Judgment of the Court (Grand Chamber) of 21 December 2021

The PFI Convention

3 Article 1(1) of the PFI Convention reads as follows:

‘For the purposes of this Convention, fraud affecting the European Communities’ financial interests shall consist of:

1. in respect of expenditure, any intentional act or omission relating to:

   • the use or presentation of false, incorrect or incomplete statements or documents, which has as its effect the misappropriation or wrongful retention of funds from the general budget of the European Communities or budgets managed by, or on behalf of, the European Communities,

   • non-disclosure of information in violation of a specific obligation, with the same effect,

   • the misapplication of such funds for purposes other than those for which they were originally granted;

2. in respect of revenue, any intentional act or omission relating to:

   • the use or presentation of false, incorrect or incomplete statements or documents, which has as its effect the illegal diminution of the resources of the general budget of the European Communities or budgets managed by, or on behalf of, the European Communities,

…’

4 Article 2(1) of that convention provides:

‘Each Member State shall take the necessary measures to ensure that the conduct referred to in Article 1, and participating in, instigating, or attempting the conduct referred to in Article 1(1), are punishable by effective, proportionate and dissuasive criminal penalties, including, at least in case of serious fraud, penalties involving deprivation of liberty which can give rise to extradition, it being understood that serious fraud shall be considered to be fraud involving a minimum amount to be set in each Member State. This minimum amount may not be set at a sum exceeding [EUR] 50 000.’

5 By act of 27 September 1996, the Council drew up the Protocol to the Convention on the protection of the European Communities’ financial interests (OJ 1996 C 313, p. 1). Pursuant to Articles 2 and 3 thereof, that protocol covers acts of passive and active corruption.

The Treaty of Accession

6 Article 2 of the Treaty between the Member States of the European Union and the Republic of Bulgaria and Romania, concerning the accession of the Republic of Bulgaria and Romania to the European Union (OJ 2005 L 157, p. 11; ‘the Treaty of Accession’), which entered into force on 1 January 2007, provides, in paragraphs 2 and 3 thereof:

‘2.

The conditions of admission and the adjustments to the Treaties on which the Union is founded, entailed by such admission, which will apply from the date of accession until the date of entry into force of the Treaty establishing a Constitution for Europe, are set out in the Act annexed to this Treaty. The provisions of that Act shall form an integral part of this Treaty.

3.

…

Acts adopted prior to the entry into force of the Protocol referred to in Article 1(3) on the basis of this Treaty or the Act referred to in paragraph 2 shall remain in force and their legal effects shall be preserved until those acts are amended or repealed.’

The Act of Accession

7 Article 2 of the Act concerning the conditions of accession of the Republic of Bulgaria and Romania and the adjustments to the Treaties on which the European Union is founded (OJ 2005 L 157, p. 203; ‘the Act of Accession’), which entered into force on 1 January 2007, provides:

‘From the date of accession, the provisions of the original Treaties and the acts adopted by the institutions and the European Central Bank before accession shall be binding on Bulgaria and Romania and shall apply in those States under the conditions laid down in those Treaties and in this Act.’

8 Article 37 of that act reads as follows:

‘If Bulgaria or Romania has failed to implement commitments undertaken in the context of the accession negotiations, causing a serious breach of the functioning of the internal market, including any commitments in all sectoral policies which concern economic activities with cross-border effect, or an imminent risk of such breach the Commission may, until the end of a period of up to three years after accession, upon motivated request of a Member State or on its own initiative, take appropriate measures.

Measures shall be proportional and priority shall be given to measures which least disturb the functioning of the internal market and, where appropriate, to the application of the existing sectoral safeguard mechanisms. Such safeguard measures shall not be invoked as a means of arbitrary discrimination or a disguised restriction on trade between Member States. The safeguard clause may be invoked even before accession on the basis of the monitoring findings and the measures adopted shall enter into force as of the first day of accession unless they provide for a later date. The measures shall be maintained no longer than strictly necessary and, in any case, shall be lifted when the relevant commitment is implemented. They may however be applied beyond the period specified in the first paragraph as long as the relevant commitments have not been fulfilled. In response to progress made by the new Member State concerned in fulfilling its commitments, the Commission may adapt the measures as appropriate. The Commission shall inform the Council in good time before revoking the safeguard measures, and it shall take duly into account any observations of the Council in this respect.’

9 Article 38 of the Act of Accession provides:

‘If there are serious shortcomings or any imminent risks of such shortcomings in Bulgaria or Romania in the transposition, state of implementation, or the application of the framework decisions or any other relevant commitments, instruments of cooperation and decisions relating to mutual recognition in the area of criminal law under Title VI of the EU Treaty and Directives and Regulations relating to mutual recognition in civil matters under Title IV of the EC Treaty, the Commission may, until the end of a period of up to three years after accession, upon the motivated request of a Member State or on its own initiative and after consulting the Member States, take appropriate measures and specify the conditions and modalities under which these measures are put into effect.

