REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL On Progress in Romania under the Cooperation and Verification Mechanism
Date: 2021-06-08
Institutions: European Commission, Secretariat-General
Subjects: Romania, conflict of interest, corruption, independence of the judiciary, judge, judicial reform, public contract, rule of law

EN 

  EN 

   EUROPEAN COMMISSION  Brussels, 8.6.2021  COM(2021) 370 final  REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL On Progress in Romania under the Cooperation and Verification Mechanism  
 
 
1. 

INTRODUCTION  

The  Cooperation  and  Verification  Mechanism  (CVM)  was  established  at  the  accession  of 
Romania  to  the  EU  in  2007  as  a  transitional  measure  to  facilitate  Romania’s  continued 
efforts to reform its judiciary and step up the fight against corruption.1 It represented a joint 
commitment of the Romanian State and of the EU. In line with the decision setting up the 
mechanism and as underlined by the Council and confirmed by the Court of Justice of the 
European  Union  (CJEU),  the  CVM  will  be  brought  to  an  end  when  all  the  benchmarks 
applying to Romania are satisfactorily met.2  

Work  under  the  CVM  has  been  ongoing  since  2007  to  encourage  and  follow  the  reform 
process  based  on  the  benchmarks.  In  January  2017,  the  Commission  undertook  a 
comprehensive  assessment  of  progress  over  the  ten  years  of  the  mechanism.3  This 
perspective gave a clearer picture of the significant progress made, and the Commission was 
able to set out twelve specific recommendations which, when met, would suffice to end the 
CVM process. This would depend on fulfilling the recommendations in an irreversible way, 
but also on the more general condition that developments were not such as to clearly reverse 
the course of progress.  

Since  then,  the  Commission  has  carried  out  three  assessments  of  progress  on  the 
implementation  of  the  recommendations.  In  November  2017,4  the  Commission  noted 
progress on a number of the recommendations, but also that the reform momentum had been 
lost, warning of a risk of re-opening issues which the January 2017 report had considered as 
closed.5 The November 2018 report concluded that developments had reversed or called into 
question  the  irreversibility  of  progress,  and  that  additional  recommendations  had  to  be 
made.6 Both the European Parliament and the Council supported this view.7,8 The October 
2019 report welcomed the intention of the Romanian government to reset the approach, but 
regretted  that  Romania  did  not  engage  with  all  the  recommendations.9  The  Commission 
called  on  the  competent  Romanian  authorities  to  translate  their  commitment  to  resume 
reform into concrete steps aimed at addressing all the recommendations.  

In 2020, the government reaffirmed its commitment to achieve the objectives of the CVM, 
though overall progress was limited. Amongst other factors, this could be explained by the 
situation related to the COVID-19 pandemic and the fact that 2020 was an electoral year in 
Romania. In these circumstances, the Commission did not publish a dedicated CVM report, 
but maintained nevertheless its close monitoring of developments, as well as the cooperation 
and dialogue with the Romanian authorities and stakeholders including through the rule of 
law mechanism.  

1   Following the conclusions of the Council of Ministers, 17 October 2006 (13339/06), the Mechanism was 

2  

established by Commission Decision of 13 December 2006 (C(2006) 6569). 
Judgment of the Court of Justice of 18 May 2021 in Joined Cases C-83/19, C-127/19, C-195/19, C-294/19, 
C-355/19 and C-379/19 Asociaţia ‘Forumul Judecătorilor Din România’ and Others, para 164.  

3   COM(2017) 44.  
4   COM(2017) 751. 
5   These  concerns  were  echoed  by  the  Council.  Council  Conclusions  on  the  Cooperation  and  Verification 
Mechanism, 12 December 2017 - https://ec.europa.eu/info/sites/info/files/20171212-st15587_en.pdf. 

6   COM(2018) 851  
7   European  Parliament  non-legislative  resolution  on  the  rule  of  law  in  Romania  of  13  November  2018, 

P8_TA-PROV(2018)0446.  

8   Council Conclusions of 12 December 2018 https://ec.europa.eu/info/sites/info/files/2018-st15187_en.pdf. 
9   COM(2019) 499  

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In September 2020, the Commission adopted its 2020 Rule of Law Report: the rule of law 
situation in the European Union10 covering rule of law developments in all Member States 
in  the  areas  of  judicial  reform,  the  anti-corruption  framework,  media  pluralism  and  other 
institutional checks and balances. The proactive participation of the Romanian authorities in 
this  new  rule  of  law  mechanism  is  an  important  sign  of  commitment  to  strengthening  the 
rule  of  law  and  thus  the  issues  falling  under  the  CVM.  The  dedicated  country  chapter  for 
Romania included updates on developments in judicial reform and fight  against corruption 
since  the  October  2019  CVM  report,11  as  well  as  issues  with  an  important  bearing  on  the 
Member  State’s  capacity  and  sustainability  of  reform  in  general,  such  as  the  quality  of 
legislation and the legislative process, as well as the media environment.  

The rule of law in general, and the independence of the judiciary, restoring the fight against 
corruption and “addressing the stagnation and regressions of the last years” are included in 
the  programme  of  the  new  Government,  which  took  office  in  late  December  2020.  The 
programme sets out the intention of the Government “to continue the demarches to finalise 
the  CVM,  based  on  real  progress  regarding  the  independence  and  efficiency  of  the 
Romanian  justice  system”.12  In  January  2021,  it  adopted  a  memorandum  expressing  the 
political commitment to address all pending CVM recommendations, with a view to lifting 
the mechanism.13 The plans set out in the memorandum include a draft law abolishing the 
Section for investigating criminal offences within the judiciary (SIIJ) and amendments to the 
justice laws, both directly connected to CVM recommendations.  

The  judgment  of  the  CJEU  of  18  May  2021  in  a  series  of  preliminary  references  is  an 
important  development  which  clarified  the  nature  of  the  CVM  and  the  obligations  of 
Romania following from it. As regards the 2006 CVM decision, the Court explained that it 
is  binding  in  its  entirety  on  Romania  as  from  its  accession  to  the  EU,  and  obliges  it  to 
address the benchmarks set out in the annex to the decision, which are also binding.14 Those 
benchmarks, defined on the basis of the deficiencies established by the Commission before 
Romania’s accession, seek in particular to ensure that that Member State complies with the 
value of the rule of law. Romania is therefore required to take appropriate measures to meet 
the  benchmarks  and  to  refrain  from  implementing  any  measures  which  could  jeopardise 
their  being  met.15  The  judgment  also  clarifies  that  the  Commission’s  reports  on  the  CVM 
formulate  requirements  with  regard  to  Romania  and  that  the  ‘recommendations’  are  made 
with  a  view  to  meet  the  benchmarks.  In  accordance  with  the  principle  of  sincere 

10   COM(2020) 580  
11   SWD(2020) 322  
12    https://gov.ro/fisiere/pagini_fisiere/Program_de_guvernare_2020_2024.pdf 
13   Memorandum: Priority steps necessary to complete the Cooperation and Verification Mechanism (CVM) - 

legislation in the field of justice (No. 5073/2021/19.01.2021)  

14    CVM benchmarks to be addressed by Romania: 
       Benchmark  One:  Ensure  a  more  transparent  and  efficient  judicial  process  notably  by  enhancing  the 
capacity and accountability of the Superior Council of Magistracy. Report and monitor the impact of the 
new civil and penal procedures codes 

       Benchmark  Two:  Establish,  as  foreseen,  an  integrity  agency  with  responsibilities  for  verifying  assets, 
incompatibilities  and  potential  conflicts  of  interest,  and  for  issuing  mandatory  decisions  on  the  basis  of 
which dissuasive sanctions can be taken 

       Benchmark  Three:  Building  on  progress  already  made,  continue  to  conduct  professional,  non-  partisan 

investigations into allegations of high- level corruption 

       Benchmark  Four: Take  further  measures to prevent and fight against corruption, in  particular  within the 

local government 

15    Judgment of the Court of Justice of 18 May 2021 in Joined Cases C-83/19, C-127/19, C-195/19, C-294/19, 
C-355/19 and C-379/19 Asociaţia ‘Forumul Judecătorilor Din România’ and Others, paras 167-172. 

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cooperation, Romania must  take due account  of  those requirements and  recommendations, 
as well as refrain from adopting or maintaining measures which could jeopardise the result 
prescribed by those requirements and recommendations.16  

This report takes stock of the progress under the CVM since October 2019. Whilst some of 
the  recommendations  were  formulated  in  terms  specific  to  the  moment  of  their  adoption, 
their intent remains clear and all remaining recommendations should be implemented, while 
those  already  implemented  still  need  to  be  taken  into  account  to  avoid  backsliding.  The 
Commission encourages Romania, its government and Parliament, to meet the commitments 
made  under  the  CVM  and  to  pursue  actively  the  fulfilment  of  all  the  remaining  CVM 
recommendations. This would allow the CVM to come to an end, and rule of law issues in 
Romania would continue to be followed under the rule of law mechanism, applicable to all 
Member States.  

As  in  previous  years,  this  report  is  the  result  of  a  careful  process  of  analysis  by  the 
Commission,  drawing  on  close  cooperation  with  Romanian  institutions,  civil  society  and 
other stakeholders.17 

2.  ASSESSMENT  OF  PROGRESS  ON  THE  FULFILMENT  OF  THE 

RECOMMENDATIONS  

This  section  assesses  progress  on  the  12  recommendations  of  January  2017  and  the  eight 
additional  recommendations  of  November  2018.  The  fulfilment  of  all  remaining 
recommendations  is  essential  to  the  reform  process,  redressing  the  negative  effects  of  the 
backtracking identified in the 2017, 2018 and 2019 CVM reports and allowing the CVM to 
be completed.  

2.1.   Benchmark One: Judicial independence and Judicial reform 

Justice laws and legal guarantees for judicial independence 

2018 Recommendations  
• 

Suspend immediately the implementation of the Justice laws and subsequent Emergency 
Ordinances. 

•  Revise the Justice laws taking fully into account the recommendations under the CVM 

and issued by the Venice Commission and GRECO.  

Three Justice laws define the status of magistrates and organise the judicial system and the 
Superior Council of Magistracy. They are therefore central to ensuring the independence of 
magistrates and the good functioning of the judiciary. Amendments to these Justice laws in 
2018  and  2019,18  still  in  force,  had  a  serious  impact  on  the  independence,  quality  and 
efficiency of the justice system. Major issues identified included the creation of a Section for 

16    Ibid., paras 173-177. 
17    Commission services organised two fact-finding missions in February and June 2020, and two fact-finding 
missions in January and March 2021 (virtual missions where required). Meetings included the Minister of 
Justice,  Members  of  the  Romanian  Parliament,  the  Superior  Council  of  Magistracy,  the  High  Court  of 
Cassation  and  Justice,  the  Prosecutor  General,  the  National  Anti-Corruption  Directorate,  the  National 
Integrity  Agency,  the  national  Agency  for  the  Management  of  seized  assets  (ANABI),  civil  society 
organisations and judicial associations.  

