Joined Cases C‑357/19, C‑379/19, C‑547/19, C‑811/19 and C‑840/19
Criminal proceedings
v
PM and Others
(Requests for a preliminary ruling from the Înalta Curte de Casaţie şi Justiţie, and from the Tribunalul Bihor)
Judgment of the Court (Grand Chamber), 21 December 2021
(Reference for a preliminary ruling – Decision 2006/928/EC – Mechanism for cooperation and verification of progress in Romania to address specific benchmarks in the areas of judicial reform and the fight against corruption – Legal nature and effects – Binding on Romania – Rule of law – Judicial independence – Second subparagraph of Article 19(1) TEU – Article 47 of the Charter of Fundamental Rights of the European Union – Fight against corruption – Protection of the European Union’s financial interests – Article 325(1) TFEU – ‘PFI’ Convention’ – Criminal proceedings – Decisions of the Curtea Constituțională (Constitutional Court, Romania) concerning the legality of the taking of certain evidence and the composition of judicial panels in cases of serious corruption – Duty on national courts to give full effect to the decisions of the Curtea Constituțională (Constitutional Court) – Disciplinary liability of judges in case of non-compliance with such decisions – Power to disapply decisions of the Curtea Constituțională (Constitutional Court) that conflict with EU law – Principle of primacy of EU law)
1. EU law – Values and objectives of the Union – Values – Respect for the rule of law – Scope – Accession to the European Union – Treaty of Accession of Romania to the European Union – Cooperation and verification mechanism – Decision 2006/928 – Binding nature – Scope – Account taken of the reports drawn up by the Commission on the basis of that decision
(Arts 2, 4(3), 19 and 49 TEU; Art. 288, fourth para., TFEU; 2005 Treaty of Accession, Arts 2, 37 and 38 and Annex IX; Commission Decision 2006/928, recitals 2 to 6 and 9 and Arts 1, 2 and 4 and annex)
(see paragraphs 156, 158-165, 167-175, operative part 1)
2. Own resources of the European Union – Protection of the European Union’s financial interests – Fight against fraud and other illegal activities – Obligation of the Member States to establish effective penalties that act as a deterrent – Concepts of fraud and other illegal activities – Corruption – Attempted corruption – Included
(Art. 325(1) TFEU; 2005 Treaty of Accession, Annex IX; Convention on the Protection of the European Communities’ financial interests, Arts 1(1) and 2(1); Commission Decision 2006/928)
(see paragraphs 181-189)
3. Own resources of the European Union – Protection of the European Union’s financial interests – Fight against fraud and other illegal activities – Obligation of the Member States to establish effective penalties that act as a deterrent – Scope – National legislation or practice requiring the review of convictions for fraud and corruption – Systemic risk of impunity – Unlawful
(Art. 325(1) TFEU; 2005 Treaty of Accession, Annex IX; Convention on the Protection of the European Communities’ financial interests, Arts 1(1) and 2; Commission Decision 2006/928)
(see paragraphs 190-194, 197, 200-203, 213, operative part 2)
4. Own resources of the European Union – Protection of the European Union’s financial interests – Fight against fraud and other illegal activities – Obligation of the Member States to establish effective penalties that act as a deterrent – Scope – Obligation of the national court – Compliance with fundamental rights – Right to effective judicial protection – Right to an independent and impartial tribunal, previously established by law – Scope – Judges selected by drawing lots in cases concerning corruption – Judges specialised in cases concerning corruption – Application of a national standard of protection entailing a systemic risk of impunity – Unlawful
(Art. 325(1) TFEU; Charter of Fundamental Rights of the European Union, Arts 47, second para, 51(1) and 53; Convention on the Protection of the European Communities’ financial interests, Arts 1(1) and 2; Commission Decision 2006/928)
(see paragraphs 204-206, 211-213, operative part 2)
5. EU law – Principles – Right to effective judicial protection – Principle of judicial independence – Scope
(Arts 2 and 19(1), second subpara. TEU; Charter of Fundamental Rights of the European Union, Art. 47, second para; Decision 2006/928, recital 3 and annex)
(see paragraphs 217-226)
6. Member States – Obligations – Provision of remedies sufficient to ensure effective legal protection – Observance of the principle of judicial independence – Constitutional case-law binding the ordinary law courts – Whether permissible – Requirements – Observance of the principle of separation of powers – Independence of the constitutional court
(Arts 2 and 19(1), second subpara. TEU; Charter of Fundamental Rights of the European Union, Art. 47; Commission Decision 2006/928, recital 3 and annex)
