A. Introduction: Rule of Law Erosion in Romania
In early 2017, Romania saw its biggest mass protests since the 1989 Revolution,Footnote 1 triggered by the Government’s adoption, via emergency legislation, of several controversial amendments to the Criminal Code and the Criminal Procedure Code.Footnote 2 The following years would bring about numerous changes, in the area of both criminal law and the legislation concerning the organization and functioning of the judiciary—the so-called “Justice Laws”Footnote 3 —many of which were considered to have been aimed at weakening the judiciary, the fight against corruption, as well as having had an overall effect of democratic backsliding and rule of law decay.Footnote 4
Specifically in relation to the judiciary, the amendments had contained inconspicuous but widespread measures undermining judicial independence, including the capture of the highest positions in the judicial system hierarchy, such as the management of judicial inspection bodies; of the newly created Section for Investigating Offences in the Judiciary, or of the Supreme Council of the Magistracy (SCM); silencing of judicial criticism with sanctions on judges and prosecutors for engaging in public debate on legislative reforms; Footnote 5 and overall quick justice reforms, avoiding public debates. Footnote 6 Among those elements, the repeated use of Governmental Emergency Ordinances Footnote 7 without parliamentary debates, ex ante constitutional control, or legislative approval, enhanced the apprehension that the aim was not a solid system of reforms with long-term goals, but a strategy for the extent of changes and the level of political interference to go unnoticed. Footnote 8
The amendments to the Justice Laws put forward between 2017 and 2019 gave rise to waves of public protest, both within civil societyFootnote 9 and among the magistrates working in the judicial system.Footnote 10 Of the many voices heard in the public sphere during that period criticizing the governmental and legislative measures, a particular group of associations of judges and prosecutors crystallized over time and asserted itself as a collective voice of Romanian magistrates “promoting and defending the independence of judges and the rule of law, as well as safeguarding the status of the profession.”Footnote 11
Against this backdrop, over a span of only four years, 2019–2022, various Romanian ordinary courts, including the supreme one, Înalta Curte de Casație și Justiție (“HCCJ”), referred to the CJEU no less than twenty-four requests for preliminary rulings on issues related to the rule of law. Footnote 12 While the total number of requests referred between 2007 and 2022 by all Romanian courts was 293—slightly over eighteen per year, on average—the eleven rule of law referrals submitted in 2019 alone constitute over half of the yearly general average. Additionally, the rule of law referrals between 2019 and 2022 constitute 8.19 percent of all the referrals ever submitted by Romanian courts under Article 267 TFEU from its accession in 2007 until the end of 2022. Footnote 13 In several cases, the preliminary references arose in proceedings initiated at the national level either by magistrates Footnote 14 or by associations of judges and prosecutors. Footnote 15
From the outset, the Romanian rule of law referrals have been characterized as displaying “an exceptionalism that highlights several political premises, a political polarization within the judicial system (a factual situation that goes beyond mere political reasons) and a lot of unclear factual elements. In short, these rule of law referrals carry—one would agree—mixed baggage.” Footnote 16 Neither the Romanian High Court of Cassation and Justice nor the Romanian Constitutional Court (RCC) have been captured in the rule of law crisis. However, by comparison, similar courts or tribunals of Member States facing worse rule of law challenges submitted a smaller or relatively equal number of references to the CJEU. For example, there is only one rule of law reference for a preliminary ruling stemming from Hungary,Footnote 17 while the twenty-four Romanian references made over four years come closer to the total of thirty-five requests received by the CJEU from Polish courts over five years, in the period between 2016 and 2020. Footnote 18
Starting with its judgment in Case C-64/16, Associação Sindical dos Juízes Portugueses, the CJEU took the opportunity to “[stretch] the reach of EU law to an extreme, bringing virtually the entire national judicial organization under its purview”Footnote 19 and prepare the field in order to intervene in the debates concerning various controversial constitutional reforms and the independence of the judiciary in several Member States. The ruling thus “shifted the focus from the economic crisis (or Eurocrisis) to the ‘rule of law crisis.’”Footnote 20
This Article argues that by taking advantage of the CJEU’s increased willingness to engage with questions concerning the rule of law and the organization of the national judicial systems, several Romanian associations of judges and prosecutors managed to design strategies to be employed at every stage of the controversial measures adopted at national level, capable of triggering preliminary rulings on the most heated and politically charged questions concerning the judiciary and the rule of law. By relying on effective communication tactics—including informal discussions with high-level EU representatives—coupled with the strategic use of preliminary references, judicial associations have shed light on some of the most sensitive elements of the Romanian rule of law crisis, garnering both internal and international support in the process. The present Article seeks to highlight the specific features and some informal elements of the abundant judicial dialogue fueled by the Romanian associations of judges and prosecutors as a response to the national rule of law crisis.
