OPINION OF ADVOCATE GENERAL
CAMPOS SÁNCHEZ-BORDONA
delivered on 23 November 2023 (1)
Case C‑634/22
OT,
PG,
CR,
VT,
MD
intervener:
Sofiyska gradska prokuratura
(Request for a preliminary ruling from the Sofiyski gradski sad (Sofia City Court, Bulgaria))
(Reference for a preliminary ruling – Values and objectives of the European Union – Rule of law – Article 19 TEU – Decision 2006/929/EC – Independent and impartial tribunal – Abolition of a specialised criminal court – Abolition linked to alleged insufficient independence)
1. By a law adopted in 2022, (2) the Bulgarian legislature abolished various bodies in the justice system, including the Spetsializiran nakazatelen sad (Specialised Criminal Court, Bulgaria), and specified how the judges who served on that court until the new law came into force were to be reassigned.
2. The ZIDZZSV also established that first-instance criminal proceedings in which a hearing had been held before the Spetsializiran nakazatelen sad (Specialised Criminal Court), as one has in the present case, would fall within the jurisdiction of the Sofiyski gradski sad (Sofia City Court, Bulgaria), (3) although they would continue to be heard by the court formation before which the hearing had been held.
3. The request for a preliminary ruling by the Court of Justice is signed by the members of the formation of the Spetsializiran nakazatelen sad (Specialised Criminal Court) (now the Sofiyski gradski sad (Sofia City Court)), before which a hearing had been held in particular criminal proceedings. That court has expressed uncertainty as to whether the 2022 legislative reform is compatible with EU law in so far as it abolished the Spetsializiran nakazatelen sad (Specialised Criminal Court).
I. Legislative framework
A. European Union law: Decision 2006/929/EC (4)
4. The first paragraph of Article 1 reads:
‘Bulgaria shall, by 31 March of each year, and for the first time by 31 March 2007, report to the [European] Commission on the progress made in addressing each of the benchmarks provided for in the Annex.’
5. The annex lays down the benchmarks to be addressed by Bulgaria. It is required to:
‘1. Adopt constitutional amendments removing any ambiguity regarding the independence and accountability of the judicial system.
2. Ensure a more transparent and efficient judicial process by adopting and implementing a new judicial system act and the new civil procedure code. Report on the impact of these new laws and of the penal and administrative procedure codes, notably on the pre-trial phase.
3. Continue the reform of the judiciary in order to enhance professionalism, accountability and efficiency. Evaluate the impact of this reform and publish the results annually.
4. Conduct and report on professional, non-partisan investigations into allegations of high-level corruption. Report on internal inspections of public institutions and on the publication of assets of high-level officials.
5. Take further measures to prevent and fight corruption, in particular at the borders and within local government.
6. Implement a strategy to fight organised crime, focussing on serious crime, money laundering as well as on the systematic confiscation of assets of criminals. Report on new and ongoing investigations, indictments and convictions in these areas.’
B. National law
1. Zakon za sadebtana vlast (5)
6. Article 194(1) stipulates:
‘… Where courts, public prosecutors’ offices or investigating services are abolished or where the number of posts held at those bodies is reduced, the competent college of the Visshia sadeben savet (Supreme Judicial Council, Bulgaria) shall create the corresponding posts at a different court or authority with the same rank within the judiciary, and if possible within the same judicial district, and shall assign the judges, prosecutors and investigating judges to those bodies with no competitive procedure.’
2. The ZIDZZSV
7. Paragraph 43 of the ZIDZZSV, under the heading ‘Transitional and final provisions’, states:
‘The Spetsializiran nakazatelen sad (Specialised Criminal Court), the Apelativen spetsializiran nakazatelen sad (Specialised Criminal Court of Appeal, Bulgaria), the Spetsializirana prokuratura (Specialised Public Prosecutor’s Office, Bulgaria) and the Apelativna spetsializirana prokuratura (Specialised Appellate Public Prosecutor’s Office, Bulgaria) are abolished with effect from entry into force of this law.’
8. Under Paragraph 44 (transitional provision):
‘(1) The appointments of judges of the Spetsializiran nakazatelen sad (Specialised Criminal Court) … shall be reassigned on the terms and in accordance with the procedure established in Article 194(1) [of the Law on the judiciary].
