Unusual course of action. Two magistrates’ associations have asked the President of the EU Court of Justice to suspend the activity of the Criminal Investigation Section in the Judiciary. Koen Lenaerts could make a decision in March

Two Magistrates’ Associations, the Romanian Judges’ Forum (FJF) and the Prosecutors’ Movement Movement, have asked the President of the EU Court of Justice (CJEU) Koen Lenaerts to institute interim measures in the lawsuits opened by these associations at the CJEU requesting the European Court to clarify whether Romania must comply with the recommendations of the European Commission in the framework of the MCV and the Treaty on the Functioning of the EU. This approach passed under the pundits’ radar, even if for magistrates in Romania, it represents a novel action.

The interim measures requested by the associations. For example, in the lawsuits open at the CJEU, the associations have asked CJUE President Koen Lenaerts to order interim measures, i.e. to request the Romanian State to suspend the activity of the Criminal Investigation Section (SIIJ) within the General Prosecutor’s Office.

„Both in Case C-83/19 and Case C-127/19 before the CJEU, the President of the Court was required to order interim measures, as in the case of the Polish application. That means suspending the application of the legislative provisions relating to those references. The President of the CJEU can take whatever provisional measures he deems necessary, „sources told G4media.

„This is a procedure similar to the ones in Romania, a request for suspension until the ruling on the merits of the case,” sources explained to G4media .

When the CJUE President might pronounce himself. The requests were made by the two associations on 15 and 20 February 2019, respectively. In the case of Poland, requests for interim measures were admissible within 18 days of filing.

„In the case of Poland, provisional measures were taken in October 2018, confirmed in December 2018, now, the pleadings took place in February, and the final decision is expected for March 2019,” explained sources for G4media.

What if Romania does not comply with CJEU decisions. „There are no cases in which Member States do not comply with CJEU decisions. Requests for interim measures were only for Poland, „a CJEU practitioner explained for G4media. Otherwise, the European Court could impose financial sanctions on Romania.

According to Article 260 of the Treaty on the Functioning of the EU:

„1. Where the Court of Justice of the European Union finds that a Member State has failed to fulfill one of its obligations under the Treaties, that State shall be required to take the necessary measures to comply with the judgment of the Court of Justice.

2. If it considers that the Member State concerned has not taken the necessary measures to comply with the judgment of the Court of Justice, the Commission may refer the matter to the Court, after having given the State concerned the opportunity to submit its observations. The Commission shall indicate the amount of the lump sum or penalty payment that the Member State concerned has to pay and which it considers appropriate to the situation.

If the Court finds that the Member State concerned has not complied with its judgment, it may impose a lump sum or periodic penalty payment, ” the Treaty states on the Functioning of the EU.

The nuclear option. In addition, Angela Cristea, head of the European Commission Representation in Bucharest, said on Friday in an interview with RFI that Brussels has several intervention tools to respond to violations of the rule of law principles in Romania, including the infringement procedure and the „nuclear option”: triggering Article 7 of the EU Treaty (suspension of voting rights in the EU).

Poland has respected the CJEU’s decision. Polish President Andrzej Duda promulgated on 18 December 2018 the law abolishing the retirement age of judges of the Supreme Court in Warsaw from 70 to 65, which led to the forced withdrawal of more in July judges, including the President of the Court.

The decision of the head of the Polish state came after the European Court of Justice (CJEU) deciding that Poland should immediately suspend the application of the new law on reducing the retirement age of judges of the Supreme Court, solving a dispute between Warsaw and Brussels.