Part II describes the general role and functioning of judicial associations in Romania, providing a wider context for understanding the specific approaches of the associations most active in fighting the erosion of judicial independence. Part III illustrates the various strategies employed by these actors, through both formal and informal means, in order to co-opt international support and stimulate the CJEU to weigh in on the controversial measures. Part IV analyzes how the strategies identified in Part III contributed to shaping and instrumentalizing the preliminary references submitted by a section of the Romanian courts during the period of the contested reforms.
B. Judicial Associations in Romania
Under the professional rules applicable to both judges and prosecutors in Romania, a key component of the magistrates’ freedom of association is the right to set up or join existing judicial associations.Footnote 21 Judges, prosecutors, and other assimilated judicial personnel are entitled to:
[C]reate or join local, national or international professional organizations for the purpose of protecting their professional rights and interests, they may become members of scientific or academic societies, as well as of any non-profit private legal persons and are entitled to occupy positions in the governing bodies of the latter.Footnote 22
Existing judicial associations in Romania function under the legal framework of non-profit associations, in line with the provisions of Government Ordinance no. 26/2000 on associations and foundations. According to data collected with respect to Romania by the Consultative Council of European Judges (CCJE) for the preparation of the CCJE Opinion no. 23 of 2020,Footnote 23 as of February 2020 there were six main judicial associations active in Romania: Asociația Magistraților din România [the Association of Magistrates in Romania] (AMR);Footnote 24 Uniunea Națională a Judecătorilor Români [the National Union of Romanian Judges] (UNJR); Asociația Judecătorilor pentru Apărarea Drepturilor Omului [the Association of Judges for the Defense of Human Rights] (AJADO);Footnote 25 Asociația Forumul Judecătorilor din România [the Romanian Judges’ Forum Association] (AFJR);Footnote 26 Asociația Națională a Magistraților Pensionari din România (the National Association of Retired Magistrates in Romania) (ANMPR); and Asociația Themis-Casația [the Association Themis-Casația] of former judges and magistrates at the High Court of Cassation and Justice (ICCJ).
The information comprised in the national database of associations and foundations—Registrul Național O.N.G. [the National NGO Register]Footnote 27 —reveals that in fact there are several other judicial associations currently functioning at the national or local level.Footnote 28 However, for the purpose of our analysis, the most relevant are the ones indicated above and, in particular, the first four—AMR, UNJR, AJADO, and AFJR—representing the interests of judges currently active within the Romanian judiciary. As a general observation, most judicial associations listed in the National NGO Register include among their objectives the protection of the rights and interests of judges or magistrates in general or in relation to other actors, as well as different forms of wording corresponding to the protection of the independence of the judiciary.Footnote 29
While the strictly formal role of associations in judicial governance or disciplinary procedures is limited, they constitute important fora of internal judicial interactionFootnote 30 and are capable of exercising influence in significant areas of the functioning of the judiciary. For instance, judicial associations may endorse the applications of certain judges or prosecutors seeking election as members of the Superior Council of the Magistracy (SCM)Footnote 31 and their representatives may participate in plenary or section meetings of the SCM, expressing their points of view on matters under debate.Footnote 32 Judicial associations may also engage in defending judges in the course of disciplinary proceedings and may request the SCM to defend judges’ reputations insituations where it is deemed that their independence or impartiality might be threatened.Footnote 33
Associations of judges and prosecutors may also interact, to various extents, with Parliament in the lawmaking process or with Government members, especially the Minister of Justice. For instance, both AMR and UNJR indicated that they had been invited to participate in the works of the Parliament concerning the amendments to the Justice Laws during various periods between 2015–2017Footnote 34 and that occasional meetings had taken place with the Minister of Justice, either upon the invitation of the latter or, more frequently, upon the request of the AMR. Both AMR and UNJR were invited to participate in working groups at the Ministry of Justice and to present their views on draft laws, reports, or strategies promoted by the Ministry.Footnote 35
As far as representation is concerned, there is little public information available on the number of judges who are members of a specific judicial association at any given point in time. Not-for-profit associations, including judicial associations, do not incur a legal obligation to publish records regarding their members.Footnote 36 Furthermore, membership figures tend to fluctuate significantly, especially in the context of polarized public debates on the amendments to the Justice Laws and at times diverging public positions adopted by some judicial associations.Footnote 37 In light of these complexities, we focus on identifying strategies capable of setting formal institutions in motion against the backdrop of the rule of law crisis in Romania. Some of the most vocal associations of judges and prosecutors—especially AFJR, AIJ, and AMASP—relied on existing formal institutions—such as preliminary rulings—as well as on specific patterns of communication at the supranational level in order to create an active resistance, both internal and external, to the phenomenon of rule of law backsliding.