(2) Within 14 days from promulgation of this law, the persons referred to in subparagraph 1 may make a written submission to the College of Judges of the Supreme Judicial Council indicating that they wish to be reappointed to the judicial post they held before their appointment to the Spetsializiran nakazatelen sad (Specialised Criminal Court) …
(3) Within 30 days from expiry of the period referred to in subparagraph 2, the College of Judges of the Supreme Judicial Council shall adopt a resolution on the creation of judicial posts at the courts, corresponding to the posts abolished at the Spetsializiran nakazatelen sad (Specialised Criminal Court) …, based on the workload of each court. [(6)]
(4) On expiry of the time limit referred to in subparagraph 3, the College of Judges of the Supreme Judicial Council shall reassign judges from the date on which this law comes into force.
(5) The resolutions of the College of Judges of the Supreme Judicial Council referred to in subparagraph 4 shall be immediately enforceable.’
9. Paragraph 49 (transitional provision) states:
‘First instance criminal cases before the Spetsializiran nakazatelen sad (Specialised Criminal Court) in which no preliminary hearing has been held prior to this law coming into force shall be referred to the courts with jurisdiction within seven days from entry into force of this law.’
10. Paragraph 50 (transitional provision) reads:
‘(1) From the entry into force of this law, first-instance criminal proceedings before the Spetsializiran nakazatelen sad (Specialised Criminal Court) in which a preliminary hearing has been held shall fall within the jurisdiction of the Sofiyski gradski sad (Sofia City Court) and shall continue to be heard by the formation before which that hearing was held.
(2) Judges in those formations who have not been reassigned to the Sofiyski gradski sad (Sofia City Court) shall be seconded to participate in the hearing of those cases until the proceedings are completed.
(3) The judges in the formation who have heard first-instance criminal proceedings in which judgment has been delivered shall be seconded to issue the grounds for those judgments, unless they have been reassigned to the Sofiyski gradski sad (Sofia City Court).
…’
11. Paragraph 59(1) (transitional provision) stipulates:
‘The Sofiyski gradski sad (Sofia City Court) shall be the successor of the assets, liabilities, rights and obligations of the Spetsializiran nakazatelen sad (Specialised Criminal Court).’
12. According to Paragraph 67 (transitional provision):
‘This law shall enter into force three months after it is promulgated in the Darzhaven vestnik (State Gazette), with the exception of Paragraphs 1, 2, 5, 6, 18, 28, 32, 34, 44, 45, 57 and 58, which shall come into force on the date of promulgation.’
3. Nakazatelno protsesualen kodeks (7)
13. Article 30(2) stipulates:
‘No judge or jury member may participate in a court formation where that person may, by reason of other circumstances, be perceived to be biased or to have a direct or indirect interest in the outcome of the dispute.’
14. Article 31 states:
‘(1) In the situations under Articles 29 and 30, the judges, jury members and court clerk shall refrain from acting.
(2) The parties may apply for a person to be disqualified until the trial has commenced, unless the grounds for doing so arise or become known subsequently.
(3) Applications for disqualification must state reasons.
(4) The court shall immediately determine whether any abstention or application for disqualification is well founded, deliberating in chambers with the participation of all members of the formation.’
II. The facts, the dispute and the questions referred
15. Criminal proceedings brought in 2018 were heard before the Spetsializiran nakazatelen sad (Specialised Criminal Court) against various individuals accused of participating in a criminal organisation for the purpose of committing crimes of extortion.
16. The trial of the defendants having been opened, 12 public hearings were held and others were suspended for various procedural reasons throughout 2020, 2021 and 2022. (8)
17. At no point in the criminal proceedings did the parties apply to disqualify the formation of the Spetsializiran nakazatelen sad (Specialised Criminal Court) that was hearing the case (that is to say, the Chair of the panel and the jury).
18. While those proceedings were still ongoing, public debate commenced on the draft of the ZIDZZSV, under which the Spetsializiran nakazatelen sad (Specialised Criminal Court) would be abolished.
19. In the course of that debate, a meeting of the Grazhdanski savet kam Visshia sadeben savet (Citizen Council to the Supreme Judicial Council, Bulgaria) was convened on 25 February 2022, in which, among others, the Chair of the referring panel and a lawyer who was representing one of the defendants (acting as a representative of a non-governmental organisation) participated.
