TEU, impose binding obligations on Romania and that it has failed to comply with such obligations, this will mean that Mr. Netejoru has no right to act as legal representative, thereby causing the defence produced in the case file (including the pleadings in defence, adduced evidence and objections) to be struck out.

41. The defendant submitted that Decision No 702/2015 of the SCM, appointing Mr Netejoru as chief inspector, appears on the Judicial Inspection’s website. Furthermore, the defendant invoked Emergency Ordinance No 77/2018. On that basis, the defendant claimed that the applicant’s objection should be rejected as unfounded.

42. In those circumstances, the Tribunalul Olt (Regional Court, Olt, Romania) decided to stay proceedings and refer the following questions to the Court of Justice for a preliminary ruling: ‘(1) Must the [MCV], established by [the MCV Decision], be considered to be an act of an institution of the European Union, within the meaning of Article 267 TFEU, interpretation by [the Court]? (2) Do the terms, nature and duration of the [MCV], established by [the MCV Decision], come within the scope of application of the [Treaty of Accession]? Are the requirements laid down in the reports prepared in the context of that mechanism binding on Romania? (3) Must the second subparagraph of Article 19(1) [TEU] be interpreted as meaning that it obliges the Member States to take the measures necessary to ensure effective legal protection in the fields covered by EU law, that is to say, guarantees of an independent disciplinary procedure for Romanian judges, by eliminating all risks of political influence over the conduct of those procedures, such as direct Government appointment of the management of the Inspecția Judiciară (Judicial Inspection, Romania), even on a provisional basis? (4) Must Article 2 [TEU] be interpreted as meaning that the Member States are obliged to comply with the rule of law criteria, also required in the reports prepared in the context of the [MCV], established by [the MCV Decision], in the case of procedures whereby the Government directly appoints the management of the Inspecția Judiciară (Judicial Inspection, Romania), even on a provisional basis?’

B. Case C‑127/19

43. The applicants in the present case are the Association of Judges Forum and the Asociația ‘Mișcarea pentru Apărarea Statutului Procurorilor’ (the Association ‘Movement for the Defence of the Status of Prosecutors’). On 13 December 2018, the applicants brought an action before the Curtea de Apel Pitești (Court of Appeal, Pitești, Romania), seeking the annulment of two decisions of the general assembly of the SCM: Decision No 910/19.09.2018, approving the rules on the appointment and removal of prosecutors in management roles in the SIOJ ( 15 ) and Decision No 911/19.09.2018 approving the rules on the appointment, continuation of functions and removal of prosecutors with executive roles in the SIOJ. ( 16 )

44. Those decisions were adopted on the basis of Law No 207/2018. Article 1(45) of that law inserted Articles 881 to 889 after Article 88 of Law No 304/2004, creating and establishing the functioning of the SIOJ. According to the new Article 885(12) ‘the procedures for the appointment to, continued performance of and removal from the management and executive roles in the section shall be detailed in rules approved by the general assembly of the [SCM]’. The two decisions, the annulment of which is sought in the present case, were approved on the basis of that provision.

45. The applicants claimed that those two administrative decisions are unconstitutional by reference to the provision of the Romanian Constitution according to which that Member State is obliged to fulfil its obligations under the Treaties to which it is a party (Article 11 and Article 148(2) of the Romanian Constitution). The applicants also claimed that certain provisions of the contested legislative acts are contrary to higher-ranking acts including the law, the Constitution and the TFEU. The applicants also made reference to the MCV. They take the view that the creation of the SIOJ directly affects the competences of the DNA, an entity that has achieved significant results under the MCV, according to the reports of the Commission. The creation of the SIOJ means that dozens of high-profile corruption cases pending before the DNA may be referred to the SIOJ simply through the introduction of fictitious complaints against a member of the judiciary, triggering the outright abolition of a significant part of the activity of the DNA.

46. By judgment No 33 of 23 January 2018, the Curtea Constituțională a României (Romanian Constitutional Court) examined the provisions of Law No 207/2018 in the context of the prior review of constitutionality. It ruled that the complaints concerning the effects of the creation of the SIOJ on the competences of the DNA were unfounded and that there were no binding acts of EU law capable of supporting the complaints of unconstitutionality based on Article 148(2) and (4) of the Constitution.

47. The referring court observes that the establishment of the SIOJ has been criticised in reports by the Group of States against Corruption (GRECO) and the European Commission for Democracy through Law (‘the Venice Commission’). The Commission has referred to those reports in connection with its MCV reports. The referring court states that since the MCV and the reports prepared in its context give rise to an obligation of compliance on the part of the State, such an obligation is not only borne by the legislative authority of the State, but also borne by the administrative authorities, in the present case, the SCM, which adopts the secondary implementing legislation, and by the courts.

48. Furthermore, the referring court notes that the Curtea Constituțională (Constitutional Court) declared in its judgment No 104 of 6 March 2018, that the meaning of the MCV Decision has not been interpreted by the Court ‘as regards its content, nature and duration, or as regards whether those aspects fall within the scope of application of the Treaty of Accession’. Therefore, it takes the view that the resolution of the dispute requires clarification as to the nature and legal force of those acts.

49. In those circumstances, the Curtea de Apel Pitești (Court of Appeal, Pitești, Romania) decided to stay proceedings and refer the following questions to the Court of Justice for a preliminary ruling: ‘(1) Must the [MCV], established by [the MCV Decision] 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]? (2) Do the terms, nature and duration of the [MCV], established by [the MCV Decision], fall within the scope of the [Treaty of Accession]? Are the requirements laid down in the reports prepared in accordance with that mechanism binding on Romania? (3) Must Article 2, in conjunction with Article 4(3) TEU be interpreted as meaning that the obligation on Romania to comply with the requirements laid down in the reports prepared in accordance with the [MCV], established by [the MCV Decision] forms part of the Member State’s obligation to comply with the principles of the rule of law? (4) Does Article 2 TEU, and more specifically the obligation to comply with the values of the rule of law, preclude legislation which establishes and organises the [SIOJ], within the Parchetul de pe lângă Înalta Curte de Casație și Justiție [(Prosecutor’s Office attached to the High Court of Cassation and Justice)], because of the possibility of indirect pressure being exerted on members of the judiciary? (5) Does the principle of judicial independence, enshrined in the second subparagraph of Article 19(1) TEU and in Article 47 of [the Charter], as interpreted by the case-law of [the Court] (judgment of 27 February 2018, Associação Sindical dos Juízes Portugueses, C‑64/16, EU:C:2018:117), preclude the establishment of the [SIOJ], within the Parchetul de pe lângă Înalta Curte de Casație și Justiție [(Prosecutor’s Office attached to the High Court of Cassation and Justice)], in the light of the rules governing the appointment/removal of prosecutors as members of that section, the rules governing the exercise of functions within that section and the way in which jurisdiction is established, in connection with the limited number of positions in that section?’