18   Law 207/2018 amending Law 304/2004 on the judicial organisation; Law 234/2018 for amending Law no. 
317/2004  on  the  Superior  Council  of  Magistracy;  Law  242/2018  amending  Law  no.  303/2004  on  the 
statute  of  judges  and  prosecutors.  The  laws  were  further  modified  through  Governement  Emergency 
Ordinances in 2018 and 2019.  

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investigating  criminal  offences  within  the  judiciary  (SIIJ),  the  system  of  civil  liability  of 
judges  and  prosecutors,  early  retirement  schemes,  the  entry  into  the  profession,  and  the 
status  and  appointment  of  high  ranking  prosecutors.  The  implementation  of  the  amended 
laws soon confirmed concerns, and new issues have emerged in the intervening years.19  

Concerns about the continued impact of the amended laws were confirmed in the 2018 and 
2019  reports,  with  a  recommendation  that  the  amended  laws  be  suspended  and  revised  to 
reflect the recommendations of the Commission, GRECO and the Venice Commission. The 
reports highlighted how the SIIJ has been used to create pressure on judges and prosecutors 
and  change  the  course  of  some  high-level  corruption  cases.20  They  also  noted  that  the 
situation  had  created  uncertainty  and  pressure  for  both  individual  magistrates’  career 
development  and  independence,  and  for  the  justice  system  as  a  whole.  The  reports  also 
questioned  the  soundness  of  the  rules  for  the  appointment  and  accountability  of  the 
management of the Judicial Inspection.  

With the Justice laws as  amended in  2018-19 still in  force, the concerns  of damage to  the 
functioning of the justice system remain. In particular, the existence and the functioning of 
the  SIIJ  remains  a  serious  concern.21  Although  fewer  than  in  previous  years,  there  were 
renewed  instances  of  pressure  from  the  SIIJ  on  magistrates  through  summons22,  and 
concerns that the choice of cases to be subject to criminal investigations lacks objectivity23, 
as  well  as  examples  of  leaks  to  the  media24  which  can  exert  pressure  on  judges  and 
prosecutors.  Its  negative  impact  on  high-level  corruption  cases  also  continues.  The  SIIJ  is 
less active in interfering in ongoing high-level corruption cases – for example, it is no longer 
taking  over  corruption  cases  assigned  to  parts  of  the  prosecution  services  and  the 
problematic  practice  of  withdrawal  of  appeals  in  high-level  corruption  cases  was  stopped 
after  the  Constitutional  Court  ruled  that  the  transfer  of  appeals  to  the  SIIJ  was 
unconstitutional.25  However,  the  SIIJ  continues  to  request  original  evidence  from  other 
prosecution  services  in  ongoing  corruption  cases,  and  cases  in  court  risk  disruption  as  a 
result.26 In its judgment of 18 May 2021, the CJEU declared that, in order to be compatible 
with  EU  law,  the  legislation  creating  such  a  specialised  section  must  be  justified  by 
objective and verifiable requirements relating to the sound administration of justice, ensure 
that  that  section  cannot  be  used  as  an  instrument  of  political  control  over  the  activity  of 
judges and prosecutors, and that the section exercises its competence in compliance with the 
requirements  of  the  Charter  of  Fundamental  Rights.  If  it  fails  to  fulfil  those  requirements, 
that  legislation  could  be  perceived  as  seeking  to  establish  an  instrument  of  pressure  and 
intimidation  with  regard  to  judges,  which  would  prejudice  the  trust  of  individuals  in 

19   In  particular  relating  to  appointment  rules  for  the  High  Court  of  Cassation  and  Justice  and  the  Judicial 

Inspection. 

20      Since  its  creation  all  investigations  and  prosecutions  involving  a  magistrate,  including  past  and  ongoing 
investigations were transferred to the SIIJ, which would also deal with the investigation and prosecution of 
all other persons involved in these cases (including high-level corruption), even if the magistrate’s role in 
the file is marginal.  

21    See details in CVM reports of 2018 and 2019. 
22    https://www.csm1909.ro/PageDetails.aspx?FolderId=786 
23   With several examples of actions against magistrates vocal in the cause of judicial reforms. 
24    Judicial Inspection report on the public communication of the SIIJ during part of 2020.  
25   Decision no 547 from 7 July 2020 
26    Information received during the CVM missions. In addition, the efficiency of the SIIJ is another concern 
with  6600  cases  pending  and  few  cases  finalized  in  2020  (500  closed  and  2  sent  to  court).  The  low 
efficiency is an additional risk factor of impunity in high-level corruption cases. 

4 

 
                                                           
justice.27  The  CJEU  adds  that  the  national  legislation  at  issue  cannot  have  the  effect  of 
disregarding Romania’s specific obligations under the CVM Decision in the area of the fight 
against corruption. 

At the same time, the pressure on the human resources of the judicial institutions continues 
to  increase.  This  is  due  to  the  combined  effect  of  the  absence  of  new  entries  into  the 
profession  in  2019  and  2020,28  an  increasing  workload  per  judge  and  per  prosecutor,  an 
increasing  number  of  retirements,  dissuasive  seniority  thresholds  for  appointments,29  and 
restrictions  on  temporary  delegations  (in  particular  at  the  National  Anti-corruption 
Directorate).  Further  deterioration  in  the  situation  was  avoided  when  the  Government  and 
Parliament  took  steps  to  delay,  and  then  repeal,  the  entry  into  force  of  problematic 
provisions on the possibility for early retirement of magistrates after 20 years of service and 
on the increased number of judges in certain panels.30 

The ongoing process for amending the justice laws 

In  September  2020,  the  Ministry  of  Justice  presented  amended  justice  laws  for  public 
consultation for six months. The new drafts represented an important overhaul of the three 
justice  laws.31  According  to  the  Minister  of  Justice,  the  approach  gave  full  account  to  the 
CVM  Reports,  GRECO  reports  and  Venice  Commission  opinions,  as  well  as  the  broader 
need  to  rethink,  re-discuss  and  amend  the  justice  laws.  A  specific  intended  goal  was  to 
remedy  the  negative  effects  of  the  previous  amendments.  The  September  2020  draft  laws 
propose  solutions  to  many  issues  identified  in  CVM  reports,  in  particular:  abolishing  the 
SIIJ, increasing the professional independence of prosecutors; removing the early retirement 
scheme  for  magistrates;  modifying  the  provisions  on  the  civil  liability  of  magistrates; 
removing  restrictions  on  the  freedom  of  expression  of  magistrates;  and  amending  the 
procedures  for  revocation  and  appointments  for  top  management  prosecutors  (see  also 
below).  

Overall,  the  consultation  process  and  reaction  from  the  magistracy  brought  a  mixed 
response.  The  Superior  Council  of  Magistracy  (SCM)  first  issued  a  statement  on  the  laws 

27     Judgment of the Court of Justice of 18 May 2021 in Joined Cases C-83/19, C-127/19, C-195/19, C-294/19, 
C-355/19 and C-379/19 Asociaţia ‘Forumul Judecătorilor Din România’ and Others, para 216. The Court 
further clarifies that it is for the national court to ascertain that the reform which resulted, in Romania, in 
the creation of a specialised section of the Public Prosecutor’s Office responsible for investigating judges 
and prosecutors and the rules relating  to the appointment  of prosecutors assigned to that section are  not 
such as to make the section open to external influences. As regards the Charter, it is for the national court 
to ascertain that the  national  legislation at  issue  does  not prevent the case of the judges  and prosecutors 
concerned being heard within a reasonable time. 

28   The  2019  competition  was  postponed  by  the  Superior  Council  of  Magistracy  and  in  2020,  the 

Constitutional Court invalidated the competition process. (121/2020 CCR decision)  

29     In 2018 and 2019, the seniority requirement for prosecutors in certain services was significantly increased 
from  one  day  to  another.  As  a  result  a  number  of  persons  had  to  leave,  not  meeting  the  requirements 
anymore, and recruitment of new personnel was made more difficult.   

30   In December 2019, the entry into force of the early retirement provisions was delayed until January 2022. 
In March 2021 the Parliament definitively abrogated the provisions on early retirement with effect as from 
1 January 2022. By Government Emergency Ordinance no. 215/2020, measures were adopted in order to 
postpone the entry into force of the provisions regarding the composition of the  appeal panels (3 judges 
instead of 2). The emergency ordinance stipulated that the appeal panels are composed by 2 judges until 
31 December 2022. The Parliament is also in the process of adopting a draft law stipulating that the appeal 
panels are composed by 2 judges. The draft was approved by the Chamber of Deputies in May 2021, and 
is now in the Senate for adoption, and will abrogate EOG 215/2020 on entry into force. 

31    Law 207/2018 amending Law 304/2004 on the judicial organisation; Law 234/2018 for amending Law no. 
317/2004  on  the  Superior  Council  of  Magistracy;  Law  242/2018  amending  Law  no.  303/2004  on  the 
statute of judges and prosecutors. 

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noting  with  concern  the  draft  amendments  to  the  Laws  of  Justice  as  they  were  put  up  for 
public  debate.32  Later,  the  judges  and  prosecution  sections  of  the  SCM  organised  separate 
consultations  and  sent  their  views  to  the  Minister  of  Justice,  but  these  were  not  made 
public.33  

In  January  2021,  the  new  Government  changed  the  approach,  accelerating  the  adoption  of 
two  specific  and  more  limited  amendments.  First,  it  proposed  a  draft  law  on  temporary 
measures  on  admission  into  the  magistracy,34  having  received  a  positive  opinion  from  the 
SCM. The draft law was adopted by Parliament  on 3 February 2021, but after a challenge 
before the Constitutional Court, some provisions of the law were found unconstitutional on 
17 March 2021.35  

Second, the draft law on the abolition of the SIIJ was published on the website of Ministry 
of  Justice  on  4  February  2021  and  was  sent  to  the  SCM  for  opinion.  The  SCM  issued  a 
negative opinion, arguing that additional guarantees to protect magistrates from potentially 
abusive corruption investigations are needed.36 The Government did not follow the opinion 
of  the  SCM  and  adopted  the  draft  law  unchanged  on  18  February,  considering  that  the 
dismantling  of  the  SIIJ  would  support  judicial  independence,  and  submitted  the  draft  to 
Parliament. Parliament did not agree with the Government’s request for adoption through an 
emergency procedure, and when the Chamber of Deputies, as first chamber, passed the draft 
law in March, it added provisions which in its view are meant to “protect magistrates against 
abusive corruption investigations”, proposing that a request for approval of sending to court 
should  first  pass  through  the  SCM.37  This  additional  step  brought  criticism  from  civil 
society, a large part of the judiciary,38 and from within the SCM itself,39 on the grounds that 
it  equated  to  a  new  form  of  immunity  and  could  be  seen  as  limiting  the  accountability  of 
magistrates. The draft law is now in the Senate as decisional chamber. On 26 March 2021, 
the Minister of Justice requested an opinion from the Venice Commission on the draft law, 
and  in  particular  on  the  additional  guarantees.  The  Venice  Commission’s  opinion  is 
expected to be adopted in July.  

The Justice laws 

32   Statement of 1 October 2020 
33   Letters  were  sent  to  the  Minister  of  Justice  by  the  prosecution  and  judges  sections  from  the  Superior 

Council of Magistracy in February 2021 and December 2020, but these letters are not public.  