C. Strategies in Times of Crisis
In the following subsections we will map out some of the most frequently employed practices of judicial associations and assess their impact on, and interaction with, existing formal institutions in the Romanian context.
I. Internal and External Communication Strategies
Throughout the period between 2017 and 2019, when most of the controversial amendments to the Justice Laws and criminal legislation were implemented, but also in the aftermath of the first rule of law referrals from the Romanian courts, the Romanian Judges’ Forum Association (AFJR) emerged as one of the most vocal judicial associations condemning the changes and drawing attention to their detrimental effects, both visible and potential, within the system. Together with two other prosecutors’ associations, the Association on the Movement for the Defense of Prosecutors’ Status (AMASP) and the Justice Initiative Association (AIJ), the AFJR embarked upon a vigorous campaign to contest these changes and forestall their effects. The use of military-style terminology may appear exaggerated in this description, but on closer inspection the diversity of communication channels and the strategies employed could indeed warrant such a characterization.
From the early days of the amendments to the Justice Laws being announced, AFJR had mobilized considerable efforts to publicly convey its opposition to the proposed changes and to block the advancement of the process. Referencing the 2010 London Declaration on Judicial Ethics adopted by the European Network of Councils for the Judiciary,Footnote 38 the members of AFJR justified their protest and public criticism by stating that “when democracy and fundamental freedoms are endangered, the judge’s duty of restraint becomes subsidiary to their duty of indignation [reference omitted]. Consequently, the judges’ reactions, expressed through their representatives or through the professional associations which they have set up, are legitimate and are to be expected.”Footnote 39 In line with this approach, AFJR and its representatives engaged in a communication campaign on multiple levels, targeting a wide audience, from civil society and members of the general public to decision-makers in the Government, Parliament, and within the national judiciary itself, but also international institutions and other international networks and entities.
On a national level, AFJR relied on its website—http://www.forumuljudecatorilor.ro—and its open-access publication, the Judges’ Forum Journal,Footnote 40 as the main platforms from which to communicate their members’ critical views in respect of the legislative amendments and the evolutions taking place within the Romanian judicial system. Between 2017 and 2019, over 130 articles were posted on AFJR’s website on topics related to the amendments to the Justice Laws, national and international reactions, position papers, memoranda, as well as other materials supporting the magistrates’ condemnation of these developments.Footnote 41 Many of the materials posted on the association’s website were also regularly sent for publication in other fora, such as www.juridice.ro, the most important online platform dedicated to legal practitioners and academics in Romania.Footnote 42
Additionally, in order to demonstrate its representativeness within the Romanian judiciary, AJFR frequently resorted to publishing memoranda, position papers, or calls for action “signed” by lists comprising the full names and affiliations of judges and prosecutors who had endorsed the position expressed in the respective document.Footnote 43 Furthermore, AFJR’s representatives not only took part in press and radio interviews in which they described the activities of the association, but also presented the views of its members on the controversial amendments to various pieces of legislation influencing the justice system.Footnote 44
In resorting to these strategies, the judge and prosecutor members of these associations sought to convey their message of protest not just among other magistrates and legal professionals in the Romanian justice system, but also among members of the general public, by using channels and modes of communication capable of reaching all levels of society.