20. At those meetings, the lawyer supported dissolution of the Spetsializiran nakazatelen sad (Specialised Criminal Court) and endorsed the explanatory memorandum for the draft law. In addition, the Chair of the panel of the Spetsializiran nakazatelen sad (Specialised Criminal Court) expressed his opposition to the abolition of that court. As he himself stated in the order for reference, he had repeatedly and publicly expressed the view that ‘the abolition of the [Spetsializiran nakazatelen sad (Specialised Criminal Court)], in the manner in which it has been conducted and for the reasons mentioned, is contrary to the principle of the rule of law, undermines the independence of that court and the separation of powers and constitutes a means by which the other two powers exert pressure’. (9)
21. The ZIDZZSV having now been approved, the formation before which a hearing had been held at the Spetsializiran nakazatelen sad (Specialised Criminal Court), which now forms part of the Sofiyski gradski sad (Sofia City Court), has referred the following questions to the Court of Justice:
‘(1) Must Article 2, Article 6(1) and (3) and the second subparagraph of Article 19(1) TEU, in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union [(“the Charter”)], be interpreted as meaning that, where a court has been abolished by the adopted amendment to the [ZZSV] (… with effect from 27 July 2022), but the judges are to continue up to and after that date to deal with those cases before that court in which preliminary hearings have been held, the independence of that court is impaired, given that the abolition of the court is justified on the ground that the constitutional principle of the independence of the judiciary and the protection of the constitutional rights of citizens are thereby safeguarded, and the facts leading to the conclusion that those principles have been infringed are not duly set out?
(2) Must the abovementioned provisions of EU law be interpreted as precluding national provisions such as those of the Law amending and supplementing the [ZZSV] …, which result in the complete abolition of an autonomous judicial body in Bulgaria [(Spetsializiran nakazatelen sad (Specialised Criminal Court))] on the ground referred to above and in the transfer of judges (including the judge of the panel hearing the criminal case at hand) from that court to various other courts, but which require those judges to continue to deal with those cases which are pending before the abolished court and which they have already commenced?
(3) If so, what procedural acts should be undertaken – also in the light of the primacy of EU law – by the members of the national legal service attached to the recently abolished courts in the cases of the abolished court (which, by law, they must complete), having regard also to their obligation to examine closely whether they must recuse themselves from those cases? What consequences would that have for the procedural decisions of the recently abolished court in the cases which must be completed and for the legal acts terminating the proceedings in those cases?’
III. Procedure before the Court
22. The request for a preliminary ruling was received at the Registry of the Court on 10 October 2022.
23. Written observations have been submitted by the Polish Government and the Commission.
24. The Court has not considered it necessary to hold a public hearing.
IV. Analysis
A. Preliminary observations
25. Certain features of these preliminary-ruling proceedings deserve particular mention. First, the reference has been made by a formation that is formally part of the Sofiyski gradski sad (Sofia City Court), which will have to determine a criminal case hitherto dealt with before a different court (the Spetsializiran nakazatelen sad (Specialised Criminal Court)). As explained, since the new law of 26 April 2022 came into force, the Sofiyski gradski sad (Sofia City Court) has replaced the Spetsializiran nakazatelen sad (Specialised Criminal Court). (10) Secondly, the questions for a preliminary ruling were referred by the formation (of the Sofiyski gradski sad (Sofia City Court)) that now has jurisdiction, whose members conducted a hearing when they formed part of the Spetsializiran nakazatelen sad (Specialised Criminal Court). In so far as concerns this particular case, the persons comprising the formation are therefore unchanged. (11) Thirdly, the interpretation sought from the Court bears no relation to the offending acts being adjudicated upon in the criminal proceedings or to the independence or impartiality, as a court formation, of the specific formation called upon to try the defendants. Neither those defendants nor the Bulgarian Public Prosecutor’s Office have appeared in the preliminary-ruling proceedings and, according to the information provided, no one has in actual fact questioned the independence or impartiality of that formation. Fourthly, the reference is instead confined to enquiring whether the abolition of the Spetsializiran nakazatelen sad (Specialised Criminal Court) is compatible with EU law because it impairs the independence of the Spetsializiran nakazatelen sad (Specialised Criminal Court) itself.
