LUXEMBOURG (CN) — Romania’s changes to its judiciary aren’t compatible with EU law, the magistrate for the European Court of Justice held on Wednesday.
A nonbinding recommendation that will be considered by the court as it begins deliberations on six joined cases, two opinions by Advocate General Michal Bobek say some changes were permitted if they had appropriate safeguards, but that the series of Romanian legal reforms largely violated EU law.
“[EU regulations do not] impose a specific model with regard to the organization of the disciplinary systems for members of the judiciary,” Bobek wrote. “However, the requirement of independence means that the rules governing the disciplinary regime for judges ‘must provide the necessary guarantees in order to prevent any risk of that disciplinary regime being used as a system of political control of the content of judicial decisions.’”
Focused on the ex-Communist state’s judiciary system, the Romanian Government adopted a number of emergency ordinances between September 2018 and March 2019. One of the measures involved appointing an interim head of judicial inspection, creating a section within the Public Prosecutor’s Office responsible for the investigation of wrongdoing within the judiciary and changing the liability of judges.
The Luxembourg-based court stepped in to evaluate these regulations for their compatibility with EU law.
Of the government’s decision to appoint an interim head of judicial inspection, Bobek determined that the practical effect of the emergency ordinance “is to ex post facto reinstate into office a person whose mandate has already expired, through a procedure other than the one designed by law and in circumvention of the actors normally involved in that procedure.”
In the same case, he held that the Romanian government cannot establish a special prosecution section to investigate offenses committed by members of the judiciary unless there are “sufficient guarantees to dispel any risk of political influence on its functioning and composition.”
The magistrate also wrote that it is possible for a country to impose civil penalties on judges for gross incompetent but only if “those procedures offer sufficient guarantees to ensure that members of the judiciary are not subjected to direct or indirect pressure liable to affect their decisions.”
When joining the 27-member political and economic union, countries must agree to bring their institutions in line with European Union regulations. The EU created the Mechanism for Cooperation and Verification, a safeguard measure that can be used when countries fail to meet these requirements.
When Romanian and Bulgaria joined in 2006, there was serious concern over corruption in their judiciary system and the EU set a series of benchmarks to improve transparency and efficiency in their judicial process.
The Romanian cases are among an uptick in rule of law questions involving national judiciary systems from Eastern European countries. The court has rejected moves in Hungary to implement age limits and force out female judges as well as blocking a move to force Polish judges into retirement.
The court follows the legal reasoning of its magistrates in about 80% of cases. A final ruling from the court is expected by the end of the year.