As far as “external” communication is concerned, the strategy applied by the associations—especially by AFJR—from the early days of the legislative reforms was to translate most of their position papers, calls for action, and open letters into English,Footnote 45 or sometimes both English and French,Footnote 46 and post them on the AFJR website. In many cases, the translations immediately followed the Romanian version of the documents,Footnote 47 thus allowing a wider international audience to follow the key developments in Romania, have a better grasp of the relevant nuances, and receive the information on ongoing events through the lens and interpretation of the AFJR, rather than those of other actors within the system.
This proved to be an effective approach to raise awareness, engage international and European actors—both institutional and otherwise—and galvanize their support. The website of AFJR purported to offer an “unfiltered” view, a firsthand account of the debates taking place internally in Romania, providing direct access to the intricacies of the national developments to the international readership, who would otherwise have had to rely on limited information from the general media. The fact that this was “expert communication” disseminated by members of the judiciary working at the core of the system, who were knowledgeable in the technical aspects of the legislation but also had an insider perspective into the politics surrounding them, rendered such reports even more valuable to international readers, especially to stakeholders such as the EU Commission, GRECO, or the Venice Commission.
II. International Networking and Lobbying
Another effective strategy complementing the associations’ communication with an international readership was to actively engage with counterparts in judicial networks and to directly address several international stakeholders in order to mobilize their support.
For instance, in November 2018 AFJR requested the Consultative Council of European Judges (CCJE) to express its “position on the independence of the judiciary in Romania,” by referring to “a battle going back to 2017 over the preservation of the independence of judges and prosecutors, as well as other issues.”Footnote 48 In response to this request, the CCJE Bureau confirmed that it “agree[d] with the concerns expressed by the Romanian Judges Forum Association as regards the independence of judges in Romania and the adoption of Amendments to the Laws on the Superior Council for Magistracy, on the Statute of Judges and Prosecutors and on Judicial Organization”Footnote 49 and conducted in its turn a legal analysis of some of the amendments to the Justice Laws, with frequent references to the relevant Venice Commission and CVM reports.
Such calls for support addressed to international bodies and representatives of different institutions were a frequently used approach, designed not only to raise awareness, but also to familiarize the international stakeholders with the more technical aspects of the controversial legislative amendments. For instance, the letters submitted by AFJR in March 2018 to several representatives of international bodies—Mr. Frans Timmermans, Vice President of the European Commission, Mr. Michele Nicoletti, President of the Parliamentary Assembly of the Council of Europe, Mr. Thorbjørn Jagland, Secretary General of the Council of Europe, and Mr. Anders Samuelsen, Chair of the Committee of Ministers— urging them “to consult the European Commission for Democracy through Law (the Venice Commission) on certain current issues regarding the amendment in Romania of the ‘laws of justice’ and certain related regulations,”Footnote 50 all included, in addition to the description of the contested legislative changes in Romania, abundant references to ECtHR case law, previous Venice Commission reports in respect of other states, as well as comparative accounts of relevant legislation in other European countries. Significantly, the letters also proposed the wording of the questions that ought to be addressed to the Venice Commission.Footnote 51 A similar letter was sent in 2019 to Mrs. Liliane Maury Pasquier, President of the Parliamentary Assembly of the Council of Europe (PACE).Footnote 52 All these constitute examples of informality, employed with the aim of complementing and strengthening the associations’ formal actions to garner international support.
