The Role of Judicial Associations in Preventing Rule of Law Decay in Romania: Informal Communication and Strategic Use of Preliminary References

Abstract This Article explores the manner in which, faced with the rule of law crisis generated by the 2017–2019 national legislative reforms, the Romanian judicial associations, organized as NGOs, have fulfilled their declared purpose of safeguarding judicial independence. By relying on effective communication tactics—including international networking and lobbying or informal discussions with high-level EU representatives—coupled with a strategic use of preliminary references, they have shed light on some of the most sensitive elements of the Romanian context, garnering both internal and international support in the process. In particular, 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, the Romanian judicial associations have managed to design strategies capable of triggering preliminary rulings on the most heated and politically charged questions concerning the judiciary. This Article seeks to highlight the specific features and informal elements of such strategies.

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." 11gainst 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. 12hile 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. 13In several cases, the preliminary references arose in proceedings initiated at the national level either by magistrates 14 or by associations of judges and prosecutors. 15re-au-spus-nu-politizarii-justitiei-266432; Liliana Nicolae, Protest al Magistraților Față de Modificarea Legilor Justiţiei Şi a Codurilor Penale, EUROPA FM (Dec.18, 2017), https://www.europafm.ro/protest-al-magistratilor-fata-de-modificarea-legilorjustitiei-si-a-codurilor-penale/;Colag foto, PROTESTELE MAGISTRAŢILOR DIN ROMÂNIA-18-21 DECEMBRIE 2017,  FORUMUL JUDECĂTORILOR (Dec.2017), http://www.forumuljudecatorilor.ro/wp-content/uploads/Protestele-magistratilordin-Romania-18-21-decembrie-2017-7.pdf(depicting a photo collage of several protests staged by Romanian magistrates in December 2017).UNIO (Jan.16, 2023), https://officialblogofunio.com/2023/01/16/the-role-of-associations-of-judges-in-defendingthe-rule-of-law-legitimacy-of-unconditional-locus-standi-in-situations-where-they-seek-to-obtain-effective-jurisdictionalprotection-in-areas-regulated/.
14 See e.g., one of the main critics of the Romanian Justice Reform, Prosecutor Bogdan Ciprian Pîrlog.15 Namely, Asociaţia Forumul Judecătorilor din România (the Romanian Judges' Forum Association), and Asociaţia Mişcarea pentru Apărarea Statutului Procurorilor, the Association-Movement for the Defense of the Prosecutors' Status.
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." 16Neither 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, 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. 18tarting 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" 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.'" 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. 21Judges, 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. 22isting judicial associations in Romania function under the legal framework of non-profit associations, in line with the provisions of Government Ordinance no.The information comprised in the national database of associations and foundations-Registrul Național O.N.G. [the National NGO Register] 27 -reveals that in fact there are several other judicial associations currently functioning at the national or local level. 28However, for the purpose of our 21 We use the term "judicial associations" to refer generally to associations of judges, even though some of them may also include prosecutors and other assimilated personnel-magistrates, as the concept is understood in the Romanian legal system.However, for the purposes of this Article and within the INFINITY project conceptual framework, we do not conduct a specific analysis of associations of magistrates that do not include judges-in other words, associations of prosecutors and/or other assimilated magistrates except judges.We note however that some prosecutors' associations, especially Asociaţia Mişcarea pentru Apărarea Statutului Procurorilor (AMASP) and Asociația Inițiativa pentru Justiție (AIJ) have been and continue to be closely involved in the efforts and practices adopted by judicial associations in order to forestall or reverse the rule of law decay and, therefore, many of our references will also include AMASP and AIJ.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. 29hile the strictly formal role of associations in judicial governance or disciplinary procedures is limited, they constitute important fora of internal judicial interaction 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) 31 and their representatives may participate in plenary or section meetings of the SCM, expressing their points of view on matters under debate. 32Judicial associations may also engage in defending judges in the course of disciplinary proceedings and may request the SCM to defend judges' reputations in situations where it is deemed that their independence or impartiality might be threatened. 33ssociations 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 2015-2017 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. 35s 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-forprofit associations, including judicial associations, do not incur a legal obligation to publish Oradea], HOTĂRÂRI CEDO, http://www.hotararicedo.ro/(last visited Aug. 8, 2023); Asociația Judecătorilor Români [Association of Romanian Judges in Cluj-Napoca], HOTĂRÂRI CEDO, http://www.hotararicedo.ro/(last visited Aug. 8, 2023).