34   The  draft  law  concerns  admission  to  the  National  Institute  of  Magistracy  (NIM),  the  initial  professional 
training of judges and prosecutors, the graduation exam for NIM, the internship and capacity examination 
of the judges and prosecutors, as well as the examination of admission to magistracy. Some provisions had 
been annulled by the Constitutional Court in March 2020 (CCR Decision no. 121/2020 of 10 March 2020) 
and therefore no competition for admission into the magistracy had been possible. 

35    CCR Decision 187/2021 of 17 March 2021, published on 7 May 2021 
36    The SCM states that the proposed solution is not accompanied by guarantees to give effect to the principle 
of judicial independence, by ensuring adequate protection of judges and prosecutors against pressure, and 
notes  the  general  obligation  of  the  legislator  to  provide  appropriate  guarantees  to  ensure  actual  judicial 
independence when legislating on the judiciary.   

37   http://www.cdep.ro/pls/proiecte/upl_pck2015.proiect?cam=2&idp=19177 
38   A  memorandum  signed  by  over  1000  magistrates  from  across  the  country  criticised  the  "guarantees"  as 
introducing an unconstitutional “filter” by  making the prosecution of judges and prosecutors conditional 
on  the  approval  of  the  Superior  Council,  and  decreasing  public  confidence  in  appearing  to  introduce  a 
"super immunity". The signatories asked Parliament to await the opinions of the Venice Commission and 
GRECO before voting on the amendment. 

39    There are diverging opinions within the SCM on the abolishing of the SIIJ, on the need of guarantees and 

on whether the guarantees proposed by the Chamber of Deputies are appropriate.  

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In parallel, the debate on the full set of amendments to the three Justice laws was revived, 
through  additional  debates  and  consultations  with  the  judicial  institutions,  and,  in  March 
2021, the three draft amended laws sent to the SCM for an opinion. The Minister of Justice 
committed to sending the draft laws to the Venice Commission for an opinion, at the same 
time  as  these  would  be  sent  to  Parliament.  The  drafts  are  still  the  subject  of  debate  and 
consultation  in  Romania.  There were also  reactions from  civil  society.40  In early May, the 
Minister of Justice held discussions on the judicial reforms with 14 NGOs active in the field 
of justice.41  

One important development is the judgment of the CJEU of 18 May 2021, which considered 
a number of provisions of the justice laws in the light of Articles 2 and 19(1) TEU and of the 
CVM  decision,  in  particular  as  regards  the  SIIJ  and  the  ad  interim  appointments  to 
management  positions  within  the  Judicial  Inspectorate,  as  well  as  the  personal  liability  of 
judges as a result of judicial error.42 More generally, in its judgment, the CJEU recalled that 
a  Member  State  cannot  amend  its  legislation,  particularly  as  regards  the  organisation  of 
justice, in such a way as to bring about a reduction in the protection of the value of the rule 
of law.43  

The final form of the three justice laws will have a key impact on the independence, quality 
and  efficiency  of  the  justice  system,  as  well  as  its  ability  to  ensure  citizens’  right  to  an 
effective remedy. The Government has already confirmed that it is approaching the reform 
in a way which seeks to address CVM recommendations on both process and substance. In 
terms  of  process,  it  remains  important  that  besides  taking  due  account  of  the  CVM 
recommendations themselves, full attention is paid to the case law of the CJEU in relation to 
judicial  independence,  and  in  particular  the  recent  decision  of  18  May  2021,  as  well  as  to 
opinions  of  the  Venice  Commission  and  GRECO  reports.  This  is  an  important  element  in 
finding robust, stable and sustainable solutions.  

In  terms  of  substance,  the  CVM  recommendations  point  to  a  number  of  areas  where  the 
Commission will pay particular attention to the outcome of the revision of the justice laws. 
These include issues of  structures and procedures,  such as the dismantling of the SIIJ, the 
the 
disciplinary,  civil  and  criminal 
accountability and appointment of the Judicial Inspection management, and the appointment 
and  dismissal  procedures  for  senior  prosecutors,  as  well  as  the  role  of  the  High  Court  of 
Cassation  and  Justice  and  the  SCM.  Also  important  is  the  impact  of  the  reforms  on  the 
independence and career organisation of magistrates.  

judges  and  prosecutors, 

liability  regimes  for 

The  conclusion  of  the  legislative  process  will  allow  the  Commission  to  assess  more  fully 
progress towards the CVM recommendations on the justice laws.  

40    https://expertforum.ro/legile-justitiei-nu-redeschideti-cutia-pandorei/ 
41    http://www.just.ro/ministrul-justitiei-a-consultat-reprezentantii-societatii-civile/ 
42    Judgment of the Court of Justice of 18 May 2021 in Joined Cases C-83/19, C-127/19, C-195/19, C-294/19, 
C-355/19 and C-379/19 Asociaţia ‘Forumul Judecătorilor Din România’ and Others, paras 179-241. 

43   Ibid., para. 162. See also Case C-896/19 Repubblika v Il-Prim Ministru of 20 April 2021, para.64. 

7 

 
 
                                                           
Appointments to leadership posts in the prosecution services 

•  2017  Recommendation:  Put  in  place  a  robust  and  independent  system  of  appointing  top 
prosecutors, based on clear and transparent  criteria,  drawing  on the support of  the Venice 
Commission. 

•  2018  Recommendation:  Respect  negative  opinions 

the  Superior  Council  on 
appointments  or  dismissals  of  prosecutors  at  managerial  posts,  until  such  time  as  a  new 
legislative framework is in place in accordance with recommendation 1 from January 2017. 
•  2018 Recommendation: Relaunch a process to appoint a Chief prosecutor of the DNA with 
proven experience in the prosecution of corruption crimes and with a clear mandate for the 
DNA  to  continue  to  conduct  professional,  independent  and  non-partisan  investigations  of 
corruption.  

from 

Successive CVM reports had highlighted the need for sufficient checks and balances in the 
procedure to appoint top prosecutors, as well as the extent to which the same appointment 
and  dismissal  procedure  would  apply  at  lower  management  levels  within  the  prosecution. 
The 2018 CVM report had concluded that the situation had regressed, while the 2019 CVM 
report highlighted the risk that constant modifications created further uncertainty and a lack 
of confidence: although the procedure had been modified four times in less than six months, 
none  of  these  changes  addressed  the  core  issue  of  the  balance  between  the  influence  of 
different  institutions  on  the  process  and  the  concentration  of  power  with  the  Minister  of 
Justice. The Venice Commission also focused on the lack of counterbalance to the influence 
of the Minister of Justice.44  

There have been no further legal changes since 2019, and the issue is now part of ongoing 
amendments of the justice law as concerns the statute of judges and prosecutors. A new draft 
from  March  2021,  on  which  the  Minister  of  Justice  has  requested  an  SCM  opinion  (see 
above), proposes to strengthen the role of the SCM, by introducing a binding SCM opinion. 
The role of the President of Romania is also strengthened regarding the possibility to refuse 
a candidate.  

Since  the  last  report,  new  heads  of  the  prosecution  services  have  been  appointed,  but  the 
long-standing concerns with the procedure remain. In early 2020, one of the first actions of 
the  then  Minister  of  Justice  was  to  organise  selection  procedures  with  increased 
transparency, in order to appoint new leadership for the prosecution services.45 Nevertheless, 
while  the  new  DNA  chief  prosecutor  was  appointed  following  a  positive  opinion  of  the 
SCM, the Prosecutor General and the Chief Prosecutor for the Directorate for investigation 
of organised crime and terrorism (DIICOT)46 were appointed despite a negative opinion of 
the SCM. The Section for Prosecutors of the SCM further reports that the prosecutors who 
voted to reject the candidates for Prosecutor General and DIICOT were subject to pressure 
from  the  SIIJ  as  a  result.47  There  were  further  instances  in  2020  where  the  Minister  of 
Justice disregarded the opinion of the SCM for deputy management posts.48 

44   Venice Commission opinion 950/2019 CDL-AD(2019)014 
45   The  selection  criteria,  the  name  of  candidates  and  procedures  were  published  on  the  website  of  the 

Ministry of Justice, and interviews were streamed online.  

46   In  September  2020,  the  Chief  Prosecutor  of  DIICOT  resigned  from  her  position  after  her  husband  was 

investigated and convicted in first instance for corruption and influence peddling. 

47   This came in the form of leaked summons from the SIIJ shortly after the vote. 
48    For example, one of the deputy posts for the Prosecutor general attached to the High Court of Cassation 

and Justice 

8 

 
                                                           
The  dismissal  procedure  of  top  prosecutors  is  closely  related  to  the  appointment  process. 
The  dismissal  in  2018  of  the  former  DNA  chief  prosecutor49  has  been  reviewed  by  the 
European Court of Human Rights (ECtHR). Romania was found in violation of the right to a 
fair trial and the freedom of expression as enshrined in Articles 6(1) and 10 of the European 
Convention of Human Rights.50 The ECtHR held that the former Chief Prosecutor had not 
been able to effectively challenge in court the reasons for her removal from the position. It 
also  drew  attention  to  the  growing  importance  attached  to  the  intervention  of  an  authority 
independent of the executive and the legislative branch in respect of decisions affecting the 
appointment and dismissal of prosecutors. It also noted the risk that the dismissal could have 
a chilling effect on the willingness of magistrates to participate in public debate concerning 
the judiciary. The Romanian Government recently presented an action plan for the execution 
of the judgment51 and in the draft amendments of the justice laws, a review procedure before 
an administrative court has been added to the procedure for dismissal of top prosecutors.  

In  summary,  the  CVM  recommendation  on  the  appointment  of  the  DNA  Chief  Prosecutor 
has  been  addressed.  The  ongoing  legislative  process  to  amend  the  justice  laws  includes 
provisions  aiming 
the  remaining  recommendations  on  prosecutorial 
appointments, and the fulfilment of the recommendations can be assessed when the process 
has been completed.  

to  address 

Codes of conduct 

2017  Recommendation:  Ensure  that  the  Code  of  Conduct  for  parliamentarians  now  being 
developed  in  Parliament  includes  clear  provisions  on  mutual  respect  between  institutions 
and  making  clear  that  parliamentarians  and  the  parliamentary  process  should  respect  the 
independence of the judiciary. A similar Code of Conduct could be adopted for Ministers. 
A Code of Conduct for parliamentarians is in place since the end of 2017.52 The 2018 and 
2019 reports found that given the lack of explicit provisions on respect for the independence 
of the judiciary, the Code has not yet fulfilled its purpose.53 Since the last report no further 
developments  on  the  application  of  the  code  have  been  reported.  Disregard  of  judicial 
independence  in  the  parliamentary  process  and  criticism  of  the  judicial  system  and  of 
individual magistrates from some Members of Parliament, relayed in the media, continued 
to  be  reported,54  although  the  number  and  virulence  of  the  attacks  has  significantly 
decreased compared to the 2017-2019 period.  