Other informal elements included, in addition to the letters sent to international bodies, direct meetings between the representatives of AFJR and members of European monitoring institutions, which were often followed by public statements of support from the latter. For instance, the co-president of AFJR, Mr. Dragoș Călin, recalls that on “January 18, 2018, five Romanian judges and prosecutors, representing the Romanian Judges’ Forum Association, took part in a technical debate, in Bruxelles [sic], with European Commission officials, on the evolution of the judicial system in Romania.”Footnote 53 Following the meeting, in a joint statement issued on January 24, 2018, the President of the European Commission, Jean-Claude Juncker, and First Vice-President, Frans Timmermans, expressed their concern regarding the legislative developments in Romania and “calle[d] on the Romanian Parliament to rethink the course of action proposed,” warning “against backtracking” on the progress achieved under the CVM.Footnote 54
The representatives of the AFJR also met with representatives of GRECO in February 2018Footnote 55 and once again with Vice-President Frans Timmermans and other European Commission officials in April 2019.Footnote 56 On the occasion of the last meeting, the participating delegation of Romanian judges and prosecutors also initiated a protest on the steps of the Palace of Justice in Brussels, with the AFJR account of the event indicating that “for the first time in history, magistrates from a member state other than Belgium protested in Brussels for the rule of law.”Footnote 57
In February 2019, in the context of an informal meeting of ministers of justice and internal affairs held in Bucharest, AFJR, AMASP, and AIJ launched a call addressed to the Ministers of Justice of the EU Member States requesting that “they include in the agenda the state of justice independence observance in Romania, in light of the fact the Romanian state representatives ignore the European Commission Reports issued under the Cooperation and Verification Mechanism, the Venice Commission’s opinions and the GRECO Reports.”Footnote 58
These examples display an intensity of informal engagement far beyond what is typically expected of judicial associations, based on a programmatic use of communication, networking and lobbying, in order to enlist the support of European institutional actors. As we will show in the following sections, these strategies proved to be useful “primers” for the next step: co-opting the Court of Justice of the European Union in the Romanian rule of law saga.
III. “Ghostwriting” of Preliminary Questions
An important driving force behind the Romanian rule of law referrals was an individual judge: Dragoș Călin, co-president of AFJR. Footnote 59 Having obtained a doctoral degree in law on the topic of The Dialogue Between Constitutional Courts and the Court of Justice of the European Union, Judge Dragoș Călin was one the first three interns at the ECJ before Romania’s accession, where he translated the historical cases of the Court and made them available for the National Institute of the Magistracy, thus creating a learning basis of European law for young trainees. Later, he became a trainer of the same Institute in the field of European Union law. In an interview in 2021, Judge Călin explained that the activity of the Romanian Judges’ Forum Association, established in 2007, was centered around a group of Romanian magistrates amounting, in some periods, to 3,000 judges and prosecutors. Footnote 60 The publication of the association, the Judges’ Forum Journal, collected the points of view of judges and academics from outside RomaniaFootnote 61 regarding the rule of law developments in respect of judicial independence.
Throughout the period of the most controversial legislative changes in Romania, AFJR and its allied associations of prosecutors became a collective voice of reference, both internally and for international audiences, constantly monitoring and providing real time reactions to the legal and political developments taking place at national level. Thus, AFJR emerged as a self-described “whistleblower”Footnote 62 and a tireless communicator to European institutions. Given the richness of their strategies and the intensity of their activity, designing a series of cases that would allow them to engage the CJEU in a dialogue on the most contentious topics appeared to be the next logical step in these associations’ course of action.
In fact, in a press interview introducing him as “the judge who designed the CJEU referrals in the Romanian rule of law cases,” Judge Dragoș Călin confirmed that the dialogue with the external institutions monitoring the situation in Romania had built up to a point where the preliminary references to the CJEU had become the natural way forward:
We had practically managed to build a concrete structure that would serve to bring a case before the CJEU. Step by step. It was therefore extremely simple to also draft the references to the European Court of Justice. Since I was, practically, together with my colleagues, at the origin of all these efforts and after having been in dialogue, practically daily, with the relevant international entities, I quickly formed in my mind a way to give real effects to all the successive, numerous and extremely well-reasoned recommendations, so that they could have real effects in the absence of the Romanian legislative and governmental will. It takes vision to do something of this sort, including to think of the next steps in detail, to consider the inherent difficulties, including the mental resistance of those around you, not to mention the daily attacks of the so-called jukebox press. . . . .
There were also colleagues who were more skeptical, including some Romanian academics with whom I talked, but the logic I drew from the first relevant CJEU judgment on these topics (Associacao Sindical dos Juizes Portugueses, case C-64/16) emboldened me and I could quickly imagine situations in which the CJEU could develop its own case law, the interpretation of the rule of law requirements, bearing in mind the European Union values and principles enshrined in articles 2 and 19(1) of the Treaty on the European Union (TEU) and article 47 of the Charter of Fundamental Rights. Also, during the same time, I was discussing with my Polish colleagues and we were encouraging each other to follow the same path. Footnote 63
The paragraphs above reveal that while the preliminary questions in the Romanian rule of law cases were indeed formally submitted to the CJEU by the national courts, the litigation design and the drafting of the questions themselves could in fact be attributed to the group of judges and prosecutors active within these associations as “ghostwriters” in the sense used by Tommaso Pavone. Interestingly, however, this is not an instance of lawyers working “to emancipate judges from the institutional constraints obstructing Europeanization and to integrate them within a fledgling transnational network of European courts,”Footnote 64 but of judges and prosecutors acting at the same time from within and from outside of the judicial system in order to grapple with internal threats to the independence of the judiciary.