These measures may take the form of temporary suspension of the application of relevant provisions and decisions in the relations between Bulgaria or Romania and any other Member State or Member States, without prejudice to the continuation of close judicial cooperation. The safeguard clause may be invoked even before accession on the basis of the monitoring findings and the measures adopted shall enter into force as of the first day of accession unless they provide for a later date. The measures shall be maintained no longer than strictly necessary and, in any case, shall be lifted when the shortcomings are remedied. They may however be applied beyond the period specified in the first paragraph as long as these shortcomings persist. In response to progress made by the new Member State concerned in rectifying the identified shortcomings, the Commission may adapt the measures as appropriate after consulting the Member States. The Commission shall inform the Council in good time before revoking the safeguard measures, and it shall take duly into account any observations of the Council in this respect.’

10 Article 39(1) to (3) of the Act of Accession provides:

‘1.

If, on the basis of the Commission’s continuous monitoring of commitments undertaken by Bulgaria and Romania in the context of the accession negotiations and in particular the Commission’s monitoring reports, there is clear evidence that the state of preparations for adoption and implementation of the acquis in Bulgaria or Romania is such that there is a serious risk of either of those States being manifestly unprepared to meet the requirements of membership by the date of accession of 1 January 2007 in a number of important areas, the Council may, acting unanimously on the basis of a Commission recommendation, decide that the date of accession of that State is postponed by one year to 1 January 2008.

2.

Notwithstanding paragraph 1, the Council may, acting by qualified majority on the basis of a Commission recommendation, take the decision mentioned in paragraph 1 with respect to Romania if serious shortcomings have been observed in the fulfilment by Romania of one or more of the commitments and requirements listed in Annex IX, point I.

3.

Notwithstanding paragraph 1, and without prejudice to Article 37, the Council may, acting by qualified majority on the basis of a Commission recommendation and after a detailed assessment to be made in the autumn of 2005 of the progress made by Romania in the area of competition policy, take the decision mentioned in paragraph 1 with respect to Romania if serious shortcomings have been observed in the fulfilment by Romania of the obligations undertaken under the Europe Agreement or of one or more of the commitments and requirements listed in Annex IX, point II.’

11 Annex IX to the Act of Accession, entitled ‘Specific commitments undertaken, and requirements accepted, by Romania at the conclusion of the accession negotiations on 14 December 2004 (referred to in Article 39 of the Act of Accession)’, contains, in point I thereof, the following passage:

‘In relation to Article 39(2)

…

1. To considerably step up the fight against corruption and in particular against high-level corruption by ensuring a rigorous enforcement of the anti-corruption legislation and the effective independence of the National Anti-Corruption Prosecutors’ Office (NAPO) and by submitting on a yearly basis as of November 2005 a convincing track-record of the activities of NAPO in the fight against high-level corruption. NAPO must be given the staff, financial and training resources, as well as equipment necessary for it to fulfil its vital function.

2. … [The National Anti-Corruption Strategy] must include the commitment to revise the protracted criminal procedure by the end of 2005 to ensure that corruption cases are dealt with in a swift and transparent manner, in order to guarantee adequate sanctions that have a deterrent effect; …

…’

Decision 2006/928

12 Decision 2006/928 was adopted, in the context of the planned accession of Romania to the European Union on 1 January 2007, on the basis, in particular, of Articles 37 and 38 of the Act of Accession. Recitals 1 to 6 and 9 of that decision read as follows:

‘(1) The European Union is founded on the rule of law, a principle common to all Member States.

(2) The area of freedom, security and justice and the internal market, created by the Treaty on European Union and the Treaty establishing the European Community, are based on the mutual confidence that the administrative and judicial decisions and practices of all Member States fully respect the rule of law.

(3) This implies for all Member States the existence of an impartial, independent and effective judicial and administrative system properly equipped, inter alia, to fight corruption.

(4) On 1 January 2007, Romania will become a Member of the European Union. The Commission, whilst noting the considerable efforts to complete Romania’s preparations for membership, has identified remaining issues in its Report of 26 September 2006, in particular in the accountability and efficiency of the judicial system and law enforcement bodies, where further progress is still necessary to ensure their capacity to implement and apply the measures adopted to establish the internal market and the area of freedom, security and justice.

(5) Article 37 of the Act of Accession empowers the Commission to take appropriate measures in case of imminent risk that Romania would cause a breach in the functioning of the internal market by a failure to implement the commitments it has undertaken. Article 38 of the Act of Accession empowers the Commission to take appropriate measures in case of imminent risk of serious shortcomings in Romania in the transposition, state of implementation, or application of acts adopted under Title VI of the EU Treaty and of acts adopted under Title IV of the EC Treaty.