C. Case C‑195/19

50. The applicant, PJ, brought proceedings in relation to a tax dispute, which the defendant, who was a judge in that case, dismissed as unfounded. The applicant believed that the defendant has not fulfilled his legal obligation to state the reasons for his decision within the statutory 30-day period, thereby preventing the injured party from seeking legal remedies. The applicant therefore introduced a criminal complaint with the Parchetul de pe lângă Curtea de Apel București (Prosecutor’s Office attached to the Court of Appeal, Bucharest, Romania), requesting that the defendant be held criminally liable for the offence of abuse of office.

51. The prosecutor assigned to the case from the Parchetul de pe lângă Curtea de Apel București (Prosecutor’s Office attached to the Court of Appeal, Bucharest), decided to bring criminal proceedings, which were subsequently closed on the ground that the abuse of which the judge was accused was found not to exist. The applicant lodged a complaint against that decision to terminate proceedings with the higher-ranking prosecutor.

52. After the entry into force of Law No 207/2018, pursuant to Article III of that law and in accordance with the new Article 881 of Law No 304/2004, the Parchetul de pe lângă Curtea de Apel București (Prosecutor’s Office attached to the Court of Appeal, Bucharest), referred the complaint to the SIOJ, since it concerned a member of the judiciary. The deputy chief prosecutor of the SIOJ also dismissed the complaint as unfounded. The applicant brought an action before the Curtea de Apel București (Court of Appeal, Bucharest) (the referring court) against the original order of the Prosecutor’s Office attached to that court, as confirmed by the order of the deputy chief prosecutor of the SIOJ.

53. The referring court explains that it may either dismiss the action or uphold it. In the latter case, its decision will have the effect of setting aside the orders made by the prosecutors and referring the case back to the prosecutor. In accordance with Section 21 of Law No 304/2004, the higher-ranking prosecutor who examined the legality and the merits of the order made by the prosecutor assigned to the case was a member of the SIOJ. Therefore, if the action is upheld, both the prosecutor assigned to the case and the higher-ranking prosecutor will be members of the same special SIOJ.

54. In those circumstances, the referring court finds itself obliged to examine whether EU law precludes national legislation establishing the SIOJ. The national court recalls that the Commission’s MCV Report of 2018 made a recommendation to ‘suspend immediately the implementation of the Justice Laws and subsequent emergency ordinances’ and to ‘revise the Justice Laws taking fully into account the recommendations under the [MCV] and issued by the Venice Commission and GRECO’.

55. The national court notes that if Article 67(1) TFEU, the first sentence of Article 2 TEU and the first sentence of Article 9 TEU were found to preclude the national legislation at issue, it would be required to declare all procedural acts drawn up by the SIOJ in the main proceedings to be null and void. The referring court will also need to take account of the answer of the Court when appointing the division of the competent prosecutor’s office, in the event that the action is upheld.

56. In those circumstances, the Curtea de Apel București (Court of Appeal, Bucharest) decided to stay proceedings and refer the following questions to the Court of Justice for a preliminary ruling: ‘(1) Are the [MCV], established by [the MCV Decision], and the requirements laid down in the reports prepared in the context of that mechanism binding on Romania? (2) Do Article 67(1) TFEU and both the first sentence of Article 2 TEU and the first sentence of Article 9 TEU preclude national legislation establishing a section of the prosecution office which has exclusive jurisdiction to investigate any type of offence committed by judges or prosecutors? (3) Does the principle of the primacy of European law, as enshrined in the judgment of 15 July 1964, Costa, 6/64, EU:C:1964:66, and by subsequent settled case-law of the [Court], preclude national legislation which allows a politico-judicial institution, such as the Curtea Constituțională a României (Romanian Constitutional Court), to infringe the aforementioned principle by means of decisions which are not open to appeal?’

D. Case C‑291/19

57. By four criminal complaints filed in December 2015 and February 2016, SO, the applicant, reported that four prosecutors had committed the offence of abuse of office, and that a lawyer, a member of the Brașov Bar, had committed the offence of trading in influence. Subsequently, the applicant filed a criminal complaint against two judges of the Judecătoria Brașov (Court of First Instance, Brașov, Romania) and the Tribunalul Brașov (Regional Court, Brașov, Romania), claiming that they were part of a criminal organisation and that they have found against him in various sets of proceedings.

58. By order of 8 September 2017, the Section for combating offences relating to corruption offences within the DNA ordered that the file be closed.

59. The applicant filed a complaint against the order of 8 September 2017 with the hierarchically superior prosecutor, the chief public prosecutor of the Section for combating offences relating to corruption offences within the DNA. The latter dismissed that complaint by order of 20 October 2017 as unfounded.

60. On 11 September 2018, the applicant filed a complaint against the original order, as confirmed the order of 20 October 2017 before the Curtea de Apel Brașov (Court of Appeal, Brașov, Romania), the referring court.

61. Since the proceedings before it require a prosecutor to participate in the hearings, the referring court states that a prosecutor of the DNA did initially participate in the hearings. Following the entry into force of the amendments to Law No 304/2004 and judgment No 3 of the Înalta Curte de Casație și Justiție (High Court of Cassation and Justice) of 26 February 2019, the DNA prosecutor was replaced at the hearing by a prosecutor from the Parchetul de pe lângă Curtea de Apel Brașov (Prosecutor’s Office attached to the Court of Appeal, Brașov, Romania).

62. The referring court explains that the continuation of the main proceedings involves the participation of the prosecutors of the SIOJ. It also states that, if it were found that the complaint made by the applicant is well founded, it would have to send the case to the SIOJ for prosecution. In those circumstances, the referring court considers that it is necessary to establish whether EU law precludes national legislation establishing the SIOJ, having regard to the Commission’s MCV Report of 2018. More specifically, in case the Court were to consider that the MCV reports are binding, the national court wishes to know the scope of that obligation and whether it covers only the conclusions of such reports or whether the national court also needs to take into account the findings of the report, including those coming from the documents of the Venice Commission and the GRECO.