(see paragraphs 227-230, 232-234, 236, 242, 263, operative part 3)
7. Member States – Obligations – Provision of remedies sufficient to ensure effective judicial protection – Observance of the principle of judicial independence – Disciplinary liability of judges – Scope – National rules providing for such liability to be incurred if constitutional case-law is disapplied – Unlawful
(Arts 2 and 19(1), second subpara. TEU; Charter of Fundamental Rights of the European Union, Art. 47; Decision 2006/928, recital 3 and annex)
(see paragraphs 238-242, 263, operative part 3
8. EU law – Primacy – Scope – Interpretation – Exclusive competence of the EU judicature
(Arts. 4(2) and 19(1) TEU)
(see paragraphs 245-254)
9. Member States – Obligations – Provision of remedies sufficient to ensure effective judicial protection – Observance of the principle of judicial independence – Primacy – Direct effect – Obligations of national courts – National rules prohibiting, subject to a disciplinary penalty, an ordinary court or tribunal from disapplying constitutional case-law contrary to EU law – Unlawful
(Arts 4 and 19(1), second subpara. TEU; Arts 267 and 325(1) TFEU; Commission Decision 2006/928, annex)
(see paragraphs 256-260, 262, 263, operative part 4)
Résumé
EU law precludes the application of case-law of the Constitutional Court in so far as that case-law, in conjunction with the national provisions on limitation, creates a systemic risk of impunity
The primacy of EU law requires that national courts are to have the power to disapply a decision of a constitutional court which is contrary to EU law, in particular without bearing a risk of incurring disciplinary liability
The present cases follow on from the reform of the judicial system with regard to combating corruption in Romania, which has already formed the subject matter of a previous judgment of the Court of Justice. (1) That reform has been monitored at EU level since 2007 under the cooperation and verification mechanism established by Decision 2006/928 (2) on the occasion of Romania’s accession to the European Union (‘the CVM’).
In those cases, the question arises as to whether the application of the case-law arising from various decisions of the Curtea Constituțională a României (Constitutional Court, Romania; ‘the Constitutional Court’) on the rules of criminal procedure applicable to fraud and corruption proceedings is liable to infringe EU law, in particular the provisions of EU law intended to protect the financial interests of the European Union, the guarantee of judicial independence and the value of the rule of law, as well as the principle of the primacy of EU law.
In Cases C‑357/19, C‑547/19, C‑811/19 and C‑840/19, the Înalta Curte de Casaţie şi Justiţie (High Court of Cassation and Justice, Romania; ‘the HCCJ’) had convicted several persons, including former Members of Parliament and Ministers, of offences of VAT fraud, corruption and influence peddling, inter alia in connection with the management of European funds. The Constitutional Court set aside those decisions on the grounds of the unlawful composition of the panel of judges, stating, first, that the cases on which the HCCJ had ruled at first instance should have been heard by a panel specialised in corruption (3) and, second, that, in the cases on which the HCCJ had ruled on appeal, all the judges of the panel of judges should have been selected by drawing lots. (4)
In Case C‑379/19, criminal proceedings were brought before the Tribunalul Bihor (Regional Court, Bihor, Romania) against several persons accused of corruption offences and influence peddling. In the context of a request for the exclusion of evidence, that court is faced with the application of case-law of the Constitutional Court which declared the gathering of evidence in criminal proceedings with the participation of the Romanian intelligence service to be unconstitutional, resulting in the retroactive exclusion of the evidence concerned from the criminal proceedings. (5)
In those contexts, the HCCJ and the Tribunalul Bihor (Regional Court, Bihor) referred questions for a preliminary ruling to the Court concerning the compliance of those decisions of the Constitutional Court with EU law. (6) First of all, the Tribunalul Bihor (Regional Court, Bihor) raises the issue of whether the CVM and the reports prepared by the Commission in accordance with that mechanism (7) are binding. Next, the HCCJ raises the issue of a possible systemic risk of impunity in the field of the fight against fraud and corruption. Lastly, those courts also ask whether the principles of the primacy of EU law and of judicial independence allow them to disapply a decision of the Constitutional Court, whereas under Romanian law the judges’ failure to comply with a decision of the Constitutional Court constitutes a disciplinary offence.