D. Strategic Use of Preliminary References
The Romanian rule of law referrals are clearly embedded in the formal mechanism of the preliminary ruling set in place by Article 267 TFEU. Yet our claim on this level is that the Romanian situation illustrates an interesting dynamic between elements of formality and informality. As indicated in Part III of the Article, the strategies employed by judicial associations swung between the two ends of the spectrum in order to catalyze the referral of preliminary questions, with the CJEU’s interpretation feeding back into the national legal and political debate, where the loop was subsequently repeated. Specificity and purposiveness are therefore essential to describe the manner in which preliminary references were used.
Within the matrix of the official channel provided by Article 267 TFEU—under which references may be submitted by any court or tribunal—the Romanian rule of law referrals have, recurrently and significantly, activated only parts of the national judicial network, with the exclusion of others, despite their equal justification, competence, and interest in the referred questions. As in the Portuguese Judges case, Footnote 65 most of the Romanian references were driven by “entrepreneurial national magistrates,” seeking empowerment vis-à-vis other courts—the HCC or the RCC—and, in some cases, vis-à-vis other branches of power—the executive and the legislative—in a context of systemically curtailed judicial independence.
Objectively, besides the High Court of Cassation and Justice, the Romanian judicial system includes 177 first instance courts [judecătorii], fifty-one tribunals [tribunale], and sixteen courts of appeal [curți de apel]. Footnote 66 Of these, the High Court of Cassation and Justice only referred in cases pertaining to the second wave, Footnote 67 seeking an interpretation of the principle of the primacy of EU law that would allow it to disapply a number of decisions delivered by the Romanian Constitutional Court between 2016 and 2019. The High Court of Cassation and Justice thus protected its own case law and ultimately its position within the judicial system. Footnote 68
A different lens would apply to the requests submitted by other ordinary courts. Statistics are again relevant on their own: Of the fifty-one Romanian tribunals only three referred questions to the ECJ, and of the sixteen courts of appeal only six did. Moreover, of the three referring tribunals, two are inferior to two of the referring courts of appeal—namely, the Bucharest Tribunal is inferior to the Bucharest Court of Appeal, while the Pitești Tribunal is inferior to the Pitești Court of Appeal. Within this last level of hierarchy, three courts of appeal, closely connected geographically, referred twice—Craiova Court of Appeal—three times—Bucharest Court of Appeal—and five times—Pitești Court of Appeal—respectively. Footnote 69 For sure, the onus of designing the EU law dimension of the case or of the questions referred did not fall—or at least, not exclusively—on the individual litigants. Relevantly, the Pitești Court of Appeal withdrew at a later date the two referrals it had submitted in cases where the applicants in the main proceedings were individuals Footnote 70 and continued with the three others where the applicants were the magistrates’ associations—the Romanian Judges’ Forum Association and the Association on the Movement for the Defence of Prosecutors’ Status. Footnote 71
These referrals may clearly be described as forms of strategic litigation, as already acknowledged in the history of the recent dialogue between the CJEU and national courts. Footnote 72 In the very best sense of the word, a connivance—in other words, a tacit agreement—appears to have been reached by a small number of pro-European national panels of the courts that chose to rely on the privileged link with the CJEU provided by Article 267 TFEU in order to slow the rule of law decay affecting judicial independence. In many cases stemming from Romania and elsewhere, these strategies pushed at the limits of the formal institution.