63. For those reasons, the Curtea de Apel Brașov (Court of Appeal, Brașov) decided to stay proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: ‘(1) Must the [MCV], established by [the MCV Decision], 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]? (2) Are the requirements set out in the reports drawn up under that mechanism binding on Romania, in particular (but not only) as regards the need to make legislative amendments which comply with the conclusions of the [MCV] and with the recommendations made by the Venice Commission and the [GRECO]? (3) Must Article 2, in conjunction with Article 4(3), TEU be interpreted as meaning that the obligation on Romania to comply with the requirements laid down in the reports prepared in accordance with the [MCV], established by [the MCV Decision], forms part of the Member State’s obligation to comply with the principles of the rule of law? (4) Does the principle of judicial independence, enshrined in the second subparagraph of Article 19(1) TEU and in Article 47 of [the Charter], as interpreted by the case-law of [the Court] (judgment of 27 February 2018, Associação Sindical dos Juízes Portugueses, C‑64/16, EU:C:2018:117), preclude the establishment of [the SIOJ], within the Parchetul de pe lângă Înalta Curte de Casație și Justiție [(Prosecutor’s Office attached to the High Court of Cassation and Justice)], in the light of the rules governing the appointment/removal of prosecutors as members of that section, the rules governing the exercise of functions within that section and the way in which jurisdiction is established, in connection with the limited number of positions in that section? (5) Does [the second paragraph of] Article 47 of [the Charter] relating to the right to a fair trial by means of a hearing within a reasonable time, preclude the establishment of [the SIOJ] within the Parchetul de pe lângă Înalta Curte de Casație și Justiție [(Prosecutor’s Office attached to the High Court of Cassation and Justice)], in the light of the rules governing the exercise of functions within it and the way in which jurisdiction is established, in connection with the limited number of positions in that section?’

E. Case C‑355/19

64. The applicants in this case are the Association of Judges Forum, the the Association ‘Movement for the Defence of the Status of Prosecutors’ and OL, a physical person (‘the applicants’).

65. On 23 January 2019, the applicants brought before the Curtea de Apel Pitești (Court of Appeal, Pitești), an action for annulment of Order No 252 of 23 October 2018, issued by the Parchetul de pe lângă Înalta Curte de Casaţie şi Justiţie — Procurorul General al României (Prosecutor General of the Prosecutor’s Office attached to the High Court of Cassation and Justice; ‘the defendant’). ( 17 ) That order concerns the organisation and functioning of the SIOJ. It was issued on the basis of Law No 207/2018, which established the SIOJ, pursuant to Article II (10) and (11) of Emergency Ordinance No 90/2018.

66. The applicants, first, claimed that that order is unconstitutional by reference to the provision of the Romanian Constitution according to which that Member State is obliged to fulfil its obligations under the Treaties to which it is a party (Article 11 and Article 148(2) of the Romanian Constitution). Second, they criticised the text of the order on the ground that some of its provisions are contrary to certain higher-ranking legislative acts (the law, the Constitution, the Treaty on European Union). More specifically, the applicants claimed that that order does not take account of the recommendations set out by the Commission in the reports drawn up in the context of the MCV.

67. In those circumstances, and following a reasoning similar to that put forward by the referring court in Case C‑127/19, the Curtea de Apel Pitești (Court of Appeal, Pitești) decided to stay proceedings and refer the following questions to the Court of Justice for a preliminary ruling: ‘(1) Must the [MCV] established by [the MCV Decision] be regarded as an act of an institution of the Union, within the meaning of Article 267 TFEU, which is amenable to interpretation by [the Court]? (2) Do the terms, nature and duration of the [MCV] established by [the MCV Decision] fall within the scope of the [Treaty of Accession]? Are the requirements set out in the reports drawn up in the context of that mechanism binding on the Romanian State? (3) Must Article 2 [TEU] be interpreted as meaning that the Member States are obliged to comply with the criteria of the rule of law, also requested in the reports drawn up in the context of the [MCV] established by [the MCV Decision], in the event of the creation, as a matter of urgency, of a section of the prosecutor’s office charged with the exclusive investigation of offences committed by members of the judiciary, which gives rise to particular concerns as regards the fight against corruption and may be used as an additional means of intimidating members of the judiciary and putting pressure on them? (4) Must the second subparagraph of Article 19(1) [TEU] be interpreted as meaning that the Member States are obliged to adopt the necessary measures to ensure effective legal protection in the fields covered by EU law through the removal of any risk of political influence on criminal proceedings before certain judges, [in] the event of the creation, as a matter of urgency, of a section of the prosecutor’s office charged with the exclusive investigation of offences committed by members of the judiciary, which gives rise to particular concerns as regards the fight against corruption and may be used as an additional means of intimidating members of the judiciary and putting pressure on them?’

F. The procedure before the Court

68. Cases C‑83/19, C‑127/19 and C‑195/19 were joined by decision of the President of the Court of 21 March 2019. That decision rejected the request of the referring courts in those cases to subject them to the expedited procedure pursuant to Article 105(1) of the Rules of Procedure of the Court of Justice, but accorded all three cases priority treatment pursuant to Article 53(3) of the Rules of Procedure.

69. By letters of 11 and 20 February 2019, the applicants in Cases C‑83/19 and C‑127/19 respectively requested the adoption of interim measures under Article 279 TFEU and Article 160(2) and (7) of the Rules of Procedure. The Court replied that it lacked jurisdiction for the adoption of such measures in preliminary ruling proceedings.

70. Following the decision of 8 February 2019 of the Curtea de Apel Craiova (Court of Appeal, Craiova, Romania), the Tribunalul Olt transferred the main proceedings in Case C‑83/19, by order of 12 February 2019, to the Tribunalul Mehedinţi (Regional Court, Mehedinţi, Romania). The Tribunalul Olt (Regional Court, Olt) nonetheless informed the Court that all the acts of procedure, including the preliminary reference, have been maintained. Following the decision of 10 June 2020 of the Înalta Curte de Casaţie şi Justiţie (High Court of Cassation and Justice), the Curtea de Apel Pitești (Court of Appeal, Pitești) transferred the main proceedings in Case C‑127/19 to the Curtea de Apel Alba Iulia (Court of Appeal, Alba Iulia, Romania). The Court de Apel Pitești (Court of Appeal, Pitești) informed the Court that all the acts of procedure have been maintained.

71. The application of the expedited procedure was also requested by the referring court in Case C‑355/19. It was rejected by decision of the President of the Court of 27 June 2019. Priority treatment was accorded in that case as well as in Case C-291/19 by decision of the President of the Court of 18 September 2019.

72. Written submissions have been made in Cases C‑83/19, C‑127/19 and C‑195/19 by the Judicial Inspection; the Governments of Belgium, the Netherlands, Poland and Romania, as well as by the Commission. The Swedish Government has submitted written observations in Cases C‑83/19 and C‑127/19. The SCM and the Association ‘Movement for the Defence of the Status of Prosecutors’ have submitted written observations in Case C‑127/19.

73. In Case C‑291/19, written submissions have been presented by the Governments of the Netherlands, Poland, Romania and Sweden, as well as by the Commission.

74. In Case C‑355/19, the Association of Judges Forum, the Prosecutor General of the Prosecutor’s Office attached to the High Court of Cassation and Justice (‘the Prosecutor General’), the Governments of the Netherlands, Poland, Romania and Sweden, as well as the Commission have presented written submissions.