26. In reality, the order for reference focuses on criticisms of the reform of the judicial system effected by the Bulgarian legislature in 2022 by means of the ZIDZZSV. It is argued in the order for reference that the reasons put forward to justify abolishing the Spetsializiran nakazatelen sad (Specialised Criminal Court) are not supported by facts that substantiate the need to do so.
27. The first two questions referred enquire directly whether the abolition of the Spetsializiran nakazatelen sad (Specialised Criminal Court) and the subsequent transfer of its members to other courts is compatible with EU law. The third question seeks guidance from the Court on the procedural acts that the judges of the abolished court would have to perform should the first two questions be answered in the affirmative.
28. In those circumstances, it is unsurprising that the Commission and the Polish Government, the only parties that have entered an appearance in the proceedings before the Court, have pleaded that the reference for a preliminary ruling is inadmissible. I shall now address those pleas.
B. Admissibility
1. Pleas of the Polish Government and the Commission (in summary)
29. According to the Polish Government, it is not necessary to answer the questions referred in order to resolve the underlying dispute, which does not involve EU law. There is no connecting factor between that dispute and EU law, with the effect that the Charter does not apply. Moreover, abolition of national courts is a purely domestic matter and falls outside the competence of the European Union.
30. The Commission submits that the referring court is asking merely whether the principle of objective impartiality has been complied with. However, since that court has found no subjective grounds on which it should decline to act and the parties in the main proceedings have not questioned its independence or challenged its impartiality by recusing its members, the doubts it has raised are purely hypothetical. Furthermore, the reasons that led the Bulgarian legislature to adopt the ZIDZZSV concern the need to make structural changes to the specialised criminal courts, of which the referring court (the Sofiyski gradski sad (Sofia City Court)) is not one. The questions referred are therefore irrelevant to resolution of the dispute.
2. Assessment
31. One of the pleas put forward can be dismissed at the outset: that raised by the Polish Government arguing that the Court of Justice, and the European Union in general, have no jurisdiction or competence to rule on the structure of the court systems of the Member States.
32. The Court has on many occasions provided a response to that argument, repeated by the Polish Government in disputes similar in varying degrees to this one. It has emphasised in successive judgments that, although the organisation of justice in the Member States falls within the competence of those Member States, when exercising that competence, they are required to comply with their obligations deriving from EU law. (12) The fact that it requires the Member States to respect those obligations (here, the duty to uphold the independence of the courts), does not mean that the European Union is claiming to exercise that competence itself. (13)
33. It is well known that that case-law is consistent. To cite but one recent judgment of the Court, (14) the Court has stated that while the distribution or reorganisation of court jurisdiction in a Member State comes, in principle, under the freedom of the Member States guaranteed by Article 4(2) TEU, that is so only subject to the condition that such distribution or reorganisation must not undermine the respect for the rule of law set out in Article 2 TEU or infringe the requirements arising from the second subparagraph of Article 19(1) TEU, including those relating to the independence and impartiality of the courts.
34. Of greater substance is the plea of inadmissibility alleging that the main proceedings do not have a sufficient link to the provisions of EU law whose interpretation the referring court is seeking. Those provisions are Article 2 TEU, Article 6(1) and (3) TEU and the second subparagraph of Article 19(1) TEU, read in conjunction with Article 47 of the Charter.
35. However, my view is that, of those provisions, only the second subparagraph of Article 19(1) TEU may be relevant for the purposes of responding to the request for a preliminary ruling, because:
– as the Commission notes, Article 2 TEU can be assumed, indirectly, to apply, since the value of the rule of law affirmed in that article is given concrete expression in Article 19 TEU. (15) It is therefore Article 19 rather than Article 2 which may have a bearing on this case;
– Article 6 TEU and Article 47 of the Charter are prima facie not relevant, since EU law is not being implemented within the meaning of Article 51(1) of the Charter in the criminal case being heard by the referring court. (16)
36. With the discussion thus narrowed down to interpretation of the second subparagraph of Article 19(1) TEU, a case such as that in the main proceedings can be addressed either on a strict interpretation of that provision or by construing it more broadly.