29
The statute of the Romanian Judges' Forum Association includes the extensive objective of ensuring societal progress through an independent, impartial and performing justice, through the affirmation and protection of the independence of the judiciary in relation to the other powers in the state, through the initiation, organization, support, coordination and carrying out of projects concerning the improvement, modernization, and reformation of the system of administration of justice.See Statut, FORUMUL JUDECĂTORILOR, http://www.forumuljudecatorilor.ro/index.php/statut(last visited Aug. 8, 2023).The statute of Asociaţia Mişcarea pentru Apărarea Statutului Procurorilor includes very similar wording.See Despre noi, AMASP, https://amasp.ro/despre/(last visited Aug. 8, 2023).

30
According to the ANSWERS TO THE CCJE QUESTIONNAIRE, their members communicate informally through "the council [of the association], through branches, through the president, through dissemination of information, through communication and feed-back, using e-mail groups, WhatsApp groups, through (often) informal discussions, etc." as answered by the AMR; using "online platforms, discussion groups which include members of the associations, by means of informal meetings, conferences, seminars organized by the association, scientific reunions, inside the country and abroad" as answered by the UNJR; through its own internet site where all the association's decisions, publications and debates by members of the association will be posted, including those of the management bodies; the editing and distribution of specialized publications of any type (journals, periodicals, journals in electronic format etc.) related to the association's area of activity as answered by the AFJR See ANSWERS TO THE CCJE QUESTIONNAIRE, supra note 23, at 4. records regarding their members. 36Furthermore, 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. 37In 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 militarystyle 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,38 the members of AFJR justified their 36 The number of members of an association, which cannot be less than three, is mainly relevant from the perspective of the legal entity's internal financial auditing obligations, Government Ordinance No. 26/2000 arts.27, 27 1 (Rom.),but there is no special requirement of public disclosure of the number of members.37 We note, for example, the different stance adopted in respect of some of the more recent amendments to the Justice Laws by AMR, UNJR, and AJADO, as compared to the position expressed by AFJR, AIJ, and AMASP.While all associations were critical of the proposed amendments to the Justice Laws in 2020, the issues highlighted by AMR, UNJR, and AJADO, including the potential interferences in the judiciary by the secret services-as shown in https://www.unjr.ro/2020/10/01/unjramr-ajado-discuta-pe-tema-modificarii-legilor-justitiei-dar-nu-negociaza-interferanta-serviciilor-in-justitie/-andalleged errors in the Cooperation and Verification Mechanism (MCV) reports concerning Romania-as shown in https:// www.unjr.ro/2020/02/17/amr-unjr-ajado-apr-au-solicitat-expertilor-comisiei-europene-refacerea-rapoartelor-mcv-din-cauzaerorilor/-differsignificantly from the aspects criticized by AFJR and AIJ, with the latter stressing the need to closely observe the recommendations in the MCV and Venice Commission reports and to depoliticize the appointment process for highranking prosecutors.See Redacţia RFJ, Asociația Forumul Judecătorilor din România și Asociația Inițiativa pentru Justiție solicită Ministrului Justiției să sesizeze Comisia de la Veneția privind proiectele de modificare a "legilor justiției" Prezentate la 30 Septembrie 2020, FORUMUL JUDECĂTORILOR (Nov.18, 2020), http://www.forumuljudecatorilor.ro/index.php/archives/4260and https://www.juridice.ro/704991/fjr-si-aij-distrugerea-independentei-justitiei-este-accentuata-prin-atitudinea-actiunile-siinactiunile-ministrului-justitiei.html.
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." 39In 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-andits open-access publication, the Judges' Forum Journal, 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. 41Many 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. 42dditionally, 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. 43Furthermore, AFJR's representatives not only NETWORK OF COUNCILS FOR THE JUDICIARY, JUDICIAL ETHICS REPORT 2009-2010 (2010), https://www.encj.eu/images/stories/pdf/ethics/judicialethicsdeontologiefinal.pdf.