(6) The remaining issues in the accountability and efficiency of the judicial system and law enforcement bodies warrant the establishment of a mechanism for cooperation and verification of the progress of Romania to address specific benchmarks in the areas of judicial reform and the fight against corruption.

…

(9) The present Decision should be amended if the Commission’s assessment points at a need to adjust the benchmarks. The present Decision should be repealed when all the benchmarks have been satisfactorily fulfilled.’

13 Article 1 of Decision 2006/928 provides:

‘Romania shall, by 31 March of each year, and for the first time by 31 March 2007, report to the Commission on the progress made in addressing each of the benchmarks provided for in the Annex.

The Commission may, at any time, provide technical assistance through different activities or gather and exchange information on the benchmarks. In addition, the Commission may, at any time, organise expert missions to Romania for this purpose. The Romanian authorities shall give the necessary support in this context.’

14 Article 2 of that decision provides:

‘The Commission will communicate to the European Parliament and the Council its own comments and findings on Romania’s report for the first time in June 2007.

The Commission will report again thereafter as and when required and at least every six months.’

15 Article 4 of the decision states:

‘This Decision is addressed to all Member States.’

16 The annex to the same decision is worded as follows:

‘Benchmarks to be addressed by Romania, referred to in Article 1:

1. Ensure a more transparent, and efficient judicial process notably by enhancing the capacity and accountability of the Superior Council of Magistracy. Report and monitor the impact of the new civil and penal procedures codes.

2. Establish, as foreseen, an integrity agency with responsibilities for verifying assets, incompatibilities and potential conflicts of interest, and for issuing mandatory decisions on the basis of which dissuasive sanctions can be taken.

3. Building on progress already made, continue to conduct professional, non-partisan investigations into allegations of high-level corruption.

4. Take further measures to prevent and fight against corruption, in particular within the local government.’

The Romanian Constitution

17 Title III of the Constituția României (Romanian Constitution), entitled ‘Public authorities’, includes, inter alia, a Chapter VI on the ‘judiciary’, which includes Article 126 of that constitution. That article provides:

‘(1)

Justice shall be administered by the Înalta Curte de Casaţie şi Justiţie [(High Court of Cassation and Justice)] and by the other judicial bodies established by law.

…

(3)

The Înalta Curte de Casaţie şi Justiţie [(High Court of Cassation and Justice)] shall guarantee the uniform interpretation and application of the law by the other courts, in accordance with its jurisdiction.

(4)

The composition of the Înalta Curte de Casaţie şi Justiţie [(High Court of Cassation and Justice)] and its rules of procedure shall be established by an organic law.

…

(6)

Judicial review of the administrative acts of the public authorities by means of administrative proceedings shall be guaranteed, with the exception of acts concerning relations with the Parliament and military command acts. The administrative courts shall have jurisdiction to hear and determine actions brought by persons injured, as the case may be, by ordinances or provisions of ordinances declared unconstitutional.’

18 Title V of the Romanian Constitution, which concerns the Curtea Constituțională (Constitutional Court, Romania), contains Articles 142 to 147 of the Constitution. Article 142, which is entitled ‘Structure’, provides, in paragraphs 1 to 3 thereof:

‘(1)

The Curtea Constituțională [(Constitutional Court)] is the guarantor of the primacy of the Constitution.

(2)

The Curtea Constituțională [(Constitutional Court)] shall consist of nine judges, appointed for a term of office of nine years, which may not be extended or renewed.

(3)

Three judges shall be appointed by the Camera Deputaţilor [(Chamber of Deputies)], three by the Senat [(Senate)] and three by the Preşedintele României [(President of Romania)].’

19 Article 143 of the Romanian Constitution reads as follows:

‘The judges of the Curtea Constituțională [(Constitutional Court)] must have excellent legal qualifications, a high level of professional competence and at least 18 years’ experience of legal work or in higher legal education.’

20 Article 144 of the Romanian Constitution provides:

‘The office of judge of the Curtea Constituțională [(Constitutional Court)] shall be incompatible with any other public or private office, with the exception of teaching duties in higher legal education.’

21 Under Article 145 of the Romanian Constitution:

‘The judges of the Curtea Constituțională [(Constitutional Court)] shall be independent in the exercise of their office and shall be irremovable throughout that term of office.’