The Commission had also suggested that it would be beneficial for the ministerial code to 
serve the same purpose, and in April 2019 the Government amended the ministerial code of 
conduct  to  include  an explicit mention  of the need to  respect  judicial independence. Since 

49   The  dismissal  took  place  in  2018  on  a  proposal  of  the  Minister  of  Justice.  Following  the  refusal  of  the 
Prosecutors’ Section of the Superior Council to endorse the proposal, the President of the Republic refused 
to sign the dismissal decree, which prompted the Prime Minister to complain to the Constitutional Court, 
which ultimately ordered the President to sign the decree. 

50   Judgment of the European Court of Human Rights of 5 May 2020, Kövesi v. Romania, 3594/19 
51   The Committee of Ministers of the Council of Europe will examine the implementation of the action plan 

in June 2021.  

52    Parliament decision 77/2017: https://www.juridice.ro/wp-content/uploads/2017/10/Codul-de-conduită.pdf.  
53   The  Code  of  Conduct  does  not  specifically  mention  respect  for  the  independence  of  the  judiciary  but 
includes  a  general  provision  on  the  respect  of  separation  of  powers:  Article  1  paragraph  (3)  provides: 
"Deputies  and  senators  have  the  obligation  to  act  with  honour  and  discipline,  taking  into  account  the 
principles of separation and balance of powers in the state, transparency, moral probity, responsibility and 
respect for Parliament's reputation." 

54   Superior Council of Magistracy website – statements and decisions regarding judicial independence 

9 

 
                                                           
the  last  CVM  report,  there  have  been  a  few  instances  where  the  Superior  Council  of 
Magistracy  (SCM)  found  that  criticism  from  a  member  of  the  Government  was  likely  to 
undermine the independence of the judiciary, but noticeably fewer than in previous years.55 
No information was received as to whether, in those cases, compliance with the Government 
code of conduct was discussed.  

The  developments  in  the  previous  legislature  on  respect  for  judicial  independence  by  the 
Parliament  meant  that  this  recommendation  could  not  be  considered  fulfilled.  The  new 
Parliament  in  place  since  the  beginning  of  2021  and  the  forthcoming  debates  on  justice 
issues give a new opportunity for Parliament to apply the code of conduct as appropriate to 
meet the recommendation’s goal of respect of judicial independence. 

Civil procedure code 

2017 Recommendation: The Minister of Justice, the Superior Council of the Magistracy and 
the  High  Court  of  Cassation  and  Justice  should  finalise  an  action  plan  to  ensure  that  the 
new  deadline  for  the  implementation  of  the  remaining  provisions  of  the  Code  of  Civil 
Procedures can be respected. 

This  Recommendation  covered  the  finalisation  of  the  reform  of  the  Code  of  Civil 
Procedures,  which  in  particular  set  up  a  council  chamber  stage  in  the  civil  procedure  and 
procedures  for  appeals  in  certain  cases.  In  2018,  this  reform  was  abandoned.56  The  2019 
CVM  report  concluded  that  this  should  provide  an  opportunity  for  a  period  of  stability  in 
this branch of the judicial system.  

This recommendation can be considered fulfilled. Assessments of the efficiency and quality 
of the judicial proceedings are being examined in the context of the Rule of Law Report.   

Criminal code and criminal procedure code 

•  2018 Recommendation: Freeze the entry into force of the changes to the Criminal Code 

and Criminal Procedure Code 

•  2018  Recommendation:  Reopen  the  revision  of  the  Criminal  Code  and  Criminal 
Procedure  Code  taking  fully  into  account  the  need  for  compatibility  with  EU  law  and 
international  anti-corruption  instruments,  as  well  as  the  recommendations  under  the 
CVM and the Venice Commission opinion 

•  2017  Recommendation:  The  current  phase  in  the  reform  of  Romania's  Criminal  Codes 
should be concluded, with Parliament taking forward its plans to adopt the amendments 
presented by the government in 2016 after consultation with the judicial authorities. 

In  April  2019,  Parliament  adopted  in  urgency  procedure  changes  to  the  criminal  code  and 
criminal procedure code and to the special law on corruption, raising strong concerns about 
the  impact  on  the  investigation  and  sanctioning  of  crimes  in  general,  and  on  corruption-
related  crimes  in  particular.  These  amendments  received  widespread  criticism  and  were 
declared unconstitutional in their entirety in July 2019.57 This decision meant that the laws 
did  not  come  into  force,  but  the  fact  that  there  had  been  a  policy  choice  to  make  such 
amendments  remained  a  concern  for  the  Commission  and  many  other  observers,58  all  the 
more  so  since  this  policy  choice  was  not  explicitly  renounced  immediately  after  the  court 

55   Website of the SCM. The SCM has also requested the judicial inspection to verify the statements of the 

Minister of Justice regarding a court judgement. 

56   The amended laws entered into force in December 2018.  
57   Constitutional Court of Romania, Decision 466 of 29 July 2019.  
58   See also Venice Commission opinion (CDL-AD(2018)021). 

10 

 
                                                           
decision  and  the  draft  laws  remained  pending  in  Parliament  throughout  the  previous 
legislature.  

In March 2021, both houses of the newly elected Parliament definitely rejected the 2018 and 
2019 amendments. Previously, in May 2020, Parliament had also rejected seven problematic 
draft amendments to the criminal code and criminal procedure code tabled by Members of 
Parliament.  

Amendments to the two codes remain necessary. In the first place, this is required to follow 
up  on  a  number  of  far-reaching  decisions  of  the  Constitutional  Court  made  since  2014, 
which  have  annulled  provisions  of  both  codes  and  had  a  particular  impact  on  the  fight 
against  corruption  and  organised  crime.  In  the  absence  of  solid  legislative  and  policy 
solutions, legal uncertainty hinders some individual cases and, as a result, affects the fight 
against corruption. 

An  inter-institutional  working  group  has  been  in  place  since  2019  to  examine  legislative 
initiatives  to  amend  the  criminal  code  and  criminal  procedure  code  and  propose  common 
solutions  and  positions  from  the  judiciary.59  The  meetings  of  the  working  group  were 
interrupted in 2020 due to the COVID-19 pandemic, but have now resumed. The Minister of 
Justice has made the work on the two codes a priority, and the work of the working group 
will  be  the  basis  for  the  revision  of  the  criminal  code  and  criminal  procedure  code.  The 
Government intends to present new consolidated texts to Parliament once the amendments 
to the justice laws are adopted.  

These various steps effectively mean that the amendments identified as a backward move in 
the recommendations have been renounced. This opens the way to the process of revision of 
the  criminal  code  and  criminal  procedure  code  to  follow  up  on  the  Constitutional  Court 
decisions, taking fully into account the need for compatibility with EU law and international 
anti-corruption instruments, as well as the recommendations under the CVM and the Venice 
Commission opinion set out in the recommendations. Preparatory steps are now being taken 
by the Romanian authorities.  

The legislative process in the CVM area 

2017  CVM  Recommendation:  In  order  to  improve  further  the  transparency  and 
predictability of the legislative process, and strengthen internal safeguards in the interest of 
irreversibility,  the  Government  and  Parliament  should  ensure  full  transparency  and  take 
proper account of consultations with the relevant authorities and stakeholders in decision-
making and legislative activity on the Criminal Code and Code for Criminal Procedures, on 
corruption  laws,  on  integrity  laws  (incompatibilities,  conflicts  of  interest,  unjustified 
wealth), on the laws of justice (pertaining to the organisation of the justice system) and on 
the Civil Code and Code for Civil Procedures, taking inspiration from the transparency in 
decision-making put in place by the Government in 2016. 

This recommendation was an acknowledgement that an open and robust legislative process 
is the best way to ensure that reforms are sustainable as well as effective. 60  

59   The working group includes the Superior Council of Magistracy, the High Court of Cassation and Justice, 
the Prosecutor's Office attached to the High Court of Cassation and Justice and the Ministry of Justice. 
60   The 2020 Rule of law report - Country Chapter on the rule of law situation in Romania and the European 
Semester  Country  Specific  Recommendations  have  underlined  concerns  regarding  the  predictability  and 
quality of the legislative process in general.  

11 

 
                                                           
In the May 2019 referendum, a majority of citizens voted in support of banning the use of 
Government  Emergency  Ordinances  (GEO)  in  the  area  of  justice.  This  illustrates  concern 
about the excessive use of GEOs, and there have been few cases since November 2019.61  

As regards procedures  in Parliament,  the number of emergency procedures concerning the 
justice  laws,  the  criminal  code  and  criminal  procedure  code,  the  legal  framework  on 
integrity  and  the  fight  against  corruption  has  significantly  decreased  since  the  2019  CVM 
report. In February 2021, Parliament rejected a proposal to examine the draft law to abolish 
the SIIJ through an emergency parliamentary procedure. There have also been fewer cases 
where  controversial  legislative  drafts  in  the  scope  of  the  CVM  have  been  advanced  in 
Committees or in one of the Chambers, and even fewer have been adopted. One exception 
was  a  law  abolishing  special  pensions,  including  the  special  pension  of  judges  and 
prosecutors, which the Superior Council of Magistracy considered as targeting the judiciary. 
It  was  eventually  declared  unconstitutional.62  However,  given  the  parliamentary  procedure 
whereby  amendments  remain  tabled  until  specifically  removed,  several  long-standing 
amendments remain before Parliament, including several  which could seriously undermine 
the  legal  framework  to  prevent  and  sanction  incompatibilities  and  conflicts  of  interests. 
Against  that  background,  the  vote  by  Parliament  to  reject  problematic  amendments  of  the 
criminal code and the criminal procedure code was an important sign of progress. In March 
2021,  the  Parliament  further  rejected  a  number  of  pending  amendments  raising  concerns 
about the integrity legal framework (see below). 

The legislative process for the various proposals for reform – on the SIIJ, the justice laws, 
and later  the criminal  code and criminal  procedure code  – is  an opportunity to  show that 
the approach of the recommendation is being followed.  

Implementation of court decisions by public administration 

2017  CVM  Recommendation:  The  Government  should  put  in  place  an  appropriate  Action 
Plan  to  address  the  issue  of  implementation  of  court  decisions  and  application  of 
jurisprudence  of  the  courts  by  public  administration,  including  a  mechanism  to  provide 
accurate statistics to  enable future monitoring.  It  should also develop  a system of  internal 
monitoring involving the Superior Council of the Magistracy and Court of Auditors in order 
to ensure proper implementation of the Action Plan. 

Respect  and  implementation  of  court  decisions  is  an  integral  part  of  the  efficiency  of  the 
judicial system.63 Romania was sanctioned by the European Court of Human Rights in 2005 
on  the  grounds  of  failure  or  significant  delay  by  the  State  or  by  legal  entities  under  the 
responsibility of the State to abide by final domestic court decisions.64 This has remained a 
problem: in 2016 Romania proposed to the Council of Europe’s Committee of Ministers an 
action plan to address the structural problems of non-enforcement or delayed enforcement of 

61   Exceptions  include  (i)  steps  taken  to  ensure  the  functioning  of  the  justice  system  during  the  COVID-19 
pandemic;  (ii)  an  act  of  February  2020  on  public  acquisitions  which  introduced  a  potential  new 
disciplinary procedure for judges, and which was declared unconstitutional; (iii) the EOG of 30 December 
2020 delaying the entry into force of provisions increasing the number of judges required in certain court 
panels, which are expected to be abolished as part of the ongoing revision of the Justice laws. 