75. A joint hearing was held on 20 and 21 January 2020 in which the following interested parties presented oral argument: the Association of Judges Forum, the Association ‘Movement for the Defence of the Status of Prosecutors’, the Superior Council of Magistracy (SCM), OL, the Prosecutor General, the Governments of Belgium, Denmark, the Netherlands, Romania and Sweden, and the Commission.

IV. Analysis

76. This Opinion is structured as follows. I shall start by examining the objections of inadmissibility raised in the different cases before the Court (A). Next, I shall set out the applicable EU legal framework and the yardsticks against which the analysis in the present cases ought to be carried out (B). Finally, I shall carry out the assessment of the national provisions at issue (C).

A. Admissibility of the questions referred

77. Various interested parties, having presented observations in the various cases, have argued that the Court should not give a reply to some or all of the questions referred for a preliminary ruling in the present cases. The main ‘themes’ raised with regard to the different cases could essentially be ‘regrouped’ as covering objections relating to the lack of competence of the Union in the fields covered by the questions referred, in particular, (i) the internal organisation of the justice systems; (ii) the lack of jurisdiction of the Court to interpret the MCV Decision; (iii) the lack of relevance of the responses to be given by the Court for the purposes of resolving the cases before the referring courts; and (iv) the fact that some of the questions referred have become devoid of purpose.

78. All those objections have been put forward as objections to the admissibility of the questions referred. However, it appears to me that the arguments relating (i) to the lack of EU competence in the field of judicial organisation of the Member States, and (ii) to the legal nature of the MCV concern, in reality, the assessment of the jurisdiction of the Court.

79. Moreover, those elements of jurisdiction largely overlap with the material analysis of those provisions. Whether the national provisions at issue in the present cases, concerned with the organisation of the judiciary, fall within the scope of EU law, is inextricably linked to the answers to be given to the questions referred, which relate specifically to the scope, requirements and effects of Article 2 and Article 19(1) TEU as well as Article 47 of the Charter. ( 18 ) As the Court has noted in A.K. and Others with regard to similar arguments, those questions concern the interpretation of the provisions at issue and, for that reason, they fall within the jurisdiction of the Court under Article 267 TFEU. ( 19 )

80. For those reasons, I shall deal with both of these objections to the jurisdiction of the Court below in Section B of this Opinion, in which I will set out the provisions which are in fact applicable in the present cases and the type of examination required. In this section, Section A of this Opinion, I shall address only what appear, in fact, to be objections of inadmissibility, raised by various parties with regard to the individual questions raised in each of the cases.

81. I note that the Romanian Government submitted in its written observations that the questions referred were, for the most part, inadmissible in all the cases before the Court. ( 20 ) However, at the hearing, the position of that government changed considerably, which I understand was due to the fact that following the subsequent change in the government at national level, the policy of the new government also changed. ( 21 )

82. However, the Romanian Government did not expressly withdraw its written submissions at the hearing and the arguments made therein concerning admissibility. Therefore, I consider that the Court remains obliged to reply to the arguments raised by the Romanian Government in its written submissions regarding admissibility.

83. As a joint prelude to the individual cases in this section, it is useful to recall that, in accordance with settled case-law, it is solely for the national court, which assumes responsibility for the judicial decision in the main proceedings, to determine both the need for a preliminary ruling and the relevance of the questions referred. The Court is in principle bound to give a ruling whenever the questions concern the interpretation of EU law provisions. Questions referred for a preliminary ruling enjoy a presumption of relevance. As such, the Court refuses to give a ruling only in limited circumstances, for instance, where the requirements of Article 94 of the Rules of Procedure are not satisfied or where it is obvious that the interpretation of EU law concerned bears no relation to the facts, or where the questions are hypothetical. ( 22 ) It is in the light of those principles that I shall assess the objections relating to admissibility in the present cases.

1. C‑83/19

84. Two sets of objections have been raised against the admissibility of this case. The first relates to the lack of necessity or relevance of the questions for the main proceedings. The second relates to the claim that the case has lost its object.

85. First, the Judicial Inspection has argued that the questions raised in Case C‑83/19 are not relevant for the adjudication of the main proceedings. That argument was also put forward, with regard to the first and second questions, by the Romanian Government in its written observations, in addition to pointing out that the referring court had not explained the reasons why it considered the reference for a preliminary ruling to be necessary.

86. Second, the Commission has submitted that the main proceedings have lost their object and therefore the questions are no longer relevant. It maintains that, on 15 May 2019, Mr Netejoru was appointed by the plenary assembly of the SCM as Chief Inspector of the Judicial Inspection for a new three-year mandate, on the basis of the provisions of Law No 317/2004. The Commission considers that the questions referred have therefore lost their relevance. The ex post appointment of the same person, following a legally organised competition, will bring to an end to any interference in the independence of the judiciary by the executive power.

87. Regarding his lack of capacity to represent the Judicial Inspection before the 15 May 2019, including the date of the submissions made by Mr Netejoru on behalf of the Judicial Inspection, the Commission considers that the situation could be remedied through Article 82(1) of the Codul de procedură civilă al României (Romanian Code of Civil Procedure). That provision states that ‘where the court finds that it has not been proven that the person who has acted on behalf of a party has powers of representation, the court will grant a short period to remedy the situation …’. As a consequence, the questions referred for a preliminary ruling are hypothetical and should be dismissed as inadmissible.

88. In my view, none of the objections of inadmissibility are convincing.

89. First, the referring court has explained the relevance of the questions referred for the purposes of the main proceedings. According to the order for reference, the national court must rule as a preliminary matter, pursuant to national procedural provisions, on the procedural objections that may render the hearing of evidence or the examination of substance redundant. ( 23 ) At this stage, the main proceedings are halted precisely because of that procedural objection, based on the fact that Mr Netejoru, who, in his capacity as Chief Inspector, pursuant to Emergency Ordinance No 77/2018, signed the defence as representative of the Judicial Inspection, lacked the relevant representation powers.

90. It is rather clear what sort of ‘domino effect’ any response that may be given by the Court could have on the national proceedings. If the preliminary objection were to be upheld by the referring court, that would lead to excluding the pleading of the defence and, by implication, the evidence and objections pleaded therein. That decision would clearly have repercussions on the adjudication in the main action in the national proceedings, concerning the application of the Association of Judges Forum seeking an order requiring the disclosure of certain information by the Judicial Inspection.

91. I acknowledge that the content of the questions referred raised in this case is indeed somewhat remote from the main subject matter of the main proceedings, which remains the action concerning the request for information. Moreover, to open up substantively within such a main action the whole issue of a potentially problematic appointment of the chief inspector may appear somewhat contrived.