43
For several examples of memoranda, calls for action, and position papers issued by AJFR and endorsed by large numbers of magistrates, see The Memorandum of the Romanian Magistrates for the Withdrawal of the Project to Amend the "Justice Laws," JURIDICE, (Oct.30, 2017), https://www.juridice.ro/538255/memoriul-magistratilor-romani-pentru-retragereaproiectului-de-modificare-a-legilor-justitiei.html;Romanian Magistrates' Resolution For The Defence of Rule of Law Bucharest, JUDGES' FORUM (May 25, 2015), http://www.forumuljudecatorilor.ro/index.php/archives/3248;Peste 1000 de 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. 44n 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 associationsespecially 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, 45 or sometimes both English and French, 46 and post them on the AFJR website.In many cases, the translations immediately magistrați solicită suplimentarea ordinii de zi a ședinței plenului Consiliului Superior al Magistraturii din data de 14 iunie 2018 cu cererea de apărare a independenței sistemului judiciar formulată de Asociația Forumul Judecătorilor din România, FORUMUL JUDECĂTORILOR, (June 13, 2018), http://www.forumuljudecatorilor.ro/index.php/archives/3286;Aproximativ 1700 de magistrați susțin, cu titlu individual, solicitarea adresată Ministrului Justiției de a abandona imediat procedura de revocare a Procurorului General al României, FORUMUL JUDECĂTORILOR, (Oct.26, 2018), http://www.forumuljudecatorilor.ro/index.php/archives/3438; Forumul Judecătorilor din România: Comunicat cu privire la Legile de modificare a Legilor Justiţiei.UPDATE 18.10: Lista susținători-591 magistrați, FORUMUL JUDECĂTORILOR, (Oct.14 2018), http://www.forumuljudecatorilor.ro/index.php/archives/3407;Memoriu pentru respectarea statului de drept în România.Mandat de reprezentare, FORUMUL JUDECĂTORILOR, (Apr.8, 2018), http://www.forumuljudecatorilor.ro/index.php/archives/3672.followed the Romanian version of the documents, 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." 48In 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" 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," 50 47 This is seen in the public call of AFJR and AIJ magistrates addressed to the Romanian political leaders-the President, the Prime Minister, and the Minister of Justice-published in both Romanian and English in the Judges' Forum Journal.See, e.g., JUDGE DRAGOS CALIN & JUDGE LUCIA ZAHARIA, APEL PUBLIC AL MAGISTRAÞILOR ROMÂNI (2019), http://www.forumuljudecatorilor.ro/wp-content/uploads/Art-1.pdf.The English translation of the document is clearly intended to reach an international readership.See La data de 11 martie 2018, Forumul Judecătorilor din România a solicitat unor organisme europene consultarea Comisiei de la Veneția asupra unor aspecte vizând modificarea în România a "legilor justiţiei," FORUMUL JUDECĂTORILOR (Mar.30, 2018), http://www.forumuljudecatorilor.ro/index.php/archives/3168(signaling these requests and including links to the texts of the letters).The texts of the letters are almost identical, with the exception of their addressees.See LETTER TO MR. 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. 51A similar letter was sent in 2019 to Mrs. Liliane Maury Pasquier, President of the Parliamentary Assembly of the Council of Europe (PACE). 52All 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 copresident 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." 53Following 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. 54he representatives of the AFJR also met with representatives of GRECO in February 2018 55 and once again with Vice-President Frans Timmermans and other European Commission officials in April 2019. 56On 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." 57 FRANSE TIMMERMANS REQUESTING TO CONSULT THE VENICE COMMISSION, FORUMUL JUDECĂTORILOR (2017), http://www.forumuljudecatorilor.ro/wp-content/uploads/Letter-to-Mr.-Frans-Timmermans-request-to-consult-the-Venice-Commission.pdf;LETTER TO MR.MICHELE NICOLETTI, PRESIDENT OF THE PARLIAMENTARY ASSEMBLY REQUESTING TO CONSULT THE VENICE COMMISSION, FORUMUL JUDECĂTORILOR (2017), http://www.forumuljudecatorilor.ro/wp-content/uploads/Letter-to-Mr.-Michele-Nicoletti-President-of-the-Parliamentary-Assembly-request-to-consult-the-Venice-Commission.pdf;LETTER TO SECRETARY GENERAL THORBJORN JAGLAND REQUESTING TO CONSULT THE VENICE COMMISSION (2017), http://www.forumuljudecatorilor.ro/wp-content/uploads/Letter-to-Secretary-General-Thorbjørn-Jagland-request-to-consult-the-Venice-Commission.pdf;LETTER TO MR.ANDERS SANUELSEN, CHAIR OF THE COMMITTEE OF MINISTERS, REQUESTING TO CONSULT THE VENICE COMMISSION, FORUMUL JUDECĂTORILOR (2017), http://www.forumuljudecatorilor.ro/wp-content/uploads/Letter-to-Mr.-Anders-Samuelsen-Chair-of-the-Committee-of-Ministers-request-to-consult-the-Venice-Commission.pdf.