37. The Court took the former approach when, in respect of two references for a preliminary ruling that share certain features with the present case, it found those references to be inadmissible. (17) In the grounds of the finding of inadmissibility at the time, the judgment stated that in order for the protection of judicial independence to be invoked in the context of a request for a preliminary ruling there had to be a connection to EU law. (18)
38. According to that case-law, in summary, the Court may not interpret the second subparagraph of Article 19(1) TEU, to the extent that it enshrines independence as a precondition for ensuring effective legal protection in the fields covered by EU law, in such a way that the mechanism under Article 267 TFEU becomes a form of action for failure to fulfil obligations. (19)
39. Accordingly, where a national court approaches the Court seeking an interpretation of the second subparagraph of Article 19(1) TEU, the order for reference must demonstrate a connection between that article of the TEU and the underlying dispute. Such a connecting factor must exist in order for the second subparagraph of Article 19(1) TEU to apply, with the effect that the situation in the dispute before the national court falls within the scope of application of EU law. (20)
40. Nevertheless, even on that stricter construction, I would recall that a connecting factor may arise, even where substantive provisions of EU law are not being applied to the merits of the dispute before the national court, if that court needs an interpretation of other provisions of EU law which would ‘allow [it] to resolve procedural questions of national law before being able to rule on the substance of the disputes before [it]’. (21)
41. The Court’s case-law has nevertheless evolved appreciably, to the point where requests for a preliminary ruling interpreting the second subparagraph of Article 19(1) TEU have been admitted where no other specific provision of EU law is being applied in the underlying proceedings (the dispute before the referring court) and where, strictly speaking, the legal situation at issue before the national court lacks any factors, be they substantive or procedural, connecting that situation to EU law.
42. That evolution has enabled the Court to respond to requests for a preliminary ruling in which, after invoking the second subparagraph of Article 19(1) TEU, the referring courts departed from the specific disputes on which they had to rule and referred questions concerning general provisions relating to the organisation of their national court systems which they considered injurious to judicial independence. (22)
43. In that strand of case-law the Court has notably admitted requests for a preliminary ruling referred by a Polish court (in the course of various sets of criminal proceedings) seeking interpretation of the second subparagraph of Article 19(1) TEU in relation to the composition of the court that was to sit in those proceedings. (23)
44. I believe it is unnecessary here to broach the sensitive issues raised by that case-law, since a peculiarity of the case at hand means that the reform of the Bulgarian judicial system must meet certain requirements explicitly set out in a decision that forms part of EU law.
45. Indeed, that reform – of which the ZIDZZSV, to which the reference relates, is one part – can and should be assessed in terms of whether it meets the standard of judicial independence referred to in the ‘thresholds’ contained in the annex to Decision 2006/929 establishing a mechanism for cooperation and verification of progress in respect of judicial reform in Bulgaria. (24)
46. By the same token, a Bulgarian court is entitled to seise the Court of Justice of its questions regarding whether national legislation (governing its position within the court structure of that Member State) is compatible with the obligations arising from EU law, including those relating to the independence of the criminal court that is to rule on the underlying dispute.
47. It therefore cannot be said that the request for a preliminary ruling now before the Court is not sufficiently connected to EU law. (25)
48. It should be recalled that it is not for the Court, when responding to a request for a preliminary ruling, to hold directly, itself, that a national provision is incompatible with EU law, but to provide the referring court with such guidance on interpretation as it considers appropriate. (26)
49. The remainder of the pleas of inadmissibility in respect of the reference for a preliminary ruling become untenable when it is noted that they in fact concern the substance of the questions referred. The fact that the members of the referring court did not decline to act in the main proceedings and that the parties in those proceedings did not apply to disqualify them may be decisive in assessing their independence and impartiality in those proceedings, as a matter relevant to examination of the substance of the request for a preliminary ruling. Moreover, analysing the reasons that led the Bulgarian legislature to adopt the reform of the specialised criminal courts, and the effect of the abolition of the Spetsializiran nakazatelen sad (Specialised Criminal Court) on the suitability of its members to continue hearing the criminal proceedings, from the Sofiyski gradski sad (Sofia City Court), are likewise matters for the substantive examination rather than for the admissibility phase of the reference.