62   Decision no. 153 of 6 May 2020. Later, Parliament adopted another law to tax the special pensions, also 

declared unconstitutional. 

63   See Guide on Article 6 of the European Convention on Human Rights – Right to a fair trial (civil limb): 

http://www.echr.coe.int/Documents/Guide_Art_6_ENG.pdf.  

64   Judgment  of  the  European  Court  of  Human  Rights  of  6  September  2005,  Săcăleanu  group  v.  Romania 

(Application No. 73970/01). 

12 

 
                                                           
 
court decisions against the State.65 This action plan and the additional measures required by 
the  Council  of  Europe  Committee  of  Ministers  are  of  direct  relevance  to  addressing  this 
recommendation.66  

The 2019 CVM report marked some progress, reporting that in April 2019, the Government 
had approved the list of measures and tasked the responsible inter-ministerial working group 
to  draft  the  legal  proposals  to  implement  the  action  plan.  These  measures  included 
amendments to the legal framework in order to guarantee timely execution and a mechanism 
to supervise and prevent late execution of judgements for which the State is a debtor.67  
However, none of these measures have been adopted or implemented.68 Responsibility has 
been  moved  inside  the  government,69  and  a  dedicated  working  group  has  been  tasked  to 
propose new legal solutions. 

As  also  underlined  by  the  Council  of  Europe’s  Committee  of  Ministers  in  March  2021,  a 
strong  political  commitment 
is 
indispensable.70  

to  bring  comprehensive  and  sustainable  solutions 

There have been no major new steps to implement this recommendation since the last report.  

Strategic Judicial Management and Action Plan for the judiciary 

2017  CVM  Recommendation:  The  Strategic  Judicial  Management,  i.e.  the  Minister  of 
Justice,  the  Superior  Council  of  the  Magistracy,  the  High  Court  of  Cassation  and  Justice 
and the Prosecutor-General should ensure the implementation of the Action Plan as adopted 
and put in place regular common public reporting on its implementation, including solutions 
to  the  issues  of  shortages  of  court  clerks,  excessive  workload  and  delays  in  motivation  of 
decisions. 

In  2017,  the  Strategic  Judicial  Management  was  set  up  with  the  aim  of  addressing  major 
strategic  questions  for  the  judicial  system,  bringing  together  the  main  institutions  with 
responsibility for the functioning of the judicial system.71 It is also responsible for ensuring 
the implementation of the Action Plan of the Strategy for the Development of the Judiciary 
2015-202072,  which  was  intended  to  become  the  main  motor  for  judicial  reform, 
internalising  the  reform  momentum  from  the  CVM.  The  November  2019  CVM  Report 

65   See Council of Europe reference CM/Notes/1280/H46-21. 
66   Romania  is  under  enhanced  supervision  from  the  Council  of  Europe  Committee  of  Ministers  for  the 

execution of this judgment (Decision CM/Del/Dec(2019)1340/H46-15). 

67   Memorandum  nr.  L1/1814/26.02.2019  on  ‘Measures  to  Ensure  the  Execution  of  Judgments  against  a 
Public Debtor, in accordance  with  the case  law of the European Court of  Human  Rights regarding  non-
execution or execution with delay of the judgments handed down against a public debtor.’ 

68   The 2019 CVM Report also noted that the ‘ECRIS’ IT application will be able to identify the number of 
definitive  judgments  in  which  public  institutions  are  debtors  or  creditors.  The  registry  should  make 
available statistics on effective enforcement, and will allow monitoring of the execution of judgements. No 
information was received on whether this register is now operational and statistics available. 

69   To the General Secretariat of the Government rather than the Ministry of Justice.  
70   In  March  2021,  the  Committee  of  Ministers  examined  again  the  execution  of  the  judgement  and 
“underlined again the crucial importance of a strong commitment at a high political level to bring about a 
swift, comprehensive and sustainable resolution of the problems revealed by these judgments”, expressing 
“deep concern at the prolonged absence of tangible progress”. 

71   It  is  composed  of  the  Minister  of  Justice,  the  President  of  the  Superior  Council  of  Magistracy,  the 

President of the High Court of Cassation and Justice and the Prosecutor-General.  

72   Action Plan approved by Government Decision 282 of 2016. 

13 

 
                                                           
found  that  the  Strategic  Judicial  Management  had  not  been  operating  as  intended  and  that 
the action plan remained largely unimplemented.73  

Since  2019,  the  situation  faced  by  the  justice  system  in  terms  of  human  resources  and 
organisation  has  continued  to  worsen,  following  the  amendments  to  the  justice  laws  and 
policies  adopted  in  the  period  2017-2019.  Key  structural  problems  mentioned  in  the  2017 
report remain: shortages of court clerks, excessive workload in certain courts and delays in 
motivating  court  decisions.74  While  a  few  meetings  of  the  Strategic  Judicial  Management 
took  place  in  late  2019,  and  the  professional  institutional  cooperation  could  resume,  no 
tangible  results  were  achieved.  The  Minister  of  Justice  has  now  started  reconvening 
meetings, and first discussions have taken place on the functioning of the Strategic Judicial 
Management and on the human resources strategy for 2021-2022.  

A final report on the implementation of the Action Plan is now being prepared, which could 
help to identify the next steps and the actions from the previous plan that remain relevant.  

A new vision and strategy for an effective and sustainable development of the justice system 
for the coming years will be an important complement to a revised legal framework through 
the justice laws. It would also show the Strategic Judicial Management becoming an active 
forum able to address major strategic questions for the judicial system, building consensus 
and  trust  between  the  key  judicial  and  governmental  institutions.  This  would  be  an 
important step towards showing that sustainable structures exist to continue reform once the 
CVM has ended. 

The transparency and accountability of the Superior Council of the Magistracy  

2017 CVM Recommendation: The new Superior Council of the Magistracy should prepare a 
collective  programme  for  its  mandate,  including  measures  to  promote  transparency  and 
accountability.  It  should  include  a  strategy  on  outreach,  with  regular  open  meetings  with 
assemblies  of  judges  and  prosecutors  at  all  levels,  as  well  as  with  civil  society  and 
professional  organisations,  and  set  up  annual  reporting  to  be  discussed  in  courts'  and 
prosecutors' general assemblies. 

CVM  reports  have  consistently  underlined  the  importance  that  the  Superior  Council  of 
Magistracy  (SCM)  contributes  to  the  momentum  of  reform,  articulating  clear  collective 
positions  and  securing  confidence  through  transparency  and  accountability.  The  2018  and 
2019 CVM reports had raised concerns on this matter, and noted that the positions the SCM 
had  taken  on  questions  such  as  the  Section  for  investigating  criminal  offences  within  the 
judiciary  (SIIJ),  key  appointments  and  defending  the  independence  of  justice,  had  raised 
concerns  about  its  institutional  independence  and  authority.  The  work  of  the  SCM  since 
November 2019 has continued to be marked by controversy.  

One important concern relates to the capacity of the SCM to build consensus in the judicial 
system  and  thereby  play  a  constructive  role  in  key  decisions  for  the  organisation  and  the 
functioning  of  the  judiciary.  This  concern  can  be  illustrated  by  the  decision  not  to  engage 

73   The Ministry of Justice reported that by the end of 2019, 32.11% of the indicators were realised, 41.14% 
of  the  indicators  were  in  progress,  25.42%  of  the  indicators  were  not  yet  started,  and  1.34%  of  the 
indicators were not conclusive. 

74   On 7 April 2021, the Constitutional Court held that the  drafting of a criminal judgment subsequent to its 
delivery deprives the convicted person of the right of access to justice and the right to a fair trial (Decision 
CCR  233/2021  of  7  April  2021).  On  12  May,  a  new  law  entered  into  force,  which  requires  that  the 
deliberation, drafting and pronouncing of a judgement in criminal cases should be delivered at the same 
time, within a given deadline after the end of the debates.  

14 

 
                                                           
constructively on the draft justice laws published by the Ministry of Justice for a six months 
public  consultation  in  September  2020:75  the  SCM  did  not  present  a  public  consolidated 
point of view before the end of the public consultation.76  

Another  example  where  the  SCM  has  not  been  able  to  articulate  a  clear  position  and 
contribute to public debate is the reaction of the SCM to the draft law to dismantle the SIIJ. 
Although the draft law from the Minister of Justice was in line with the recommendations of 
the CVM, the Venice Commission  and GRECO, the SCM gave  a negative opinion on the 
draft and called for new safeguards, but despite the long-standing debate on this issue, it did 
not  define  what  these  should  be.  This  meant  that  amendments  to  the  draft  made  in  the 
Chamber of Deputies, which were responding to the SCM by adding safeguards relating to 
the  indictment  procedure  for  judges  or  prosecutors  accused  of  corruption,  did  not  benefit 
from  a  prior  public  debate.  When  the  proposed  safeguards  came  to  light,  they  brought 
critical reactions from within the SCM as well as civil society and the majority of judges and 
prosecutors (see also above).  

The public communication of the SCM, in particular on the independence of the judiciary, 
has  also  been  a  source  of  concern.  The  January  2017  report  had  noted  that  a  pro-active 
approach  by  the  SCM  on  the  independence  of  justice  was  an  important  element  towards 
fulfilling  Benchmark  one.  CVM  reports  have  noted  that  the  SCM  has  not  been  able  to 
provide  a  strong  stance  on  the  matter.  Since  the  last  report,  the  activity  of  the  SCM  in 
defending the independence of the judiciary remains limited.77 It made no comment after the 
landmark  ruling  from  the  European  Court  of  Human  Rights  in  May  2020,  invoking  the 
independence of the judiciary.78 There has also been confusion of roles between the Plenum 
of  the  SCM  –  responsible  under  the  Constitution  for  defending  the  independence  of  the 
justice  system  and  for  opinions  on  legislative  proposals  –  and  the  sections.  In  many 
instances, the role of defence of the independence of the justice system has been taken up by 
the sections, instead of the Plenum.79  

Nevertheless,  there  have  also  been  cases  where  the  SCM  has  been  able  to  surmount  its 
divisions  and  obtain  results,  such  as  in  2020,  when  Parliament  abrogated  the  special 
pensions  of  judges  and  prosecutors,80  or  on  salaries  and  pensions  in  202181.  Similarly,  the 
SCM  contributed  positively  to  a  draft  law  in  February  2021  to  organise  a  competition  for 

75   https://www.csm1909.ro/PageDetails.aspx?FolderId=8305 
76   There has been no public document illustrating the positions of the courts or prosecution offices, nor of the 
SCM,  before  the  end  of  the  consultation  in  March  2021.  The  SCM  sections  for  judges  and  prosecutors 
informed the Commission that they conducted consultation of the judges and prosecutors respectively, and 
that the separate letters were sent to the Minister of Justice. The letters were not made public.  

77   Since the last report, there have been only two cases admitted for the defense of the independence of the 
justice  system  by  the  Plenum  of  the  SCM,  both  based  on  facts  dating  from  early  2019.  The  number  of 
requests  and  the  number  of  request  admitted  for  the  defense  of  the  independence  or  reputation  of 
individual  judges  and  magistrates  also  decreased  with  regard  to  previous  years.  Media  criticism  and 
pressure  on  judges  and  prosecutors  from  media  outlets  and  on  social  media  remains.  The  SCM  has 
however  modified  its  regulation  to  filter  out  cases  which  are  obviously  not  admissible,  so  that  the 
verifications of the Judicial Inspection can be accelerated. 