52
For the text of the letter, see Astăzi, 06.03.2019,Adunarea Parlamentară a Consiliului Europei a decis sesizarea Comisiei de la Veneția cu privire la OUG care modifică legile justiției, FORUMUL JUDECĂTORILOR, (Mar.6, 2019) 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." 58hese 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. 59Having 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. 60The publication of the association, the Judges' Forum Journal, collected the points of view of judges and academics from outside Romania 61 regarding the rule of law developments in respect of judicial independence.

62
In an online statement responding to a press article published on Ziare.com,AFJR highlights its intense activity dedicated to ensuring judicial independence in Romania.The post indicates that AFJR behaved like a whistleblower signaling the authorities' backsliding in respect of the statute of judges, it has issued public statements on all the aspects concerning the violation of the magistrates' independence, it has prepared and sent to all the relevant authorities materials concerning the proposed legislative measures having serious repercussions on the independenceorimmovability ofthe members ofthe judiciary. . .ithas participated intransparently organized meetings with the European Commission, the Venice Commission, GRECO, the Consultative Council of European Judges etc. and, not least, it has taken part in tens of public protests on the steps of the courthouses.
See Drept la replica ziare.com,FORUMUL JUDECĂTORILOR (Feb.18, 2023), http://www.forumuljudecatorilor.ro/index.php/archives/6642.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. 63e 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," 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 63 INTERVIU Judecatorul care a conceput sesizarile la CJUE in cauzele din Romania vizand statul de drept: "Este nevoie de o vointa politica majoritara pentru masuri legislative urgente," ZIARE.COM, (Sept.25, 2020), https://ziare.com/stiri/magistrati/interviu-cu-dragos-calin-judecatorul-care-a-conceput-sesizarile-la-cjue-in-cauzele-din-romania-vizand-statul-dedrept-1633279 (emphasis in the last sentence added).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, 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]. 66Of these, the High Court of Cassation and Justice only referred in cases pertaining to the second wave, 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. 68 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. 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 individuals70 and continued with the three others where the applicants were the magistrates'  The referrals made by the HCCJ were motivated both by the fact that several of its panels were looking at cases involving high-ranking politicians, including the leaders of the parties in the ruling coalition, and because, following the RCC decisions, public officials already sentenced for high corruption offenses were offered the possibility to introduce extraordinary actions to reopen finalized proceedings, risking the criminal investigation being closed due to time prescription.
wave of requests for preliminary rulings. 78Relevantly, 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. 79 As a legitimate response, the cascade of subsequent referrals may be considered the consequence 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. 81Indeed, an overarching theme that runs through all the waves of referrals is the conflict between EU law and constitutional jurisprudence, 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. 83he 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 in situations 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 counterreform 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.8478 See The Good Lobby Profs (@GoodLobbyProfs), TWITTER (Apr.30, 2021, 6:19 AM)  (May 26, 2023), https://eulawlive.com/op-ed-its-all-about-the-romanian-context-the-judgement-in-case-817-21inspectia-judiciara-by-raluca-bercea/.

79
The disciplinary investigation against Judge Stancu was rejected by the Supreme Council of the Magistracy after several postponements only on April 14, 2022, once the legislation dismantling the SIOJ was passed.(Oana Andreea Macovei ed., 2022).
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.

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 Englishlanguage 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." 89As 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 in situations 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" 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.Sorina Doroga and Raluca Bercea

11
Dragoș Călin, The Role of Associations of Judges in Defending the Rule of Law: Legitimacy of Unconditional Locus Standi in Situations Where They Seek to Obtain Effective Jurisdictional Protection in Areas Regulated by European Union Law, OFFICIAL BLOG OF

48
Consultative Council of European Judges, Report on Judicial Independence and Impartiality in the Council of Europe Member States, 20th Sess., Doc.No. 3 (2020), at 34. 49 Consultative Council of European Judges, Opinion of the CCJE Bureau Following a Request by the Romanian Judges Forum Association as Regards the Situation on the Independence of the Judiciary in Romania, 20th Sess., Doc.No. 4 (2019), at 2. 50
64TOMMASO PAVONE, THE GHOSTWRITERS: LAWYERS AND THE POLITICS BEHIND THE JUDICIAL CONSTRUCTION OF EUROPE 16 (2022).