For instance, in response to the exception of the inadmissibility of a preliminary question raised on account of the lack of the need to refer in the IS case, AG Pikamäe notes in the very first paragraph of his Opinion that the recent rule of law questions brought to the attention of the CJEU by the national courts of several Member States “are appeals for assistance from national judges concerned by or even subject to disciplinary proceedings.”Footnote 73 Although such requests must be answered in compliance with the conventions surrounding the reference for a preliminary ruling, AG Pikamäe confirms that the connecting element, closely associated with the concept of res judicata, has in such cases “a dimension other than [the] strictly legal.” Footnote 74
Besides specificity and purpose, another key element characterizing the Romanian rule of law referrals may be “the interest to refer.” In principle, from the point of view of the ECJ, all references enjoy a presumption of relevance, all the more so when the Member States’ rule of law systems are at stake. However, in order to respond to the national judges’ appeals for assistance indicated above, the ECJ had to expand its jurisdiction in a very bold, systemic interpretation of Article 19(1) TEU. Concerned about such a change, Advocate General Bobek warned of “gates which are too open” in his Opinion on judicial reforms in Romania. Footnote 75 When the individual interests in the main proceedings were overcome by the systemic interest, the authors of the preliminary questions were sure to be supported by the CJEU on account of their previously reiterated and successful interactions. Interest-wise, the whole spectrum has been amply illustrated by the initiatives of the Romanian associations of judges and prosecutors.
For example, similarly to the Miasto Łowicz case, Footnote 76 some of the judges involved in referring to the CJEU or in following its guidance had been subject to disciplinary actions Footnote 77 opened by the Judicial Inspection led by the same Chief Inspector whose mandate was challenged in the first wave of requests for preliminary rulings. Footnote 78 Relevantly, on June 7, 2021, Judge Costin Andrei Stancu from the Pitesti Court of Appeal established, using the criteria provided by the CJEU in the AFJR case, that the Section for Investigating Offences in the Judiciary had operated contrary to the EU rule of law standards in a case concerning three other magistrates. The judge decided that the power of investigation should have been established in favor of the regular bodies of the Public Ministry. Shortly afterwards, the Judicial Inspection began disciplinary investigations against Judge Stancu. Footnote 79
As a legitimate response, the cascade of subsequent referrals may be considered the consequence Footnote 80 of a Constitutional Court constantly reluctant to endorse the CJEU responses in previous rule of law referrals and, most recently, of doubts concerning the effectiveness of legislative reforms amending the previous deficient national rules. Footnote 81 Indeed, an overarching theme that runs through all the waves of referrals is the conflict between EU law and constitutional jurisprudence,Footnote 82 which puts national judges into a dilemma: Choosing between facing disciplinary sanctions for giving effect to EU law over national constitutional jurisprudence or risking engaging the Member State’s liability for non-implementation of EU law while following the constitutional jurisprudence. Footnote 83
The latest reference to the CJEU, the fifth submission by the Pitești Court of Appeal over a period of four years, includes as applicants in the national proceedings the same two active associations, AFJR and AMASP. The reference is explained by Judge Călin Dragoș, the co-president of AFJR, as follows:
[T]he request for a preliminary decision recently submitted by the Pitești Court of Appeal will allow the Court of Justice of the European Union to analyse the creation of a new development, establishing the legitimacy of unconditional locus standi insituations where associations of judges seek to obtain effective jurisdictional protection in areas regulated by European Union law (promoting and defending the independence of judges and the rule of law, as well as safeguarding the status of the profession). Such an intervention would be a salutary one, likely to strengthen or reinforce, in certain EU Members where the counter-reform of the rule of law has gained momentum in the past years, the role that the associations of judges or prosecutors have undertaken at any risk, despite threats, unfair criticism and concerted attacks against their members. Footnote 84
But in fact, in response to other rule of law requests, the CJEU had already expanded the scope of its own jurisdiction to cover the protection of national judicial independence and, in what was considered to be a groundbreaking constitutional moment—the Portuguese Judges case—it required Member States to ensure that national courts comply with the principle of judicial independence regardless of the substance of the matter, or regardless of any material connection between EU and national law in any given proceedings. This was indeed considered one of the most far-reaching judge-led developments in EU law in the recent past. Would the attempt to persuade the Court of Justice to now declare the unconditional locus standi of the associations of judges and prosecutors that the national law refuses to recognize—on account of the principle of procedural autonomy—not constitute a genuine example of mixed judicial informal practice established between national judges and external actors? Undisputedly, while the CJEU is “allowed” to expand its competence even more, the magistrates’ associations use a formal institution to seek empowerment vis-à-vis other power holders at the national level, thus becoming privileged partners of the CJEU itself.