92. However, the dispute, for which the opinion of this Court is sought, is the preliminary issue concerning Mr Netejoru’s quality of representation, raised as an incident in the main proceedings. The fact that those proceedings concern a preliminary matter does not mean a lack of relevance and, therefore, the inadmissibility of the reference for preliminary ruling. Indeed, the Court, in assessing whether a question referred is necessary to enable a referring court to ‘give judgment’ within the meaning of the second paragraph of Article 267 TFEU, has adopted a broad interpretation of that concept. It notably encompasses ‘the whole of the procedure leading to the judgment of the referring court, in order that the Court of Justice is able to interpret all procedural provisions of European Union law that the referring court is required to apply in order to give judgment’. ( 24 ) That interpretation has made it possible for procedural questions regarding the entire process of creating the judgment to be regarded as admissible, including all issues relating to the responsibility for the costs of proceedings, or taking of evidence. ( 25 ) Moreover, in the past, the Court has shown itself to be traditionally rather generous in not examining too closely the substantive proximity of the issues raised with regard to main proceedings. ( 26 )

93. Second, the objection raised by the Commission must also be dismissed. Admittedly, according to established case-law, the preliminary ruling procedure presupposes that a dispute is pending before the national court. ( 27 ) This means that, if the object of the dispute has disappeared, thereby making the questions raised hypothetical or unrelated to an actual dispute, the Court is to decide that there is no need to give a ruling on the request for a preliminary ruling. ( 28 )

94. However, in the present case, there is nothing in the file before this Court to indicate that either the preliminary objection in the main proceedings, or the main proceedings themselves, have lost their object. There is no confirmation that the subsequent lawful appointment of Mr Netejoru to the position of chief inspector would have any effect on the validity of the acts of representation carried out before that appointment.

95. While valuing the assistance of the Commission in identifying the potentially applicable national law on the matter, it is not for the Court to interpret such provisions. Moreover, from the order for reference, it appears that the referring court considers itself obliged to rule on the procedural objection submitted by the applicant, and that it must assess the legality of the representation of the Judicial Inspection at the time when the defence was lodged. ( 29 ) From that point of view, the correctness of which is only for the national court(s) to ascertain, the fact that a given person was appointed to the same position after that point in time may not have the effect of remedying the previous lack of powers of representation.

96. In the light of the previous considerations, I am of the view that the questions referred in Case C‑83/19 are indeed admissible.

2. C‑127/19 and C‑355/19

97. In Case C‑127/19 the Romanian Government submitted in its written observations that the first, second and third questions, concerned with the legal nature and effects of the MCV Decision, have no connection with the subject matter of the main proceedings. Similarly, but raising a general objection to the admissibility of all the questions referred in Case C‑127/19, the SCM maintained that the questions raised by the referring court do not concern the interpretation of EU law, but instead ask the Court to apply EU law to the case at issue and seek a consultative opinion on national provisions. At the hearing, the SCM added that the questions are irrelevant for the subject matter of the main proceedings, which concerns the legality of the two administrative acts adopted by the SCM and not the law establishing the SIOJ. Since the referring court does not have jurisdiction regarding the analysis of the national law, which is a matter pending before the Curtea Constituțională a României (Romanian Constitutional Court), in its view, the questions must be declared inadmissible.

98. In Case C‑355/19, the Romanian Government submitted in its written observations that the referring court has not shown the relevance of the first, second and fourth questions for the purposes of the main proceedings.

99. Case C‑127/19 is concerned with the annulment of Decisions No 910 and No 911 of the general assembly of the SCM of 19 September 2018. The referring court explains that those acts were adopted with a view to implementing the amendments introduced by Law No 207/2018, and that those acts aim therefore at facilitating the functioning of the SIOJ. In that context, the referring court considers it necessary to clarify the interpretation of the MCV, Article 2, Article 4(3) and the second subparagraph of Article 19(1) TEU, and Article 47 of the Charter with a view to ruling on the compatibility of those provisions with the establishment of the SIOJ by Law No 207/2018. That law constitutes the legal basis for the acts, the annulment of which is sought in the main proceedings.

100. Those explanations show that there is a clear functional link between the acts at issue in the main proceedings and Law No 207/2018 establishing the SIOJ. A finding that the establishment of the SIOJ is incompatible with EU law will have an inevitable impact on the assessment of the administrative acts that are at issue in the main proceedings. Put simply, if the basis is found to be incompatible, so too will the subsequent acts implementing that basis.

101. This clearly shows, to my mind, the relevance of the questions referred raised in Case C‑127/19 for the purposes of the action for annulment before the referring court in the main proceedings. The objections of inadmissibility raised in this case are therefore to be dismissed.

102. In a similar vein, Case C‑355/19 concerns the annulment of an administrative act adopted with a view to implementing the amendments introduced by Law No 207/2018 and to facilitating the functioning of the SIOJ. In that context, the referring court considers it necessary to clarify the interpretation of the MCV, Article 2, Article 4(3) and Article 19(1) TEU and Article 47 of the Charter with a view to ruling on the compatibility of those provisions with the establishment of the SIOJ by Law No 207/2018, which is at the origin of the adoption of the acts, the annulment of which is sought in the main proceedings.

103. These questions are admissible for the same reasons as those in the Case C‑127/19: it is again the implementation logic. If in fact the basis, namely the establishment of the SIOJ by Law No 207/2018, were to be declared incompatible, the same fate would befall the administrative act at issue in the main proceedings adopted for its implementation.

104. As a result, the first, second and fourth questions in Case C‑355/19 are also admissible.

3. C‑195/19 and C‑291/19

105. In its written submissions, the Romanian Government contested the admissibility of the first question in Case C‑195/19 and the first, second, and third questions in Case C‑291/19. In the view of that government, those questions concerning the legal nature of the MCV Decision and the reports of the Commission are not relevant for the purposes of the main proceedings in those cases.

106. Case C‑195/19 concerns an ongoing case where the criminal liability of a judge is at issue. The referring court explains that, if the action is upheld, both the prosecutor assigned to the case and the higher-ranking prosecutor supervising that prosecutor will be members of the same special SIOJ. It is in that context that the referring court finds itself obliged to examine whether EU law precludes national legislation establishing the SIOJ. It is for that purpose it enquires about the compatibility of that national legislation with the MCV and, in the second question in Case C‑195/19, also with Article 2 TEU. The national court notes that, if it were found that EU law precludes the national legislation establishing the SIOJ, then such a finding would lead it to annul all the procedural acts drawn up by the SIOJ in the main proceedings. The referring court would also need to take account of the answer of the Court when appointing the division of the competent prosecutor’s office, in the event that the action is upheld.

107. These reasons show clearly the relevance of the first and second questions in Case C‑195/19 for the main proceedings, in as much as the second question concerns Article 2 TEU.