Findings of the Court
The binding nature of the CVM
The Court, sitting as the Grand Chamber, confirmed its case-law following from an earlier judgment, according to which the CVM is, in its entirety, binding on Romania. (8) Thus, the measures adopted, prior to accession, by the EU institutions, are binding on Romania since the date of its accession. That is the case with Decision 2006/928, which is binding in its entirety on Romania as long as it has not been repealed. The benchmarks which seek to ensure compliance with the rule of law are also binding. Romania is thus required to take the appropriate measures to meet those benchmarks, taking due account of the recommendations made in the reports drawn up by the Commission. (9)
The obligation to provide for effective and dissuasive penalties for offences of fraud affecting the financial interests of the European Union or offences of corruption
EU law precludes the application of the case-law of the Constitutional Court leading to the setting aside of judgments delivered by improperly composed panels of judges, in so far as that case-law, in conjunction with the national provisions on limitation periods, creates a systemic risk of impunity in respect of acts constituting serious offences of fraud affecting the financial interests of the European Union or offences of corruption
First of all, even though the rules governing the organisation of the judicial system in the Member States, in particular that relating to the composition of the panels of judges in matters of fraud and corruption, fall, in principle, within the jurisdiction of those States, the Court points out that they are nevertheless required to comply with their obligations under EU law.
Such obligations include the fight against any illegal activities, which include corruption offences, affecting the financial interest of the European Union by means effective measures which act as a deterrent. (10) In respect of Romania, that obligation is supplemented by that Member State’s obligation, stemming from Decision 2006/928, to combat corruption and, in particular, high-level corruption effectively.
The ensuing requirement of effectiveness necessarily extends both to proceedings and penalties for those offences and to the application of the penalties imposed in so far as, unless the penalties for fraud offences affecting those interests and for corruption offences in general are enforced effectively, those penalties cannot be effective and act as a deterrent. Next, the Court notes that it is primarily for the national legislature to take the measures necessary to ensure that the procedural rules applicable to those offences do not present a systemic risk of impunity. National courts, for their part, must disapply domestic provisions which prevent the application of effective penalties that act as a deterrent.
In the present case, the application of the case-law of the Constitutional Court in question has the consequence that the cases of fraud and corruption concerned must be re-examined, if necessary on several occasions, at first instance and/or on appeal. In view of its complexity and duration, such a re-examination necessarily has the effect of extending the duration of the corresponding criminal proceedings. Besides the fact that Romania has undertaken to reduce the duration of proceedings in corruption cases, the Court recalls that, in the light of the specific obligations on Romania under Decision 2006/928, the national rules and the national practice in this field cannot result in the duration of investigations into corruption offences being extended or the fight against corruption being in any way weakened. (11) Moreover, given the national rules on limitation, the re-examination of the cases at issue might lead to prosecution of the offences being time-barred and to the prevention of persons occupying the highest positions in the Romanian State, who have been convicted for committing, in the exercise of their duties, serious acts of fraud and/or corruption, from being penalised in a manner which is effective and acts as a deterrent. Therefore, the risk of impunity would become systemic for that category of persons and would call into question the objective of combating high-level corruption.
Lastly, the Court recalls that the obligation to ensure that such offences are subject to penalties which are effective and act as a deterrent does not exempt the referring court from verifying the necessary observance of the fundamental rights guaranteed in Article 47 of the Charter of Fundamental Rights of the European Union, but does not allow that court to apply a national standard of protection of fundamental rights entailing such a systemic risk of impunity. The requirements arising from that article do not preclude the possible disapplication of the case-law of the Constitutional Court on specialisation and composition of panels of judges in corruption cases.
The guarantee of judicial independence
EU law does not preclude decisions of the Constitutional Court from binding the ordinary courts, provided that the independence of the Constitutional Court in relation, in particular, to the legislative and executive is guaranteed. However, that law precludes national judges from incurring disciplinary liability due to any disapplication of such decisions
First, since the existence of effective judicial review designed to ensure compliance with EU law is of the essence of the rule of law, any court called upon to apply or interpret EU law must satisfy the requirements of effective judicial protection. For this to be the case, maintaining the independence of the courts is essential. In that regard, it is necessary that judges are protected against external intervention or pressure liable to impair their independence. In addition, in accordance with the principle of the separation of powers which characterises the operation of the rule of law, the independence of the judiciary must in particular be ensured in relation to the legislature and the executive.