Finally, it is also noteworthy that, while two magistrates’ associations—AFJR and AMASP—have been very active in their dialogue with the CJEU and other European bodies, several other associations of magistrates exist in Romania, and it is common knowledge that they refuse to publicly state the number of their members. This triggers two consequences. On the one hand, it is difficult to assess whether the position expressed by the two associations that fueled the judicial dialogue with the CJEU indeed reflects that of the larger Romanian body of magistrates, or at least of a significant part of it. On the other hand, because the other professional associations neither joined the “activists” before the CJEU, nor generally pursue trade union goals, one can only presume that, at least in part, their main activities consist of legislative lobbying, which inherently leads to assuming political sympathies or, worse, political loyalties, which most probably collided with the aims pursued by AFJR within the reference period. Footnote 85
Besides, the magistrates’ professional animosities have been exposed in public more than once, with the generous help of a part of the national press. Thus, while between 2017 and 2019 the attacks against the judiciary formed part of a larger systemic campaign aimed at the rule of law in its various components—for example, the long-lasting TV show named The Parallel State Footnote 86 —recent press posts denounce the alliance between the CJEU and ordinary courts that attack the Romanian Constitutional Court, Footnote 87 also exploiting the narrative of “cartels” attacking national sovereignty. Footnote 88 As the CJEU did not invite all associations of magistrates in Romania to submit amicus curiae opinions in the rule of law cases, one can only make assumptions on the position of the competing associations in the matter. The practice of referrals, although recurrent among its users, did not contaminate other actors in the judicial system.
E. Conclusion
As indicated in the second part of this Article, the safeguarding of judicial independence and the rule of law frequently appears among the declared purposes of judicial associations in Romania, organized as NGOs, as a general principle guiding their activity. The present Article has sought to explore the manner in which, in the context of the rule of law crisis generated by the 2017–2019 legislative amendments, this objective has taken on a systemic dimension and contributed to shaping the Romanian courts’ dialogue with the CJEU.
Following the pressures experienced at national level by members of the judiciary, individually and collectively, several judicial associations emerged as actors prominently engaged in efforts to mitigate the erosion of judicial independence. These groups placed themselves at the forefront of the internal debates and led an intense informal dialogue with international institutions concerning the rule of law decline in Romania. Using a diverse array of strategies, including direct communication with EU institutions, meetings with high-level representatives, extensive English-language articles and press releases, as well as international networking and lobbying, the judicial associations managed to catalyze Romanian courts into dialogic action with the CJEU. They acted as ghostwriters for the most relevant preliminary questions and used strategic litigation to co-opt the CJEU into the national debates.
This process involved a feedback loop between the judicial associations, national judges, and the CJEU, which in turn contributed to further developments in the CJEU’s own approach to preliminary rulings on questions of EU fundamental values. This line of cases therefore adds a distinct layer of meaning to the traditional thesis of integration through national “judicial empowerment.”Footnote 89 As indicated in the section analyzing the Romanian preliminary references starting with the Portuguese judges cases, a different type of empowerment of national judges may be observed, with the CJEU opening the possibility of judges-as-litigants engaging in dialogue with it on rule of law issues, even when the strictly formal requirements of the preliminary reference procedure have to be bent outside their normal bounds.
In fact, the openness displayed by the Court in the series of references stemming from the Romanian courts has led to calls for the CJEU to take an even bolder step by establishing the unconditional locus standi of the magistrates’ associations insituations where they try to obtain effective jurisdictional protection in areas regulated by European Union law. Should the Court grant this interpretation of EU law, the repetitive referrals fueled so far by individual actors would become the norm. Time will tell whether “the Court’s expansive interpretation, advancing integration through the backdoor” will become once again “a prime target of normative critiques levied against ECJ-led integration through law” Footnote 90 or whether, in a context of increasingly frequent challenges to the rule of law, even in established democracies, this approach will become a useful “toolkit” for European judiciaries under pressure.
Acknowledgements
The authors declare none.
Competing Interests
The authors declare none.
Funding Statement
This Article is the result of research activity financed within the framework of the INFINITY project - Informal Judicial Institutions: Invisible Determinants of Democratic Decay (INFINITY), ERC Horizon 2020, Project Identification 101002660, principal investigator David Kosař.
Open access