108. With regard to the admissibility of the first, second and third questions in Case C‑291/19, the referring court has justified the relevance of the questions referred in that case by the fact that the continuation of the main proceedings involves the participation of the prosecutors of the SIOJ. It is therefore necessary to establish whether or not EU law precludes national legislation establishing the SIOJ. If the referring court were to find that the complaint made by the applicant is well founded, the referring court would have to send the case to the SIOJ for prosecution.

109. In the light of those clarifications, for the same reasons just given in connection to question one and partially question two in Case C‑195/19, I consider that the first, second and third questions in Case C‑291/19 are also admissible.

110. I do, however, agree with the Romanian Government that the second question in Case C‑195/19, in so far at it refers to Article 9 TEU and Article 67(1) TFEU, as well as the third question in that case, must be declared inadmissible. With regard to the third question in Case C‑195/19, the Romanian Government submitted that a question asking whether the principle of primacy precludes national legislation allowing the Curtea Constituțională (Constitutional Court) to disregard that principle by means of decisions which are not open to appeal has a ‘theoretical and general’ character and, as such, has no connection with the subject matter of the main proceedings.

111. With regard to the second question in Case C‑195/19, the order for reference does not contain any explanation showing how specifically Article 9 TEU (proclaiming the principle of equality of citizens of the Union), and Article 67(1) TFEU (stating that the Union shall constitute an area of freedom, security and justice), could be relevant for the case at hand. In as far as it invokes those provisions, that question does not comply with the requirements set out in Article 94 of the Rules of Procedure. Indeed, according to settled case-law, it is essential that the national court gives, at the very least, some explanation of the reasons for the choice of the EU law provisions which it seeks to have interpreted and some explanation of the link it establishes between those provisions and the national legislation applicable to the proceedings pending before it. ( 30 )

112. The third question in Case C‑195/19 suffers, from my point of view, from the same defect, while adding another one of its own. First, that question, as the Romanian Government correctly pointed out, is also far from complying with the requirements of Article 94 of the Rules of Procedure. That question asks, in substance, whether the principle of primacy precludes national legislation which allows the Curtea Constituțională (Constitutional Court), in essence, to disregard that principle by means of decisions which are not open to appeal. However, the order for reference does not at any point mention the specific provisions or why they are problematic. The referring court has simply quoted some excerpts of judgments of the Curtea Constituțională (Constitutional Court) in which that court takes a position on the MCV in various cases, without providing any context or explanation on whether those judgments concern any national provisions connected to the main proceedings.

113. Second, as formulated, that question also contains an (indeed not entirely flattering) implicit evaluation of the case-law of the Curtea Constituțională (Constitutional Court), inviting the Court to endorse a certain reading of that case-law in various unrelated proceedings from which very little information is (selectively) made available, and in so doing, question the institutional authority of a higher national court. That is, however, certainly not the role of this Court in the preliminary ruling procedure. ( 31 )

114. As a result, I consider that the second question referred in Case C‑195/19, in so far at it refers to Article 9 TEU and Article 67(1) TFEU, as well as the third question referred in the same case, are inadmissible.

4. Interim conclusion on admissibility

115. I consider that the second preliminary question in Case C‑195/19, to the extent that it refers to Article 9 TEU and Article 67(1) TFEU, and the third preliminary question in that case, must be declared inadmissible. The rest of the questions referred raised by the present five cases are, to my mind, admissible.

116. However, for the sake of clarity, I would regroup all the questions posed by the present cases into issues concerning applicable law which, once settled, will provide the framework for the two substantive elements addressed by the present cases.

117. First, the referring courts in the present cases have formulated their questions with regard to a number of acts of EU law. On the one hand, there are questions concerning the nature, legal value and effects of the MCV, ( 32 ) and whether the national rules at issue fall within the scope of that mechanism. ( 33 ) On the other hand, the questions also relate to the interpretation of Article 47 of the Charter, as well as to the second subparagraph of Article 19(1) TEU and to Article 2 and Article 4(3) TEU. ( 34 )

118. Second, those questions concerning the appropriate legislative framework of analysis are raised with the view to obtaining an interpretation of EU law which will enable the national courts to assess the compatibility of the national provisions at issue, concerning the interim appointment of the management of the Judicial Inspection ( 35 ) and the establishment of the SIOJ, ( 36 ) with those EU rules.

119. In the rest of this Opinion, I shall therefore first examine the relevant EU law provisions (the MCV Decision, Article 47 of the Charter, and Article 2 and Article 19(1) TEU) and the yardsticks that they establish for the purposes of the present cases (B). I will then apply the requirements stemming from those provisions, in the context of the national provisions at issue, in order to provide assistance to the referring courts on the substantive issues pending before them (C).

B. Relevant EU law and yardsticks

1. The MCV

120. The various orders for reference in all the cases examined in this Opinion have raised several questions concerning the nature, legal value and effects of the MCV Decision and of the reports adopted on its basis.

121. First, are the MCV Decision and the Commission’s reports adopted on its basis acts of EU institutions for the purposes of Article 267 TFEU and may the Court interpret them? ( 37 ) Second, do the content, nature and duration of the MCV fall within the scope of the Treaty of Accession? ( 38 ) Third, the referring courts wish to know whether the requirements laid down by the MCV ( 39 ) and by the Commission’s reports in the context of the MCV are binding. ( 40 ) Fourth, it is also asked whether Article 2 TEU must be interpreted, in conjunction with Article 4(3) TEU, as meaning that the obligation of Romania to comply with the requirements laid down in the MCV reports forms part of the obligation to comply with the rule of law, ( 41 ) and whether that obligation covers the temporary appointment of the management of the Judicial Inspection, ( 42 ) and the establishment of the SIOJ. ( 43 )

122. I will address all of those questions in turn as follows. First, I shall start by confirming that the MCV Decision and the reports adopted by the Commission on its basis are indeed acts of the European Union (a). Second, I will examine whether the Treaty of Accession constitutes the proper legal basis of the MCV Decision (b). Third, I will turn to the issue of legal value and effects of the MCV and of the Commission’s reports adopted within its framework (c). Fourth, I will conclude this section by examining whether the national measures at issue in the present cases fall within the scope of the MCV (d).

(a) Are the MCV Decision and the MCV reports acts of the European Union?

123. All the interested parties, having presented observations on this point, ( 44 ) with the exception of the SCM, agree that that question is to be answered in the affirmative. The SCM submitted in its written observations that the MCV Decision was an instrument of cooperation of the Commission and not a legislative act that could be subject to the jurisdiction of the Court under Article 267 TFEU. However, at the hearing, that body stated that the MCV Decision is a binding act, even though the recommendations it contains are not binding.