50. In short, the reference for a preliminary ruling is, in my view, admissible.
C. First question referred
51. The referring court enquires whether, as a result of the change instituted by the ZIDZZSV by abolishing a particular court (the Spetsializiran nakazatelen sad (Specialised Criminal Court)), ‘the independence of that court is impaired’. In order to resolve its doubts, it has asked the Court to rule on whether that change is compatible with Article 2 TEU, Article 6(1) and (3) TEU and the second subparagraph of Article 19(1) TEU in conjunction with Article 47 of the Charter.
52. As already indicated, of those provisions of the TEU and the Charter, only the second subparagraph of Article 19(1) TEU is relevant in so far as concerns us here, giving rise as it does to the requirement that national courts must be independent.
53. According to the Court’s case-law, that requirement is twofold:
– ‘The first aspect, which is external in nature, requires that the court concerned exercise its functions wholly autonomously, without being subject to any hierarchical constraint or subordinated to any other body and without taking orders or instructions from any source whatsoever, thus being protected against external interventions or pressure liable to impair the independent judgment of its members and to influence their decisions.’ (27)
– ‘The second aspect, which is internal in nature, is linked to impartiality and seeks to ensure that an equal distance is maintained from the parties to the proceedings and their respective interests with regard to the subject matter of those proceedings. That aspect requires objectivity and the absence of any interest in the outcome of the proceedings apart from the strict application of the rule of law’. (28)
54. Neither the referring court (the Sofiyski gradski sad (Sofia City Court)) nor the parties in the criminal proceedings have denied that the Sofiyski gradski sad (Sofia City Court) ‘exercise[s] its functions wholly autonomously, without being subject to any hierarchical constraint or subordinated to any other body and without taking [any] orders or instructions … whatsoever’.
55. Nor has any doubt been cast, in the underlying proceedings, on the subjective impartiality of the persons who now comprise the Sofiyski gradski sad (Sofia City Court) and previously formed part of the Spetsializiran nakazatelen sad (Specialised Criminal Court). The members of the referring court found no grounds on which they should refrain from acting and there is no record that the defendants or the Public Prosecutor’s Office has at any time applied to recuse the judges of the Spetsializiran nakazatelen sad (Specialised Criminal Court) who, following the reform, now perform their duties at the Sofiyski gradski sad (Sofia City Court).
56. It can be inferred from the foregoing that there are no grounds for questioning the independence or impartiality of the members of the referring court.
57. It is nevertheless necessary to consider, independently of the fact that the members of a collegiate court do not (subjectively) perceive their independence to be jeopardised – and indeed have not been recused and have not abstained from acting in particular proceedings – whether the existence of such a risk can be inferred (objectively) from elements of the legislative context in which they are required to rule on cases. (29)
58. It needs to be said on that point, first and foremost, that a reorganisation of the judicial architecture of a Member State may, as a logical corollary, involve the disappearance of existing courts or the reallocation of their jurisdiction, and that such measures do not inherently undermine judicial independence.
59. In the same vein, the principle of the separation of powers (to which the order for reference alludes) does not prevent the legislature, within the bounds of the Constitution, from approving such provisions relating to the court structure as it sees fit at any time. Courts whose existence was once warranted may be abolished subsequently and that abolition, I repeat, does not necessarily imply that judicial independence is undermined. (30)
60. Even at this juncture it can be concluded that the first question referred does not, in fact, relate to the independence of the particular judges (and jury members) called upon to determine the criminal proceedings, nor to the degree of independence enjoyed by the Sofiyski gradski sad (Sofia City Court) as such, but only to any possible adverse impact on ‘the independence of that court [(the Spetsializiran nakazatelen sad (Specialised Criminal Court))]’ (31) resulting from abolition of the Spetsializiran nakazatelen sad (Specialised Criminal Court), in the light of the reasons that led to the legislative reform.
61. In the order for reference, the referring court has set out the reasons that the Bulgarian legislature advanced for abolishing that court, including that relating to the independence of the courts. (32) According to the referring court, those reasons have no merit, since the reform at issue, far from preserving judicial independence, itself undermines that principle. (33)
62. Any analysis of the foregoing assertion must take into account, as a precondition, the nature of the Court’s function in the context of Article 267 TFEU. First, I have already recalled that, in proceedings of this kind, it is not for the Court to hold directly, itself, that a national provision is incompatible with EU law, but to provide the referring court with such guidance on interpretation as it sees fit. Secondly, as a corollary of the foregoing, the Court cannot be asked to rule on the legislative reform at issue as a whole, since its function is confined to providing the referring court with findings on the impact of EU law, in the light of any effects that the reform may have had in practice on the status of the court called upon to dispose of the criminal proceedings.