78   Only the prosecution section published a statement.  
79   The judges section, in particular, and the prosecution section in a few cases, have made a series of  public 
statements  with  regard  to  possible  pressure  on  judicial  independence.  When  a  request  was  rejected  in 
plenum, it was sometimes requalified in the sections. There are also examples where public statements or 
actions were taken by the judges section, whereas the issues at stake concern both judges and prosecutors.  

80   The law was ruled unconstitutional. 
81     SCM Press statement of 18 February 2021. 

15 

 
                                                           
admission  into  profession  in  2021.  It  has  also  continued  to  work  with  the  government  to 
obtain resources for the court and prosecutions offices.82  

The  SCM  has  also  modified  its  regulation  to  improve  access  to  public  information,  and 
making public the drafts of the decisions to  be voted by its Plenum or sections.  Important 
projects  financed  by  EU  funds  have  progressed,  including  a  Unitary  Communication 
Strategy.83  

Concerns on the capacity and accountability of the SCM brought up in 2018 and 2019 CVM 
reports remain. The more consensual tone of the SCM leadership this year will contribute to 
rebuilding trust and unity in the judicial system and allowing the SCM to fulfil the role set 
out in the recommendation and in Benchmark One.  

The Judicial Inspection 

2018 CVM Recommendation: The Superior Council of Magistracy to appoint immediately an 
interim team for the management of the Judicial Inspection and within three months to appoint 
through a competition a new management team in the Inspection.  

2018  and  2019  were  marked  by  controversy  about  the  approach  of  the  SCM  towards  the 
position of the Chief Inspector, as the SCM effectively extended the term of the incumbent, 
despite  the  controversy  relating  to  a  temporary  interim  prolongation  on  the  basis  of  a 
Government Emergency Ordinance. A preliminary ruling request was brought to the Court 
of Justice of the EU on the compatibility with Articles 2 and 19(1) TEU of the power for the 
Government to carry out interim appointments to management positions within the Judicial 
Inspection  responsible  for  conducting  disciplinary  proceedings  against  judges  and 
prosecutors. In its judgment of 18 May 2021, the CJEU ruled that national legislation cannot 
give rise to doubts that the powers of a judicial body responsible for conducting disciplinary 
investigations  and  bringing  disciplinary  proceedings  against  judges  and  prosecutors  might 
be  used  an  instrument  to  exert  pressure  on,  or  political  control  over,  the  activity  of  those 
judges and prosecutors. The Court held that national legislation is likely to give rise to such 
doubts where, even temporarily, it has the effect of allowing the government of the Member 
State concerned to make appointments to the management positions of the body responsible 
for  conducting  disciplinary  investigations  and  bringing  disciplinary  proceedings  against 
judges  and  prosecutors,  by  disregarding  the  ordinary  appointment  procedure  laid  down  by 
national  law.84  The  judgment  revives  the  purpose  of  the  2018  recommendation.  The 
authorities with oversight on the Judicial Inspection, in particular the SCM, will have to take 
the judgment  into due consideration, also  in light  of the repeated concerns raised with  the 
activity of the Judicial Inspection.  

In  recent  years,  judicial  institutions,  including  the  SCM  itself,  have  highlighted  concerns 
with the lack of accountability of the Judicial Inspection, citing the high proportion of cases 
brought  by  the  Inspection  eventually  rejected  in  court,  the  concentration  of  all  decision 
making with the Chief Inspector and the limits on the oversight powers of the SCM.85 More 

82   Several meetings have been organised in 2020, in particular on increasing auxiliary staff in courts 
83   This  aims  to  support  the  communication  activities  of  the  institutions  of  the  judiciary,  courts  and 
prosecutor's  offices,  and  further  develop  the  internal  and  external  communication  and  transparency 
towards the citizen. 

84   Judgment of the Court of Justice of 18 May 2021 in Joined Cases C-83/19, C-127/19, C-195/19, C-294/19, 
C-355/19 and C-379/19 Asociaţia ‘Forumul Judecătorilor Din România’ and Others, paras 200-206. 
85   The Chief Inspector can only be subject to an external audit which is ordered by the Inspection itself, and 

then the audit report is examined only by a selected handful of members in the Council. 

16 

 
                                                           
generally, these developments have raised questions on whether the provisions in the Justice 
laws  for  appointing  the  management  of  the  Judicial  Inspection  and  its  accountability  offer 
sufficient  guarantees  and  achieve  the  right  balance  between  judges,  prosecutors  and  the 
SCM.86  The  new  draft  justice  laws  of  March  2021  on  which  the  Minister  of  Justice 
requested the opinion of the SCM, modifies the provisions on the appointment of the Chief 
and deputy Chief Inspectors, as well as the control mechanisms regarding the activity of the 
Judicial Inspection, giving stronger oversight powers to the SCM and involving the National 
Institute of Magistracy in the competitions for entering the Judicial Inspection.  

In the reporting period, judicial institutions reported an overall reduction  in  the activity of 
the  Judicial  Inspection,  namely  fewer  ex-officio  disciplinary  proceedings  raising  concerns 
about objectivity. However, there remain cases where disciplinary investigations and heavy 
sanctions  on  magistrates  critical  of  the  efficiency  and  independence  of  the  judiciary  have 
raised  concerns.87  The  delays  from  the  part  of  the  Judicial  Inspection  in  examining 
complaints are also seen as a way to maintain pressure on the judge or prosecutor as long as 
the investigation is ongoing.88 

Whilst  focused  on  the  particular  circumstances  at  the  time  of  the  2018  report,  this 
recommendation refers to substantial concerns about the Judicial Inspection. This included 
a pattern of disciplinary proceedings against magistrates publicly opposing the direction of 
reform  of  the  judiciary  and  leaks  of  documents  –  which  were  then  used  by  politicians  to 
attack  judicial  institutions  –  as  well  as  the  prolongation  of  the  management  team.  These 
structural  concerns  remain  to  be  addressed,  including  in  the  light  of  the  recent  CJEU 
judgment. 

Progress on Benchmark One has now restarted. As set out in the detailed assessment of 
progress  on  each  of  the  recommendations,  the  completion  of  the  amendments  of  the 
justice  laws,  the  criminal  code  and  criminal  procedure  code,  in  line  with  the 
recommendations, will be key for measuring progress under Benchmark One. These laws 
are at the core to finding sustainable solutions for the judiciary and decisive progress will 
have an impact on the assessment of many of the recommendations. 

2.2.   Benchmark Two: Integrity framework and the National Integrity Agency  

The National Integrity Agency (ANI) continues to investigate incompatibilities, conflicts of 
interest and unjustified wealth.89 ANI’s work should be facilitated by electronic submissions 

86   The previous law from 2004 stipulated that both the Chief Inspector and the deputy Chief Inspector were 
selected  by  the  SCM  Plenum  through  by  a  competition  including  a  written  test,  an  interview  and  the 
presentation  of  the  management  project.  Since  2018,  the  Chief  Inspector  is  appointed  by  the  SCM, 
following an interview before a commission composed of three judges, one prosecutor and one member of 
civil  society.  However  the  SCM  plenum’s  formal  decision  can  overrule  the  commission  only  on  the 
grounds  that  the  rules  were  not  respected.  The  deputy  Chief  Inspector  and  the  Directors  of  respective 
Sections  are  selected  by  the  Chief  Inspector,  whose  powers  to  organise  the  inspection  have  also  been 
increased.  

87   Examples  include  disciplinary  proceedings  with  proposal  of  preventive  suspension  from  office  until  the 
finalisation of the disciplinary investigation and the decision of the SCM against judges from magistrate 
associations  who  have  resisted  the  backwards  changes  of  2017-2019  and  brought  preliminary  ruling 
requests  to  the  European  Court  of  Justice  (the  disciplinary  investigation  concern  group  conversations 
leaked from a private social network group) ; and a judge suspended for 6 months for publicly criticising 
the Judicial Inspection and the functioning of the SIIJ. 

88    Information received during the CVM missions. 
89   During 2020, the National Integrity Agency finalised 1.143 cases and 175 cases have  remained definitive 
and irrevocable. In 2020, 204 administrative fines  were  applied, for failure to  submit assets and interest 

17 

 
 
                                                           
 
of assets and interest disclosures, which became operational in May 2021, following a July 
2020 amendment of the law on integrity in exercising the public offices and dignities.90 ANI 
reports  that  its  2020  budget  was  sufficient  to  carry  out  its  tasks,  as  the  initially  reduced 
budget was supplemented later in the year.91 ANI faces some uncertainty over its leadership 
positions.  The  position  of  the  President  has  been  vacant  since  December  2019  and  the 
mandate  of  the  Vice-President  expires  in  2021.92  Selection  procedures  were  eventually 
initiated in April 2021.  

ANI  had  an  active  role  during  local  and  national  elections  in  2020,  raising  awareness  of 
integrity  rules  for  candidates  and  sharing  information  with  the  relevant  authorities  on 
candidates who are under interdiction to hold a public office. This is seen as one reason for 
relatively little controversy in the elections around the respect for integrity rules.93 

The 2019 CVM report concluded that there was a risk of backtracking on Benchmark Two. 
A series of amendments modifying the integrity laws, notably in 2017-2019, had the effect 
of weakening the ability of  ANI to carry out its work. Two proposals that entered into force 
in  2019  had  further  increased  legal  uncertainty  as  regards  the  applicable  integrity  regime. 
This  risked  backtracking  on  Benchmark  Two  if  ‘dissuasive  sanctions’  could  no  longer  be 
imposed,  despite  a  final  court  decision.94  The  report  concluded  that  the  legislative 
developments on the integrity laws should be clarified in order to avoid such a risk.  

In 2020 and 2021, the High Court of Cassation and Justice clarified the interpretation of the 
law.  The  Court  ruled  that  the  sanction  applies,  even  if  the  incompatibility  concerns  a 
previous  mandate,  and  that  a  limitation  period  of  three  years  should  refer  to  the  need  for 
ANI to finalise an investigation within three years of the facts that determine the existence 
of a state of conflict of interest or incompatibility (rather than the sanction not applying after 
three years).95 ANI has welcomed these decisions, which restore clarity and certainty in the 
possibility to impose sanctions after a final court decision.  

ANI and stakeholders have highlighted the need to further improve the stability and clarity 
of the legal  framework  for integrity.  The previous  legislature  was marked by  a number of 
amendments  remaining  pending  in  Parliament  despite  a  negative  opinion  from  ANI.  This 
uncertainty  has  been  partly  dispelled  under  the  new  Parliament,  with  five  pending 
amendments raising concerns having definitely been rejected by the chambers of Parliament. 

disclosures in legal terms, for non-disciplinary sanctions applied after the ascertaining act remained final, 
and for failure to comply with the legal provisions. 

90   Amendment  to  the  Law  no.  176/2010  regarding  integrity  in  exercising  the  public  offices  and  dignities. 

From 2022 onwards, electronic submission will be compulsory.  