Second, even though EU law does not require the Member States to adopt a particular constitutional model governing the relationship between the various branches of the State, the Court notes that the Member States must nevertheless comply, inter alia, with the requirements of judicial independence stemming from EU law. In those circumstances, decisions of the Constitutional Court may bind the ordinary courts provided that national law guarantees the independence of the Constitutional Court in relation, in particular, to the legislative and executive. On the other hand, if national law does not guarantee that independence, EU law precludes such national rules or national practice, since such a constitutional court is not in a position to ensure the effective judicial protection required by EU law.
Third, for the purposes of safeguarding judicial independence, the disciplinary regime must provide the necessary guarantees in order to prevent any risk of that regime being used as a system of political control of the content of judicial decisions. In that regard, the fact that a judicial decision contains a possible error in the interpretation and application of the rules of national and EU law, or in the assessment of facts and the appraisal of the evidence, cannot, in itself, trigger the disciplinary liability of the judge concerned. The triggering of the disciplinary liability of a judge as a result of a judicial decision should be limited to entirely exceptional cases and governed by guarantees designed to avoid any risk of external pressure on the content of judicial decisions. National legislation under which any failure to apply the decisions of the Constitutional Court by national judges of the ordinary courts is such as to give rise to their disciplinary liability does not comply with those conditions.
The primacy of EU law
The principle of the primacy of EU law precludes national courts from being prohibited, subject to disciplinary penalties, from disapplying decisions of the Constitutional Court that are contrary to EU law
The Court points out that, in its case-law on the EEC Treaty, it laid down the principle of the primacy of Community law, understood to enshrine the precedence of Community law over the law of the Member States. In that regard, the Court has held that the establishment by the EEC Treaty of the Community’s own legal system, accepted by the Member States on a basis of reciprocity, means, as a corollary that they cannot accord precedence to a unilateral and subsequent measure over that legal system or rely on rules of national law of any kind against the law stemming from the EEC Treaty, without depriving the latter law of its character as Community law and without the legal basis of the Community itself being called into question. In addition, the executive force of Community law cannot vary from one Member State to another in deference to subsequent domestic laws without jeopardising the attainment of the objectives of the EEC Treaty or giving rise to discrimination on grounds of nationality prohibited by that treaty. The Court has thus held that the EEC Treaty, albeit concluded in the form of an international agreement, constitutes the constitutional charter of a Community based on the rule of law and that the essential characteristics of the Community legal order thus established are in particular its primacy over the law of the Member States and the direct effect of a whole series of provisions which are applicable to their nationals and to the Member States themselves.
The Court notes that those essential characteristics of the legal order of the European Union and the importance of compliance with that legal order have been confirmed by the ratification, without reservation, of the Treaties amending the EEC Treaty and, in particular, the Treaty of Lisbon. When that treaty was adopted, the conference of representatives of the governments of the Member States was keen to state expressly, in its Declaration No 17 concerning primacy, annexed to the Final Act of the Intergovernmental Conference which adopted the Treaty of Lisbon, that, in accordance with the settled case-law of the Court, the Treaties and the law adopted by the European Union on the basis of the Treaties have primacy over the law of Member States, under the conditions laid down by that case-law.
The Court adds that, since Article 4(2) TEU provides that the Union is to respect the equality of Member States before the Treaties, the European Union can respect such equality only if the Member States are unable, under the principle of the primacy of EU law, to rely on, as against the EU legal order, a unilateral measure, whatever its nature. In that context, the Court also notes that, in the exercise of its exclusive jurisdiction to give a definitive interpretation of EU law, it is for it to clarify the scope of the principle of the primacy of EU law in the light of the relevant provisions of EU law, since that scope cannot turn on the interpretation of provisions of national law or on the interpretation of provisions of EU law by a national court which is at odds with the interpretation given by the Court.
The Court recalls that the effects of the principle of the primacy of EU law are binding on all the bodies of a Member State, without provisions of domestic law, including constitutional provisions, being able to prevent that. National courts are required to disapply, on their own authority, any national rule or practice contrary to a provision of EU law which has direct effect, without having to request or await the prior setting aside of that national rule or practice by legislative or other constitutional means.
Moreover, for national judges, not being exposed to disciplinary proceedings or penalties for having exercised the discretion to make a reference for a preliminary ruling under Article 267 TFEU, which is exclusively within their jurisdiction, constitutes a guarantee that is essential to their independence. Thus, if a national judge of an ordinary court were to find, in the light of a judgment of the Court, that the case-law of the national constitutional court is contrary to EU law, that national judge’s disapplication of that constitutional case-law cannot trigger his or her disciplinary liability.