124. In my view, there is no doubt that, notwithstanding the question of the potentially binding character of the MCV Decision and the reports adopted on its basis, both are acts of EU law and that the Court has jurisdiction to interpret them within the framework of the preliminary ruling procedure under Article 267 TFEU.

125. First, the MCV Decision is a decision for the purposes of the fourth paragraph of Article 288 TFEU. It was adopted by the Commission on the basis of Articles 37 and 38 of the Act of Accession. I fail to see how it could not, therefore, be an ‘act of the institutions’ for the purposes of Article 267 TFEU.

126. Second, the same is true of the reports adopted by the Commission on the basis of the MCV Decision. Again, leaving aside the issue of their (non-)binding nature, which is a different question, Article 267 TFEU confers on the Court jurisdiction to give preliminary rulings on the validity and interpretation of all acts of the EU institutions without exception. ( 45 ) The jurisdiction of the Court is therefore not limited to those acts having binding effects, ( 46 ) as has been confirmed by the various occasions in which the Court ruled on the interpretation of recommendations or other, atypical soft-law acts in preliminary rulings. ( 47 )

127. As a result, the first question in Cases C‑83/19, C‑127/19, C‑291/19 and C‑355/19 should be answered that the MCV Decision, as well as the reports established by the Commission on that basis, are acts of an EU institution within the meaning of Article 267 TFEU and, therefore, amenable to interpretation by the Court under that provision.

(b) Is the Treaty of Accession a proper legal basis?

128. Several of the questions referred ask whether the ‘terms, nature and duration’ of the MCV fall ‘within the scope of the Treaty of Accession’. ( 48 ) To my mind, these questions essentially seek clarification as to whether the MCV Decision, in its current nature, scope, and form, could validly have been based on the Treaty of Accession. Thus formulated, the question of interpretation comes rather close to a non-acknowledged challenge to the validity of an EU law act. ( 49 )

129. On the basis of the arguments made in the course of these proceedings, I see no reason why the current MCV Decision could not have been adopted on the basis of the Treaty of Accession and the Act of Accession of Romania and Bulgaria. That is so with regard to its formal legal basis (1), its content and objectives (2) and its duration (3).

(1) Formal legal basis

130. As regards its formal legal basis, the MCV Decision was adopted as a safeguard measure on the basis of Articles 37 and 38 of the Act of Accession. Article 4(3) of the Treaty of Accession empowers EU institutions to adopt the measures provided for, amongst others, in Articles 37 and 38 of the Act of Accession, before the accession of the Member States concerned. According to those provisions, known as ‘safeguard clauses’, those measures enter into force only subject to and on the date of the entry into force of the Treaty of Accession. Article 2(2) of the Treaty of Accession states that the provisions of that act form an integral part of that treaty.

(2) Content and objectives

131. From the point of view of the content of the measures that may be taken on the basis of Articles 37 and 38 of the Act of Accession, those provisions empower the Commission to adopt, at the request of a Member State or on its own initiative, respectively, ‘appropriate measures’ in two situations.

132. First, Article 37, the ‘internal market safeguard clause’, may be triggered if Romania fails to implement the commitments undertaken in the accession negotiations, thus causing a serious breach of the functioning of the internal market or an imminent risk thereof. Second, Article 38 may be triggered if there are serious shortcomings or any imminent risks of such shortcomings in the transposition, state of implementation, or the application of the instruments of cooperation and decisions relating to mutual recognition in the area of freedom, security and justice. ( 50 )

133. An examination of the objectives and content of the MCV Decision shows that it can easily be subsumed under the type of measures foreseen by Articles 37 and 38 of the Act of Accession.

134. Regarding the objectives of the MCV Decision, its recital 4 refers to the shortcomings justifying recourse to the safeguard measures of Articles 37 and 38 of the Act of Accession. Whilst noting the efforts made to complete Romania’s preparation for EU membership, that recital reveals that the Commission identified in its Report of 26 September 2006 ( 51 )‘remaining issues’ concerning, in particular, the accountability and efficiency of the judicial system and law enforcement bodies. Further progress was deemed necessary in order to ensure their capacity ‘to implement and apply the measures adopted to establish the internal market and the area of freedom, security and justice’. After recalling in recital 5 that the measures in Articles 37 and 38 of the Act of Accession could be taken in case of ‘imminent risks’, the Commission considered such risks to be present. Recital 6 thus explains that the ‘remaining issues’ concerned with accountability and efficiency of the judicial and law enforcement system warrant the establishment of the MCV in order to assess the progress of Romania in addressing specific benchmarks in the field of judicial reform and the fight against corruption.

135. The reason underlying the MCV is thus based on the existence of imminent risks for the functioning of the internal market and the area of freedom, security and justice due to the shortcomings found in the judicial system and in the fight against corruption in Romania. That objective seems to be fully in line with Articles 37 and 38 of the Act of Accession.

136. Second, from the point of view of the content of the measures that may be taken on the basis of those provisions, it appears from the wording of both Articles 37 and 38 of the Act of Accession that the term ‘measures’ is sufficiently broad so as to encompass an act such as the MCV Decision. Neither of the provisions contain an exhaustive list of the kind of measures that may be taken on their basis. The only measure expressly mentioned is the suspension of mutual recognition under Article 38 of the Act of Accession. Thus, Articles 37 and 38 of the Act of Accession simply set negative limits with which the measures must comply — the measures must respect the principle of proportionality and must not be discriminatory.

137. If both Articles 37 and 38 of the Act of Accession can legitimately be used to (ultimately) suspend mutual recognition or certain elements of the internal market, and neither contain any closed list of the type of measures which may be adopted on their basis, then there is not only one measure possible, but rather a scale of measures. In other words, if it is possible to suspend, then it must also be possible, in the name of proportionality expressly inscribed in that provision, to, a fortiori, simply establish a much lighter and in that sense much more proportionate measure of a cooperation and verification. The fact that additional and more restrictive measures implementing Articles 37 and 38 can be taken does not detract from the fact that already less stringent measures, such as the MCV, can be adopted on the basis of those provisions, and in accordance with the proportionality principle.

(3) Duration of the MCV

138. Articles 37 and 38 of the Act of Accession contain the same temporal limitations. First, both provisions state that the measures may be taken, in principle, until the end of a period of up to three years after accession. However, both provisions also establish (i) that the safeguard clauses may be invoked even before accession on the basis of the monitoring findings and that the measures adopted are to enter into force as of the first day of accession unless they provide for a later date, and (ii) that the measures may be applied beyond the period of three years as long as those shortcomings persist. Despite the possibility to maintain the measures for an undetermined period of time, both Articles 37 and 38 of the Act of Accession indicate expressly (iii) that the measures are not to be maintained any longer than is strictly necessary and, in any case, are to be lifted when the relevant commitment is implemented.