67
Criminal Proceedings Against PM, Joined Cases C-357, C-379, C-547, C-811 & C-840/19.68 While the RCC had already proclaimed the supremacy of the constitution over EU law based on an undefined constitutional identity concept in Decision 104/2018, Decision 685/2018 obliged the High Court of Cassation and Justice to select all five members of a panel judging corruption cases on appeal by the drawing of lots, instead of just four of them, as the practice had been until then; at a later moment, Decision 417/2019 established an obligation upon the High Court of Cassation and Justice to set up specialized panels to adjudicate on first instance corruption offences; similarly, Decision 51/2016, Decision 302/2017, and Decision 26/2019 prohibited the use by prosecutors and judges of evidence found by way of technical surveillance carried out by other specialized bodies of the Romanian Intelligence Service, although authorized by judges.

86European
Commission 2020 Rule of Law Report Country Chapter on the Rule of Law Situation in Romania, at 4, COM (2020) 322 final (Sept.30, 2020). 87
18For the ever-worsening Polish rule of law situation, see Laurent Pech, Patryk Wachowiec, & Dariusz Mazur, Poland's Rule of Law Breakdown: A Five-Year Assessment of EU's (In)Action, 13 HAGUE J. RULE L. 1 (2021).19 See Matteo Bonelli & Monica Claes, Judicial Serendipity: How Portuguese Judges Came to the Rescue of the Polish Judiciary, 14 EUR.CONST.L. REV.622 (2018); see also Thomas von Danwitz, Values and the Rule of Law: Foundations of the European Union-An Inside Perspective from the ECJ, 21 POTCHEFSTROOM ELEC.L. J. 1, 14 (2018).
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, 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); 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); 25 Asociația Forumul Judecătorilor din România [the Romanian Judges' Forum Association] (AFJR); 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).
Law No. 303/2022 on the Status of Judges and Prosecutors, art.206.Similar provisions were included in the previous relevant legislation, repealed on December 16, 2022 by the entry into force of Law No. 303/2022.Law No. 303/2004 on the Status of Judges and Prosecutors had stipulated in Article 11 the possibility of judges and prosecutors becoming members of scientific or academic societies, as well as of any non-profit private legal entities, while Article 76 of the same Act had recognized the freedom of judges and prosecutors to set up or join local, national, or international professional organizations for the purpose of protecting their professional rights and interests, as well as the private entities indicated in Article 11, and to become members of their governing bodies.SeeAsociația Magistraților Europeni pentru Drepturile Omului [Association of European Magistrates for Human Rights in Bucharest], HOTĂRÂRI CEDO, http://www.hotararicedo.ro/(last visited Aug. 8, 2023); Asociația pentru Apărarea Drepturilor și Independenței Judecătorilor [Association for the Protection of the Rights and Independence of Judges in 28 , http://www.forumuljudecatorilor.ro/index.php/archives/3636.Changes Brought to the "Justice Laws" During the 2017-2019 Interval.The Serious Impairment of the Rule of Law Principles.Remedies, in 900 DAYS OF UNINTERRUPTED SIEGE UPON THE ROMANIAN MAGISTRACY 1, 12 (Dragoș Călin ed., 2020).See JOINT STATEMENT OF PRESIDENT JUNCKER AND FIRST VICE-PRESIDENT TIMMERMANS ON THE LATEST DEVELOPMENTS IN ROMANIA, EUROPEAN COMMISSION (Jan.24, 2018), https://ec.europa.eu/commission/presscorner/detail/en/STATEMENT_18_423.la Bruxelles cu oficiali de prim rang ai Comisiei Europene și ai Parlamentului European, FORUMUL JUDECĂTORILOR (Apr.6, 2019), http://www.forumuljudecatorilor.ro/index.php/archives/3669.April 2019-For the First time in History, Judges and Prosecutors from a Member State of the European Union Other Than Belgium Protested in Brussels for the Rule of Law, FORUMUL JUDECĂTORILOR (May 28, 2019), http://www.forumuljudecatorilor.ro/index.php/archives/3735.For a detailed account of the meetings with Commission representatives and CVM experts in Brussels in April 2019, see the interview offered by judge Anca Codreanu, then co-president of AFJR.