The Rule of Law Backsliding: a Romanian Chapter

This blog post has been contributed by Dr Oana Stefan, Module Convenor for EU law.

The European Union is currently experiencing a crisis of the rule of law, which is mainly characterised by a reduction of judicial independence in some Member States and political capture of some supreme courts. We have learnt about the Polish and the Hungarian cases already from the Module Guide, and, of course, the news. A much less known case is the case of Romania.

Romania joined the EU in the second wave of Eastern enlargement alongside Bulgaria in 2007. Unlike with the previous enlargements, for Romania and Bulgaria, a special Cooperation and Verification Mechanism (CVM) was put in place to monitor further after accession issues related to corruption, independence of the judiciary, and (in the case of Bulgaria) organised crime. The CVM was based on a Decision adopted on the basis of the Treaty of Accession, and the procedure used to be as follows: each year Romania was to submit a report to the Commission on the progress towards the benchmarks, while the Commission sent back its comments and conclusions on the report submitted by Romania to the European Parliament and the Council. These comments and conclusions also contained recommendations. As per Article 288 TFEU, however, recommendations are not legally binding – and neither are ‘reports’ such as those issued under the CVM.  

In 2017-2019, several changes in justice legislation were implemented. Among others, some corruption offences were decriminalised, the chief anticorruption prosecutor, Laura Kövesi (now Chief EU Prosecutor) was unlawfully dismissed, and a special section for investigating offences committed by the judiciary was set up, without however offering enough guarantees of independence from the executive.

All these issues have been highlighted by the Commission in its CVM reports, which, even though non-binding, have been very influential. They contributed to an extraordinary mobilisation of society, with mass protests happening from the moment the changes were implemented. They also contributed to a mobilisation of judges, who started sending preliminary references to the Court of Justice of the European Union asking about the compatibility with European Union law of the new justice laws. In essence, all these preliminary references tell the same story we have learnt in our course regarding the ways in which European Union law empowers individuals and judges. Faced with a hostile environment towards judicial independence at home, appeal was made again at the Court of Justice to restore the rule of law. The Court of Justice held that the CVM reports needed indeed to be followed by Romania, and that judicial independence was indeed breached, among others by the creation of the special section to investigate magistrates. This was against various provisions of the Treaty, such as Article 19 (1) TEU (requiring Member States to make sure their courts offer sufficient remedies for effective legal protection) and Article 47 of the Charter of Fundamental Rights (right to a fair hearing).

However, at the national level, the Romanian Constitutional Court disagreed with the Court of Justice of the European Union. What is more, it warned Romanian judges not to give precedence to European Union law in justice-related matters, whilst alluding that so doing might trigger disciplinary proceedings against the judges. In a seminal case (C-430/21 RS), the Court of Justice disagreed with the Romanian Constitutional Court, highlighting that such an approach is against the principle of primacy of European Union law.

Whilst this back-and-forth from Luxembourg to Bucharest is indeed worrying from a rule of law perspective, there might be however hope for improvement in Romania. The CVM procedure was stopped this year, the special section for investigating magistrates was dismantled, and the justice laws were changed. Currently, these new justice laws are assessed internationally to determine whether they comply with the rule of law. Time will tell if the independence of the judiciary in Romania is again on an upward trend, however, this story shows that change can come not only from sanctions and suspension of funding but also from social and judicial mobilisation on the backdrop of well-known EU law mechanisms such as the preliminary ruling procedure and the principle of primacy.