139. Again, no argument was put forward in the course of these proceedings to suggest that the MCV Decision did not comply with those requirements. First, it was adopted several days before accession, on 13 December 2006, on the basis of the findings of Report of 26 September 2006, as noted in recital 4 of the MCV Decision (i). Second, the measures have been maintained for a longer period than the three-year period following accession based on the finding that the shortcomings that led to the adoption of the MCV Decision continued to persist (ii). Third, recital 9 notes that the decision is to be repealed when all the benchmarks have been satisfactorily fulfilled. In that regard it is noteworthy that, the lifting of the MCV was provided for in the Report of 2017, and was brought to a halt only after the negative findings in the Report of 13 November 2018, to which the present cases relate (iii).

140. I think that the analysis under this heading should stop here. There is naturally the underlying, deeper issue of proportionality, which surfaces occasionally within arguments on the extent to which it is appropriate and/or necessary to maintain what was intended to be a temporal post-accession system 13 years later and counting. However, that particular can of worms can be safely left untouched in the context of the present proceedings, where none of the parties suggested that the material conditions for the ongoing applicability of the MCV Decision, set out in the previous two points, would no longer be satisfied.

(4) Interim conclusion

141. The consideration of the first part of the second question raised in Cases C‑83/19, C‑127/19 and C‑355/19 has not disclosed any factor liable to cast doubt on the fact that the MCV Decision, in its current form, was validly adopted and can be maintained on the basis of the Treaty of Accession.

(c) The legal effects of the MCV

142. A further question posed by the referring courts in the present cases is whether the MCV Decision (1) and the reports of the Commission adopted on its basis (2) are binding on Romania.

(1) The legal effects of the MCV Decision

143. The Governments of Belgium and the Netherlands have argued that the MCV Decision is binding in all its elements. Similarly, the Swedish Government in its written observations, as well as the Association of Judges Forum and the Prosecutor General at the hearing, submit that the MCV Decision and its annex benchmarks are legally binding on Romania.

144. The Romanian Government submitted in its written observations that the only obligation imposed on Romania by the MCV Decision was that of periodically reporting to the Commission on the progress made with regard to the benchmarks of the annex to that decision. That government changed its position at the hearing, and submitted that the annex benchmarks of the MCV Decision give specific expression to the conditions of the Treaty of Accession, in accordance with the values and principles of Articles 2 and 19 TEU.

145. The MCV Decision is a decision for the purposes of the fourth paragraph of Article 288 TFEU. As that provision establishes, decisions are binding in their entirety for their addressees. In accordance with Article 4 of the MCV Decision, its addressees are the Member States. At the moment of its adoption, Romania was indeed not yet a member, but in that specific context, the binding character of the EU acts adopted before accession follows (also) from Article 2 of the Act of Accession: ‘From the date of accession, the provisions of the original Treaties and the acts adopted by the institutions and the European Central Bank before accession shall be binding on Bulgaria and Romania and shall apply in those States under the conditions laid down in those Treaties and in this Act.’

146. Thus, the MCV Decision is clearly binding. The real issue is rather exactly what obligations are imposed on Romania by the MCV Decision.

147. The unequivocally worded legal obligation imposed on Romania is contained in Article 1 of the MCV Decision: ‘Romania shall by 31 March of each year … report to the Commission on the progress made in addressing each of the benchmarks provided for in the Annex.’ There is, therefore, an obligation of reporting.

148. However, the obligations imposed on Romania on the basis of Article 1 of the MCV Decision certainly do not stop at sending in annual reports by a given deadline. Indeed, the obligation imposed by Article 1 is not merely to report, but to report progress made in addressing each of the benchmarks listed in the Annex to the MCV Decision. Thus, Article 1 of the MCV Decision also sets out the obligation to attain the objectives laid out in the benchmarks contained in the annex to that decision. Moreover, the second paragraph of Article 1, which entitles the Commission to provide technical assistance through different activities or gather and exchange information on the benchmarks and to organise expert missions to Romania for this purpose, also states that the Romanian authorities are to give the necessary support in this context.

149. To report progress made thus requires that certain efforts be developed in in a certain direction. The logic of that provision would hardly be satisfied by mechanically reporting annually that things are pretty much the same. Within such a context, I would not put too much weight on the textual argument drawn from the Annex to the MCV Decision. Indeed, in some linguistic versions the annex refers, in a somewhat vague way, to the ‘benchmarks to be addressed by Romania’. ( 52 ) On the other hand, a number of other linguistic versions contain language clearly indicative of an obligation to attain. ( 53 )

150. Furthermore, the binding nature of the obligation to gradually comply with the benchmarks listed in the Annex to the MCV Decision is clearly emphasised by the position of the MCV Decision in the context of the obligations emanating from the Treaty of Accession. The MCV Decision made accession possible despite the persistent serious concerns on core shortcomings relating to judicial reform and the fight against corruption in Romania. It cannot thus come as a surprise that the MCV Decision entails a specific obligation on the part of Romania to achieve the objectives laid down in the benchmarks contained in the annex. Far from being intended as a mere recommendation, the MCV Decision was adopted on the basis of Articles 37 and 38 of the Act of Accession as a safeguard measure, which was essential to allow accession by 1 January 2007.

151. In general, the benchmarks of the MCV are linked to and specify the requirement of the rule of law of Article 2 TEU, to which Article 49 TEU makes reference as a precondition for accession. According to Article 49 TEU, only States which respect the values of Article 2 TEU and which are committed to promoting them may apply to become a member of the European Union. The preamble to the MCV Decision emphasises the central role of the rule of law for the Union and, in particular, for the area of freedom, security and justice, and the implied need for all the Member States to have an impartial and independent judicial and administrative system equipped to fight against corruption. ( 54 )

152. The role of the MCV in the accession process was crucial within that context. Concerns about the justice system and the fight against corruption persisted during the negotiations preceding accession, and were expressly mentioned in Annex IX to the Act of Accession under the list of specific commitments undertaken, and requirements accepted, by Romania at the conclusion of the accession negotiations on 14 December 2004. ( 55 ) Pursuant to Article 39(2) of the Act of Accession, non-compliance with such commitments could have led the Council to postpone the date of accession by one year. As the Belgian Government noted, the benchmarks reflect the commitments undertaken by Romania in the negotiations for accession, as illustrated by Annex IX to the Act of Accession. It can therefore be considered, as the Danish Government submitted at the hearing, that the MCV was an essential condition in the framework of the signature of the Treaty of Accession by all the Member States, keeping in mind that there were still significant shortcomings. Those shortcomings, as identified by the Commission’s last pre-accession report on Romania, provide the basis for the adoption of the MCV Decision.

153. Within such a historical and legislative context, an interpretation of the MCV Decision according to which the benchmarks included in