The Advocate General of the Court of Justice of the European Union (CJEU), Michal Bobek, delivered his Opinion on Wednesday 23 September on the nature, legal value and effects of the Cooperation and Verification Mechanism (CVM) and the periodic reports adopted on the basis of that mechanism (Joined Cases C-83/19, C-127/19 and C-195/19, as well as Cases C-291/19, C-355/19 and C-397/19).
His Opinion follows requests made to the Court by Romania after the CVM reports for the years 2018 and 2019 gave a negative assessment of several changes to the Romanian judicial system.
These reports are drawn up by the Commission periodically, on the basis of a decision adopted in 2006 (2006/928), in order to assess Romania’s (and Bulgaria’s) progress with regard to the independence and functioning of the judiciary in the country.
Following Romania’s requests, the Court must rule on the conformity of three aspects of the reform of the Romanian judicial system with EU law: the appointment of the Interim Head of the Judicial Inspectorate ; the creation of a specific section within the Public Prosecutor’s Office responsible for investigating offences committed by magistrates; amendments to the provisions on the material liability of judges.
In his Opinion, the Advocate General considers first of all that the decision establishing the CVM, as an act of the Union, is legally binding on Romania. However, CVM periodic reports are not legally binding, he adds.
Thus, while Romania can design its national institutions and procedures as it sees fit, it must demonstrate how they contribute to achieving the benchmarks set out in the CVM Decision (2006/928).
Next, Mr Bobek points out that the interim appointment of the Head of the Romanian Judicial Inspectorate, introduced by an emergency ordinance, in derogation from the normally applicable legal regime, has the effect of reintegrating a posteriori into his duties a person whose term of office has already expired, by means of a procedure other than that laid down by law.
Considering that such a system presents risks as regards the neutrality and independence of judicial bodies, the Advocate General proposes that Union law should be held to preclude such national provisions.
According to Mr Bobek, EU law also precludes the creation of a specific criminal section with exclusive jurisdiction for offences committed by magistrates if, as in the situation in Romania, the creation of such a section is not justified by real and sufficiently important reasons and if it is not accompanied by sufficient guarantees to rule out any risk of political influence on that section.
On the other hand, he is of the opinion that Union law does not preclude national provisions on the liability of the State for miscarriage of justice or the existence of the possibility for the State to subsequently bring an action for recovery by way of civil liability against the judge concerned in the event of bad faith or gross negligence on its part. (Original version in French by Damien Genicot)