91   Initial budget was 34.802.000 RON, while the final budget was 37.432.000 RON.  
92   No competition was organized in 2020 as the National Integrity Council (CNI), the body that supervises 
the  activity  of  ANI  and  has  the  competence  to  organise  the  competition  for  selecting  the  president  and 
vice-president,  could  not  reach  a  quorum  as  the  Senate  had  not  nominated  new  members  since  2018. 
Eventually new members were appointed in March 2020, and the CNI could start preparing the rules for 
the competition.  

93   A  number  of  problems  of  enforcement  remain  and  the  result  was  inconsistency.  The  authorities 
responsible  for  validating  candidacies  or  mandates  in  the  local  elections  disregarded  the  interdiction  to 
occupy an elected office and allowed candidates to run in elections. There were also cases where a number 
of authorities invalidated the newly obtained mandates of persons under this interdiction.  

94   The first amendment set a prescription deadline of three years from the deeds that determine the existence 
of a state of conflict of interest or incompatibility, and resulted in the closure of a high number of ongoing 
cases  and  doubts  on  the  possibility  to  impose  sanctions.  The  second  amendment  introduced  a  lowered 
sanctioning regime regarding  conflict of interests for local  elected officials,  which  ANI  considered does 
not allow for dissuasive sanctions. 

95   HCCJ Decision of 16 November 2020 and HCCJ Decision 1/2021  

18 

 
                                                                                                                                                                                   
Removing all pending amendments with a negative opinion from ANI96 would open the way 
for  more  orderly  amendments  and  consolidation  of  the  integrity  legal  framework.  A 
consolidation of the laws on integrity, incompatibilities and conflicts of interest would allow 
case-law  and  corruption  prevention  policies  to  be  taken  into  account  and  provide  a  stable 
basis for the future. GRECO could provide useful advice on this issue in the preparation of 
this law. 

The PREVENT System 

2017 CVM Recommendation: Ensure the entry into operation of the PREVENT system. The 
National Integrity Agency and the National Public Procurement Agency should put in place 
reporting  on  the  ex-ante  checks  of  public  procurement  procedures  and  their  follow-up, 
including  ex  post  checks,  as  well  as  on  cases  of  conflicts  of  interest  or  corruption 
discovered, and the organisation of public debates so that the government, local authorities, 
the judiciary and civil society are invited to respond. 
The PREVENT system is fully operational and ANI reports positive results.97 In particular, 
ANI highlights a continued reduction in the number of conflicts of interests since the start of 
the PREVENT system, as awareness increases within public authorities.  

The  November  2018  report  considered  this  recommendation  fulfilled  and  its  continued 
effective implementation illustrates the sustainability of this system. 

Follow-up of court decisions concerning Members of the Parliament 

2017 CVM Recommendation: The Parliament should be transparent in its decision-making 
with regard to the follow-up to final and irrevocable decisions on incompatibilities, conflicts 
of interests and unjustified wealth against its members. 

The last two CVM reports pointed at delays and apparent inconsistencies in the application 
of sanctions against Members of Parliament found to hold incompatible functions or to be in 
a  state  of  conflict  of  interest  by  a  final  court  decision  following  a  report  from  ANI.  The 
reports  highlighted  a  possible  divergent  interpretation  of  the  rules  (notably  when  the 
integrity  incident  occurred  in  a  previous  mandate  or  position)  and  suggested  a  need  for 
clarity in a way which fulfils the CVM benchmark of securing ‘mandatory decisions on the 
basis of which dissuasive sanctions can be taken’.  

The  cases  disputed  between  ANI  and  the  Parliament  in  the  previous  legislature  remained 
unresolved by the Parliament, and the sanctions were never applied.  

The  approach  of  the  current  Parliament  is  significantly  different.  As  part  of  the  validation 
process  following  the  elections,  the  Validation  Committee  of  the  Romanian  Senate  asked 
ANI  to  communicate  definitive  and  irrevocable  decisions  issued  by  courts  regarding 
incompatibilities or conflict of interests of the elected Senators. ANI found that none of the 
elected Senators were under the interdiction to occupy an office. The Chamber of Deputies 
has  requested  ANI’s  point  of  view  regarding  the  disclosure  made  by  a  series  of  deputies, 
with respect to their potential incompatibilities.98 

96   For example, a proposal to amend the Administrative Code, last discussed in May 2020, remains pending 

before the Chamber of Deputies.  

97   In  2020,  the  PREVENT  system  analysed  19,140  procurement  procedures,  in  order  to  identify  possible 
conflicts of interest. In 2020, the integrity inspectors issued 10 integrity warnings, representing some €11.1 
million. 

98   The Statute of Deputies and Senators stipulates that they must disclose their state of incompatibility within 

15 days and, within 30 days, resign from one of the offices that generated the incompatibility. 

19 

 
                                                           
The  experience  under  the  previous  legislature  cast  doubt  on  the  fulfilment  of  this 
recommendation.  The  new  proactive  cooperation  under  the  new  Parliament  could  mark  a 
turn in the implementation of integrity laws and final court decisions regarding Members of 
Parliament.  A similar approach when new cases of incompatibility or conflicts of interest 
are  asserted  concerning  sitting  parliamentarians  would  lead  to  the  fulfilment  of  this 
recommendation. 

The risk of backtracking on Benchmark Two identified in 2019 linked to modifications of 
the integrity legal framework have been mitigated. There are encouraging signs that the 
new  legislature  could  set  a  clear  path  towards  sustainability  of  ANI  and  the  legislative 
framework on integrity and fulfilling the remaining recommendation. 

 2.3   Benchmark Three: Tackling High-level corruption 

The National Anti-Corruption Directorate and the fight against high-level corruption 

In the November 2019 report, the Commission expressed strong concerns and reiterated its 
conclusion from November 2018 that the basis for the positive assessment reached in respect 
of  Benchmark  Three  in  January  2017  had  been  reopened  by  Romania.  The  2019  report 
recognised that both the National Anti-Corruption Directorate (DNA) and the High Court of 
Cassation  and  Justice  had  continued  to  investigate  and  sanction  high-level  corruption  and 
demonstrated professionalism in very difficult circumstances, managing to maintain a strong 
track  record.  The  report  also  concluded  that  the  attacks  on  their  activities,  the  successive 
changes  to  the  applicable  legal  framework  and  the  possible  challenge  to  the  authority  of 
final judgements raised questions about the sustainability of Romania’s achievement in the 
fight against high level corruption.  

The  situation  has  improved  since  the  2019  report.  The  appointment  of  a  new  DNA  Chief 
Prosecutor  and  other  management  positions  in  2020  has  brought  new  impetus  and 
institutional stability. This has translated into an increased focus on ensuring the quality of 
the investigations and the files brought  to  court. In 2020, DNA managed to  achieve better 
results than in  2019, with an increase in  the number of indictments  and a reduction in  the 
backlog.99  There  was  also  progress  at  the  level  of  the  courts,  with  an  increase  in  court 
decisions.100 In 2020, the number of complaints from citizens and  ex-officio complaints on 
alleged  corruption  crimes  have  increased,  a  change  from  the  decreasing  trend  since  2015. 
The  DNA  sees  this  as  a  sign  of  renewed  confidence  from  the  public,  which  had  been 
seriously  affected  by  the  attacks  on  DNA  in  the  2017-2019  period.  The  communication 
policy of the DNA was also changed in 2020, so that names of the suspects are no longer 
mentioned in the press releases when investigations are opened, limiting public exposure for 
suspects.  

However,  important  challenges  remain  as  to  the  sustainability  of  the  DNA  and  the 
irreversibility of the fight against corruption. The 2018-2019 amendments to the justice laws 
represented a major impediment for the good functioning of the DNA, which will continue 
for  as  long  as  they  are  in  force.  The  general  problems  faced  by  the  judicial  system  (see 

99   In 2020, the files mainly dealt with public procurement, bribery, EU funds fraud. DNA also registered 105 

files of corruption in relation to combatting the COVID-19 pandemic. 

100   The increase reflects the results of all courts dealing with DNA cases. The High Court of Cassation and 
Justice solved less cases: in first instance 3 cases in 2020 and one in 2021, in last instance 4 cases in 2020. 
In  2020  8  cases  were  suspended.  Overall  the  Court  reports  that  fewer  cases  have  been  registered.  DNA 
also reports a lower proportion of acquittals in 2020, though the number in 2019 was inflated due to the 
decriminalisation of offences. 

20 

 
                                                           
above)  have  been  particularly  difficult  for  DNA.101  DNA  has  faced  a  human  resources 
deficit,102  adding  more  pressure  on  prosecutors  at  a  time  when  DNA  faced  the  extra 
challenge of developing its own technical capacity to implement court orders using special 
investigation  techniques.103  In  addition,  the  effective  treatment  of  some  high-level 
corruption cases continues to be adversely affected by the Section for investigating criminal 
offences  within  the  judiciary  (SIIJ),  which  continues  to  intervene  in  ongoing  high-level 
corruption files investigated by the DNA, and to create delays which risk to negatively affect 
those  cases.104  SIIJ  handling  of  complaints  against  prosecutors  from  persons  convicted  for 
corruption has also been seen as putting pressure on DNA prosecutors.  

The  other  important  challenge  in  the  fight  against  corruption  is  the  absence  of  policy  and 
legislative  solutions  to  the  rapid  succession  of  far  reaching  Constitutional  Court  decisions 
annulling or interpreting provisions of the criminal code and criminal procedure code since 
2014.  This  situation  has  led  to  increased  obstacles  and  legal  uncertainty  regarding  the 
investigation, prosecution and sanctioning of high-level corruption cases. It has led to cases 
failing in court, legal uncertainty on the admissibility of evidence, as well as to the restart of 
investigations  or  trials.105  The  impact  on  ongoing  high-level  corruption  cases  of  the 
Constitutional Court rulings regarding the composition of the 3-judges panels for high-level 
corruption cases and 5-judges final appeal panels at the High Court of Cassation and Justice 
has yet to unfold.106 In its recent judgment, the EUCJ held that the principle of primacy of 
EU  law  precludes  national  legislation  with  constitutional  status,  which  deprives  a  lower 
court of the right to disapply of its own motion a national provision falling within the scope 
of  the  CVM  framework  and  which  is  contrary  to  EU  law.  Where  it  is  proved  that  the  EU 
Treaty or the CVM Decision has been infringed, the principle of the primacy of EU law will 
require  the  referring  court  to  disapply  the  provisions  at  issue,  whether  they  are  of  a 
legislative or constitutional origin.107 

While the leadership in the DNA and a supportive Government have improved the situation, 
some  important  challenges  remain  for  the  good  functioning  of  the  DNA  to  be  sustainable 
and  for  the  irreversibility  of  the  fight  against  corruption.  The  Government’s  intentions  to 
amend  both  the  justice  laws  and  the  criminal  code  and  criminal  procedure  code  will  be 

101   General  issues  regarding  human  resources  for  the  judiciary  also  affecting  DNA  include  restrictions  to 
delegations,  important  number  of  retirements.  Specific  issues  for  DNA  include  that  the  seniority 
requirements  for  working  in  the  DNA  abruptly  changed  to  10  years,  and  the  oral  examination  for  non-
management posts before the SCM is broadcast (contrary to other prosecution departments), which acts as 
a deterrent for candidates. The seniority requirement for heads of section is 15 years. 