63. In the light of those propositions, I agree with the Commission that a reorganisation of a judicial system with the aim of better ensuring the independence of the courts cannot attract criticism, and does not necessarily, in itself, involve impairment of the independence of the national courts.
64. Furthermore, it is equally legitimate for the national legislature to choose a criminal justice system in which ordinary courts have jurisdiction to prosecute offences of all kinds as it is to choose a different system in which jurisdiction to rule on specific particularly serious offences lies exclusively with a given specialised court. Both models exist in the various Member States, which are, I repeat, free to adopt either model, and to modify the model selected.
65. The Bulgarian legislature has justified the 2022 reform as embodying its wish to reorganise the national judicial system in order to make its courts more effective (34) and better to ensure their independence. If that is so, it can be found to reflect ‘legitimate grounds, in particular relating to distribution of available resources to ensure the proper administration of justice’. (35)
66. The Commission alludes to precisely those reasons in its report on the rule of law situation in Bulgaria for 2022 (36) and does not call them into question.
67. Admittedly, the referring court refutes, emphatically, that the explanations given for the ZIDZZSV correspond to any facts borne out by reality. Most of the body of the order making the request for a preliminary ruling is devoted to repeating the criticisms that were levelled against the new measures during approval of the draft judicial reform law by a number of judges, including the judge who signed the request for a preliminary ruling.
68. My view is that the Court should not mediate in the controversy on that point that arose during the legislative process. Less still should it copy others in making assumptions about the supposedly true intentions of the legislature as opposed to those described by the legislature in the explanatory memorandum for the law adopted.
69. Suffice it to say, as an overall approach, that whatever arguments may have informed the ZIDZZSV, (37) it cannot be inferred from it that every member of the abolished court lacked independence or impartiality. It would otherwise be impossible to explain why, once the Spetsializiran nakazatelen sad (Specialised Criminal Court) was dissolved, the judges who had performed their duties at that court were reappointed to other courts (38) or, above all, why they were allowed to complete the criminal proceedings that they had been hearing at the Spetsializiran nakazatelen sad (Specialised Criminal Court) itself.
70. If that is true of the independence of the judges who performed their duties at the Spetsializiran nakazatelen sad (Specialised Criminal Court), it is so with all the more reason in so far as concerns the ordinary court that succeeded it (the Sofiyski gradski sad (Sofia City Court)). I would reiterate that nothing in the order for reference gives the slightest indication of any shortcomings as regards the guarantees of the independence and impartiality of the members of that court (the Sofiyski gradski sad (Sofia City Court)).
71. Having regard to the foregoing, I propose that the first question referred should be answered to the effect that the second subparagraph of Article 19(1) TEU does not preclude a reform of the judicial system of a Member State which abolishes a specialised criminal court and transfers its jurisdiction to a different, ordinary, court, and provides at the same time that the criminal cases being dealt with in the abolished court and in which a hearing has been held will continue to be heard by the formation that had jurisdiction until that time.
D. Second question referred
72. In so far as it is not a repetition of the first question, by this question the referring court enquires whether one of the immediate consequences of the Bulgarian judicial reform is compatible with EU law, (39) namely ‘the transfer of judges (including the judge of the panel hearing the criminal case at hand) from that court [(the Spetsializiran nakazatelen sad (Specialised Criminal Court))] to various other courts, but [with a requirement on those judges] to continue to deal with those cases which are pending before the abolished court and which they have already commenced’.
73. As the Court has put it, transfers of judges to a different court without their consent ‘may constitute a way of exercising control over the content of judicial decisions because they are liable not only to affect the scope of the activities allocated to judges and the handling of cases entrusted to them, but also to have significant consequences on the life and career of those persons and, thus, to have effects similar to those of a disciplinary sanction’. (40)
74. The principle of the irremovability of judges is, however, not wholly absolute and ‘there can be … exceptions to that principle [if] they are warranted by legitimate and compelling grounds, subject to the principle of proportionality’. (41)
75. In the present case, it should be emphasised that the transfer to the Sofiyski gradski sad (Sofia City Court) of the members of the formation who had already held a hearing, at the Spetsializiran nakazatelen sad (Specialised Criminal Court), has not in any way affected the specific criminal proceedings that are still ongoing: the cases in which (as here) the members of the Spetsializiran nakazatelen sad (Specialised Criminal Court) had held a hearing continue to be heard by those members at the Sofiyski gradski sad (Sofia City Court) and will fall to be determined by them in that court.
