Upon request from magistrates’ associations Courts should to refer questions to the European Court of Justice regarding Romania’s lack of compliance with the MCV recommendations / Savonea, CSM Chief: European Commission recommendations can not be applied „as blindly as religious injunctions”

The Romanian Judicial Forum Association (FJR) and the Movement for the Defense of the Prosecutor’s Status (MASP) have asked the courts to address some questions to the European Union Court of Justice (EUCJ) regarding Romania’s obligation to comply with the recommendations of the Cooperation and Verification Mechanism (MCV) of the European Commission (EC).

FJR and MASP have requested this in two trials, one lodged with the Olt Tribunal in which the FJR challenges the Government appointment of the Interim Management of the Judicial Inspection (IJ) by Emergency Decree, and the other lodged at the Alba Iulia Court of Appeal, in which Romanian Attorney General Augustin Lazar challenged his revocation procedure triggered by Justice Minister Tudorel Toader.

In both cases, professional associations of magistrates have argued that Romania, a member of the EU, must comply with the European Commission’s recommendations, that Bucharest is obliged to immediately suspend the procedures for the dismissal of senior magistrates, and the Government should not interfere with the SCM’s attributions and should not have appointed the interim leadership of the Judicial Inspectorate by emergency decree.

As a result of the Romanian State’s failure to comply with these provisions, the referral by the Court of Justice of the European Union becomes the main legal instrument for the non-infringement of the European Union’s obligations, ” FJR argued.

The four questions that the FJR asks the Olt Tribunal to address to the EUCJ:

‘First question: Can the Cooperation and Verification Mechanism (CVM) established by European Commission Decision 2006/928 / EC of 13 December 2006 be regarded as an act adopted by an institution of the European Union within the meaning of Article 267 TFEU, and be subject to the interpretation of the Court of Justice of the European Union? (…)

Second question: Are the content, nature and temporal extent of the Cooperation and Verification Mechanism (MCV) established by the European Commission Decision 2006/928 / EC of 13 December 2006 covered by the Treaty concerning the accession of the Republic of Bulgaria and Romania to the European Union, signed by Romania in Luxembourg on 25 April 2005? Are the requirements set out in the reports drawn up under this Mechanism binding for the Romanian State? (…)

Questions 3 and 4: Must the second paragraph of Article 19 (1) of the Treaty on European Union be interpreted as requiring Member States to lay down the necessary measures for effective legal protection in the areas covered by European Union law, namely guarantees of a procedure independent discipline for judges in Romania, removing any risk related to the political influence on the conduct of disciplinary procedures, such as the direct designation by the Government of the leadership of the Judicial Inspection, even on a provisional basis?

Must Article 2 of the Treaty on European Union be interpreted as requiring Member States to comply with the criteria of the rule of law also required in the reports of the Cooperation and Verification Mechanism (MVC) established under Commission Decision 2006/928 / EC of the European Parliament and of the Council December 13, 2006, in the case of procedures for the direct designation by the Government of the management of the Judicial Inspection, even on a provisional basis? „, shows FJR’s application for a preliminary ruling under Article 267 TFEU to the Olt Tribunal.

The four questions MASP requests CA Alba Iulia to address to the CJEU:

‘First question: Must the Cooperation and Verification Mechanism (CVM) established by European Commission Decision 2006/928 / EC of 13 December 2006 be regarded as an act adopted by an institution of the European Union within the meaning of Article 267 TFEU and be subject to the interpretation of the Court of Justice of the European Union?

Second question: Is the content, nature and temporal extent of the Cooperation and Verification Mechanism (MCC) established by the European Commission Decision 2006/928 / EC of 13 December 2006 covered by the Treaty concerning the accession of the Republic of Bulgaria and Romania to the European Union , signed by Romania in Luxembourg on 25 April 2005? Are the requirements set out in the reports drawn up under this Mechanism binding for the Romanian State?

Third question: Must the second subparagraph of Article 19 (1) of the Treaty on European Union be interpreted as requiring Member States to determine the measures necessary for effective legal protection in the areas covered by European Union law in the case of revocation procedures high level prosecutors with a political factor – the Minister of Justice of Romania, in violation of the Cooperation and Verification Mechanism (MCV), established in accordance with the European Commission Decision 2006/928 / EC of 13 December 2006, and of the Reports it?

Question 4: Must article 2 of the Treaty on European Union be interpreted as requiring Member States to comply with the criteria of the rule of law as required by the Cooperation and Verification Mechanism (MCC) reports established pursuant to Commission Decision 2006/928 / EC To the European Commission on December 13, 2006, in the case of procedures for the dismissal of high level prosecutors, ordered by a political factor – the Minister of Justice in Romania? ”

The Olt Tribunal and the Alba Court of Appeal must decide whether to address these questions to the EUCJ.

The SCM has derided the EC’s recommendations in the MCV. At the Wednesday session of the SCM Judges Section, magistrate Mihai Balan asked his colleagues to suspend the procedures for setting up the Special Section for Investigation of Criminal Offenses (SIIJ) within the General Prosecutor’s Office (PG) following the MCV, the Venice Commission, GRECO and other European bodies requests. Romania is a member of all these bodies.

„At the beginning of December, we submitted a request through the SCM chairman, on the basis of the European Commission’s report published in November 2018, to request institutional measures to terminate this procedure for the appointment of prosecutors to the Special Section. As you well know, one of the main criticisms to the amendments to the Laws of Justice and the judiciary concerned this special section which, according to the European Commission, but also the Venice Commission and GRECO, does not provide the necessary guarantees that must be offered to magistrates. In order to address this situation, the MCV recommends among other things that measures be taken to immediately suspend the implementation of the laws of the judiciary and successive emergency decrees. These recommendations in the MCV Report are mandatory, the Romanian Constitutional Court tells us by Decision 2/2012, which states that the EU membership status requires the state to do this and to follow the recommendations set forth in this case, ” said Mihai Balan.

He was immediately countered by the judges Lia Savonea, Evelina Oprina and Gabriela Baltag and then scorned in the press favoring the defendants.

„I have to admit there is great despair in this section, unfortunately. I do not understand why, because things are only beneficial. I understand from our dear colleague, because today I hear about this request made, it would have been good to ask us, the other judges, given we can also think for ourselves… I understand you invoke the MCV, right? Those who fight for the independence of the judge invoke the recommendation of a political body, ” judge Gabriela Blaltag affirmed, using her colleague, Mihai Balan, very ill indeed, as he dared to invoke the EC recommendations.

Judge Evelina Oprina also intervened „I have before me Constitutional Court Decision no. 33/2018, which verified Law no. 304/2004, there is even a paragraph, 129, where the CCR analyzes the provisions of art. 148 of the Constitution regarding the priority of application of the provisions, the EU constituent treaties and other binding Community regulations. And the CCR notes that no binding European act has been invoked by anybody in favor of any criticism regarding this Section.”

Lia Savonea, new SCM head, attacked by saying: Specifically, given the errors present in the last report, we must be clear that we can not obey such recommendations blindly like religious injunctions, and not comment on them, or discuss them. Especially when they contain verifiable things that contradict the provisions of the law and the Code of Criminal Procedure. They were obvious”

What happened to Poland at the EUCJ. On December 18th Polish President Andrzej Duda promulgated the law lowering the retirement age of judges of the Warsaw Supreme Court from 70 to 65 years. This measure was a reversal of a previous one which had led to the forced withdrawal of several judges in July, including the President of the Court.

The decision of the Polish head of state came after the European Court of Justice (CJEU) decided 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.

Traducerea: Ruxandra Stoicescu