102   In March 2021, DNA reports that only 75% of posts were filled (131 nominated and 14 delegated out of 

145 positions), and that 2 leadership positions were vacant.  

103   A pending Government Decision should supplement the DNA with 90 police officers.  
104   See Benchmark One on Justice laws 
105   DNA  estimates  that  in  2020,  at  least  45  suspects  were  acquitted  as  a  consequence  of  the  Constitutional 
Court  decisions.  A  recent  CCR  Decision  of  6  April  2021  further  impacts  at  least  67  ongoing  DNA 
investigations, as investigations will need to be restarted. 

106   Although the decisions of the Constitutional Court do not apply to past cases where a final judgement has 
been rendered, they may have consequences for ongoing cases. The 5-judges panel decision has allowed 
for extraordinary appeals of final cases in certain conditions, while the 3-judges panel decision could entail 
the  restart  of  trial  with  a  new  designated  panel.  DNA  reports  that  8  cases  involving  41  defendants  are 
currently  suspended  at  the  High  Court  of  Cassation  and  Justice,  that  10  cases  involving  107  defendants 
have restarted at first instance, and 5 cases with 90 defendants are restarted from the preliminary chamber. 
Preliminary ruling requests concerning certain cases are pending.  

107   Judgment of the Court of Justice of 18 May 2021 in Joined Cases C-83/19, C-127/19, C-195/19, C-294/19, 

C-355/19 and C-379/19 Asociaţia ‘Forumul Judecătorilor Din România’ and Others, paras 251-252 

21 

 
                                                           
important steps to putting the work against high-level corruption on a further consolidated 
basis.  

Lifting of immunity of Members of Parliament 

2017 CVM Recommendation: Adopt objective criteria for deciding on and motivating lifting 
of  immunity  of  Members  of  Parliament  to  help  ensure  that  immunity  is  not  used  to  avoid 
investigation  and  prosecution  of  corruption  crimes.  The  government  could  also  consider 
modifying  the  law  to  limit  immunity  of  ministers  to  time  in  office.  These  steps  could  be 
assisted by the Venice Commission and GRECO. The Parliament should set up a system to 
report regularly on decisions taken by its Chambers on requests for lifting immunities and 
could organise a public debate so that the Superior Council of Magistracy and civil society 
can respond. 

This recommendation concerns the accountability of Parliament in its decisions on requests 
from  the  prosecution  to  authorise  preventive  measures  such  as  searches  or  arrests  and  on 
requests to authorise the investigation of a Member of Parliament when he/she is also or has 
been a Minister. The lack of reasoning of decisions taken by the Parliament – as well as the 
number  of  occasions  when  Parliament  did  not  allow  investigation  to  proceed  –  led  to 
concerns about the objectivity of these decisions. The 2019 CVM Report welcomed that in 
June  2019,  the  Chamber  of  Deputies  amended  its  rules  of  procedure  and  made  specific 
reference  to  the  criteria  set  out  in  the  Venice  Commission’s  report  on  the  purpose  and 
waiver  of  parliamentary  immunity.108  The  Report  also  encouraged  the  Senate  to  adopt 
similar rules, but there has been no development in this regard.  

In  the  reporting  period,  the  Chamber  of  Deputies  approved  the  request  to  authorise  the 
investigation of a former Minister and Deputy in October 2020; the Senate also approved the 
request  to  authorise  the  investigation  of  a  former  Minister  and  Senator,  despite  a  first 
negative opinion of the Legal Committee.  

The approach in Parliament has evolved in a positive direction and continued steps in both 
chambers would allow for a re-assessment of the fulfilment of the recommendation. 

The  situation  in  respect  of  Benchmark  Three  has  improved  since  the  last  assessment  in 
2019. The completion of the reforms mentioned above, both of the justice laws, including 
the dismantling of the SIIJ, and of the criminal code and criminal procedure code, will be 
important steps towards fulfilment of the benchmark. 

2.4 

Benchmark Four: Tackling Corruption at all levels 

108   In its report of March 2021, GRECO notes that an informal requirement for prosecutorial bodies to submit 
the whole file when prosecuting a minister or a former minister who is also a member of Parliament has 
apparently been lifted by a letter. Greco RC4(2021)1 

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National Anti-Corruption Strategy 

2017 CVM Recommendation: Continue to implement the National Anti-corruption Strategy, 
respecting  the  deadlines  set  by  the  government  in  August  2016.  The  Minister  of  Justice 
should put in place a reporting system on the effective implementation of the National Anti-
corruption  Strategy  (including  statistics  on  integrity  incidents  in  public  administration, 
details of disciplinary procedures and sanctions and information on the structural measures 
applied in vulnerable areas). 

Progress  on  the  National  Anti-Corruption  Strategy  and  thus  on  Benchmark  Four  is  a  key 
national  priority  on  the  political  agenda  of  the  Government.  The  2016-2020  National 
Anticorruption Strategy came to  an end in 2020, and the Ministry of Justice reports that it 
has  achieved  progress,  although  it  has  been  uneven,  in  particular  in  vulnerable  areas.  The 
2016-2020  Strategy  ensured  improved  procedures  to  target  high  risk  sectors  with 
vulnerabilities  to  corruption,  increase  the  institutional  transparency  and  effectiveness  of 
preventive  measures  accompanied  by  a  decrease  of  integrity  incidents  and  an  improved 
service to citizens (including through digitalisation). An internal evaluation and an external 
audit (performed by the OECD) are currently ongoing, in view to informing the preparation 
of the new National Anti-Corruption Strategy (2021-2025). Key features of the 2016-2020 
strategy are considered best practices among participating institutions and will be continued 
in  the  next  strategy,  notably  the  peer-review  monitoring  mechanism  and  the  participatory 
decision-making  process  through  the  platforms.  The  Ministry  of  Justice  has  nevertheless 
pointed  out  that  the  effectiveness  of  the  strategy  relies  on  a  specialised  dedicated 
implementation,  and  in  particular  on  the  political  will  to  give  impetus  for  the 
implementation  of the measures in  all participating  administrations and public institutions, 
including  at  local  level.  The  evaluations  are  being  finalised,  and  the  Ministry  of  Justice 
organised  a  public  consultation  with  the  five  anti-corruption  platforms  (regrouping 
stakeholders) on the new Strategy, and expects to propose the adoption of the new national 
Anti-Corruption  Strategy  by  the  end  of  2021.  The  adoption  of  the  new  strategy  for  2021-
2025  will  be  the  opportunity  to  translate  the  political  priorities  of  the  Government  into 
concrete actions.  

One  of  the  objectives  of  the  strategy  is  to  improve  performance  in  the  fight  against 
corruption by imposing criminal and administrative sanctions. Since the October 2019 CVM 
report, the General Prosecution Service has continued the effective prosecution of corruption 
and  corruption-assimilated  offences.109  However,  the  challenges  affecting  the  fight  against 
high-level corruption (see Benchmark Three) also impact the investigations and trials under 
the  competence  of  the  prosecution  in  general.  The  General  anti-Corruption  Directorate 
(DGA) inside the Ministry of Interior carried out investigations under direct coordination of 
case prosecutors, and pursued corruption prevention projects within the Ministry. 

In summary, further work is needed on the national Anti-Corruption Strategy to ensure an 
effective implementation and step up the prevention and fighting of corruption in vulnerable 
areas  and  at  local  level.  The  evaluations  of  the  strategy  and  strong  political  commitment 
will provide the basis to allow progress to be assessed under the rule of law mechanism.  

National Agency for the Management of Seized Assets 

109   In 2020, more than half of the files concerned bribery, with a proactive focus in investigating corruption 
allegations concerning public administration officials (holding elective functions of mayor and vice-mayor, 
as well as statutory staff). 

23 

 
                                                           
Recommendation: Ensure that the National Agency for the Management of Seized Assets is 
fully  and  effectively  operational  so  that  it  can  issue  a  first  annual  report  with  reliable 
statistical information on confiscation of criminal assets. The Agency should put in place a 
system to report regularly on development of administrative capacity, results in confiscation 
and managing criminal assets.  

In 2021 the National Agency for the Management of Seized Assets (ANABI) entered into its 
fifth year of activity and is further developing its activity. Based on the lessons learned since 
it became operational in December 2016, ANABI is putting forward a National Strategy for 
Strengthening  the  Asset  Recovery  System  for  2021-2025,  which  includes  legislative 
proposals  to  extend  its  mandate  and  aims  to  increase  the  capacity  to  trace  assets  both 
nationally and internationally, enhance cooperation mechanisms, and provide new tools for 
police  and  prosecutors  in  order  to  better  conduct  financial  investigations  and  setting  up  a 
National Fund for Crime Prevention. 

Previous  CVM  reports  had  concluded  that  this  recommendation  is  fulfilled  as  ANABI  is 
operational. ANABI continues to operate in line with this recommendation. 

Progress  on  Benchmark  Four  could  be  accelerated  and  strengthened  with  the 
development of the new Anti-Corruption Strategy 2021-2025, and a strong commitment to 
translate  political  priorities  into  concrete  actions  on  the  ground  including  in  vulnerable 
areas and at local level.  

4.  

CONCLUSION  

Since  the  last  CVM  report  in  2019,  the  situation  within  the  parameters  of  the  CVM 
benchmarks has seen a clear positive trend. The Commission welcomes the fact that a strong 
renewed  impetus  has  been  given  in  2021  to  reform  and  to  repair  the  backtracking  of  the 
2017-2019  period.  The  result  is  that  there  is  progress  across  all  the  remaining  CVM 
recommendations and many are on the path to being fulfilled if progress remains steady. The 
Commission  looks  forward  to  the  Romanian  authorities  translating  this  commitment  into 
concrete  legislative  and  other  measures.  The  judgment  of  the  Court  of  Justice  of  18  May 
2021 provides a clear framework and direction in the ongoing reforms to satisfactorily fulfil 
the  CVM  benchmarks,  in  full  respect  of  the  rule  of  law  and  of  EU  law  generally.  It  is 
essential  that  the  judgement  is  duly  reflected  in  the  new  legislation  to  be  adopted.  The 
Commission  will  continue  to  monitor  developments  closely  through  the  CVM  until  the 
benchmarks  are  met,  and,  in  parallel,  will  continue  to  work  with  Romania,  as  with  all 
Member States, in the context of the general rule of law mechanism, a key building block in 
the common commitment of the EU and the Member States to reinforce the rule of law. As 
indicated  in  the  Rule  of  Law  Communication  of  September  2020110,  once  the  CVM  ends, 
monitoring will continue under horizontal instruments. The rule of law mechanism provides 
the  framework  for  taking  these  issues  forward  in  the  future.  The  Commission  is  confident 
that Romania can fulfil the benchmarks of the CVM if it continues along the current positive 
trend  and  resolutely  adopts  and  implements  the  reforms  engaged.  The  Commission  stands 
ready to help the Romanian authorities to this end.  

110 COM(2019) 343 

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