76. The irremovability of judges who are hearing a case therefore appears to have been ensured by the fact that the ZIDZZSV established a form of perpetuatio jurisdictionis (42) for the people who had had jurisdiction to deliver judgment in the criminal proceedings. There was, then, no dismissal of judges such as to prevent them from continuing to hear a criminal case in which they had already acted and had held one or more public hearings.
77. That being so, it is unnecessary to enter into an abstract discussion of whether the transfers, in general, of Bulgarian judges who served at the Spetsializiran nakazatelen sad (Specialised Criminal Court) and now serve at the Sofiyski gradski sad (Sofia City Court) or other courts took place with or without their consent.
78. In any event, the process of reassigning judges to their new posts after the ZIDZZSV came into force appears to be subject to guarantees of objectivity, (43) although the request for a preliminary ruling does not relate specifically to that point. The criteria governing that reassignment are based on the general criteria enshrined in the earlier legislation applicable to the judiciary, (44) which have not aroused any suspicions of arbitrariness. In particular, nothing suggests that the reassignment of the members of the abolished court to courts with the same rank is similar to a disciplinary penalty.
79. Here we have, then, a court formation, initially comprising one court (the Spetsializiran nakazatelen sad (Specialised Criminal Court)), which has come to form part of a different court (the Sofiyski gradski sad (Sofia City Court)), whose independence has not been questioned. That formation, moreover, has taken with it to the second court the proceedings before it in the first, namely the proceedings that have given rise to the request for a preliminary ruling.
80. Against that background, it is once again hard to see any way in which the independence of the referring court has been diminished because the members of the formation were transferred to the Sofiyski gradski sad (Sofia City Court) as a result of the reorganisation of the Bulgarian criminal court system.
E. Third question referred
81. By its third question, the referring court enquires as to the procedural acts that would have to be undertaken by the judges of the abolished court (the Spetsializiran nakazatelen sad (Specialised Criminal Court)) in the cases that they were hearing prior to the abolition, should the reform at issue be found to be incompatible with EU law.
82. Raised thus, that question would not need to be answered if the Court, when ruling on the preceding two questions, finds no grounds in the reference for a preliminary ruling that national legislation such as the ZIDZZSV is incompatible with EU law.
83. In any event, I believe that the third question referred should be dismissed. As I have repeatedly stated, the main proceedings relate to a case which, having commenced in the Spetsializiran nakazatelen sad (Specialised Criminal Court), moved to the Sofiyski gradski sad (Sofia City Court) – the court which has requested a preliminary ruling – and will be determined by the same judges who had held a hearing at the Spetsializiran nakazatelen sad (Specialised Criminal Court) before it was abolished.
84. The judges of the Spetsializiran nakazatelen sad (Specialised Criminal Court) therefore could not undertake any procedural act as judges of the Spetsializiran nakazatelen sad (Specialised Criminal Court). They can only act as judges of the Sofiyski gradski sad (Sofia City Court), with the effect that the third question referred must be understood to relate to the acts to be performed by the Sofiyski gradski sad (Sofia City Court) if the first two questions are answered in the affirmative, which, I submit, they should not.
V. Conclusion
85. In the light of the foregoing considerations, I propose that the following reply should be given to the Sofiyski gradski sad (Sofia City Court, Bulgaria):
The second subparagraph of Article 19(1) TEU
must be interpreted as meaning that it does not preclude a reform of the judicial system of a Member State according to which a specialised criminal court is abolished and its jurisdiction transferred to a different, ordinary, court, and which provides at the same time that the criminal cases being dealt with in the abolished court and in which a hearing has been held will continue to be heard by the formation that had jurisdiction until that time.
Nor does it preclude, in the context of that reform of the judicial system, the reassignment of the judges of the abolished court to other courts with the same rank, on the basis of objective criteria free of any suspicion of arbitrariness.