22 Article 146 of the Romanian Constitution provides:

‘The Curtea Constituțională [(Constitutional Court)] shall have the following duties:

…

(d) ruling on pleas of the unconstitutionality of laws and ordinances raised before judicial or commercial arbitration bodies; a plea of unconstitutionality may be raised directly by the People’s Advocate;

(e) resolving legal conflicts of a constitutional nature between public authorities, at the request of the President of Romania, one of the presidents of the two houses of the Parliament of Romania, the primului-ministru [(Prime Minister)] or the President of the [Superior Council of Magistracy];

…’

23 Article 147 of the Romanian Constitution states, in paragraph 4 thereof:

‘The decisions of the Curtea Constituțională [(Constitutional Court)] shall be published in the Monitorul Oficial al României [(Official Gazette of Romania)]. As from the date of publication, those decisions shall be generally binding and have legal effect only for the future.’

24 Article 148(2) to (4) of the Romanian Constitution provides:

‘(2)

Following accession, the provisions of the Treaties establishing the European Union, and other binding Community rules, shall prevail over conflicting provisions of national legislation, in accordance with the provisions of the Act of Accession.

(3)

Paragraphs 1 and 2 shall apply by analogy to the accession to the acts revising the Treaties establishing the European Union.

(4)

The Parliament, the President of Romania, the Government and the judiciary shall ensure that the obligations under the Act of Accession and the provisions of paragraph 2 of the present article are fulfilled.’

Criminal Code

25 Article 154(1) of the Codul penal (Criminal Code) provides:

‘The limitation periods for criminal liability are as follows:

1. 15 years, where the offence committed is punishable by law by life imprisonment or by a term of imprisonment of more than 20 years;

2. 10 years, where the offence committed is punishable by law by a term of imprisonment of not less than 10 years and not more than 20 years;

3. 8 years, where the offence committed is punishable by law by a term of imprisonment of not less than 5 years and not more than 10 years;

4. 5 years, where the offence committed is punishable by law by a term of imprisonment of not less than 1 year and not more than 5 years;

5. 3 years, where the offence committed is punishable by law by a term of imprisonment of less than 1 year or by a fine.’

26 Article 155(4) of that code provides:

‘If the limitation periods laid down in Article 154 have been exceeded once again, they shall be regarded as completed regardless of the number of interruptions.’

Code of Criminal Procedure

27 Article 40(1) of the Codul de procedură penală (Code of Criminal Procedure) provides:

‘The Înalta Curte de Casaţie şi Justiţie [(High Court of Cassation and Justice)] shall hear and determine, at first instance, crimes of high treason and offences committed by senators, MPs and Romanian members of the European Parliament, members of the Government, judges of the Curtea Constituțională [(Constitutional Court)], members of the Superior Council of Magistracy, judges of the Înalta Curte de Casaţie şi Justiţie [(High Court of Cassation and Justice)] and public prosecutors of the Parchetul de pe lângă Înalta Curte de Casație și Justiție [(Public Prosecutor’s Office at the High Court of Cassation and Justice, Romania)].’

28 Article 142(1) of that code, in the version thereof in force prior to 14 March 2016, was worded as follows:

‘The public prosecutor shall carry out technical surveillance or may order that it be carried out by the criminal investigation body, by specialised police officers, or by other specialist State bodies.’

29 Under Article 281(1) of the Code of Criminal Procedure:

‘Infringement of the provisions concerning the following shall always entail nullity:

…

1. the jurisdiction ratione materiae and ratione personae of courts, where the judgment has been delivered by a lower-ranking court than the court legally having jurisdiction;

…’

30 Article 342 of the Code of Criminal Procedure states:

‘The object of the procedure before the preliminary chamber shall consist in determining, following the reference before a court, the jurisdiction and the legality of the referral to the court and determining the legality of the taking of evidence and of the completion of acts by the criminal investigation bodies.’

31 Article 426(1) of that code provides:

‘An extraordinary action for annulment may be brought against final decisions in criminal proceedings in the following cases:

…

(d) where the composition of the appeal court is not in compliance with the law or where there is a case of incompatibility;

…’

32 Article 428(1) of the Code of Criminal Procedure provides:

‘An action for annulment on the grounds laid down in Article 426(a) and (c) to (h) may be brought within 30 days from the date of notification of the decision of the appeal court.’

Law No 47/1992

33 Article 3 of Legea nr. 47/1992 privind organizarea și funcționarea Curții Constituționale (Law No 47/1992 on the organisation and the functioning of the Curtea Constituțională (Constitutional Court)) of 18 May 1992 (republished in the Monitorul Oficial al României, part I, No 807 of 3 December 2010) provides:

‘1.

The powers of the Curtea Constituțională [(Constitutional Court)] shall be those laid down in the Constitution and in this Law.

2.

In the exercise of the powers conferred on it, the Curtea Constituțională [(Constitutional Court)] alone shall be entitled to decide on its jurisdiction.

3.

The jurisdiction of the Curtea Constituțională [(Constitutional Court)], as established pursuant to paragraph 2, cannot be contested by any public authority.’

34 Article 34(1) of that law states:

‘The Curtea Constituțională [(Constitutional Court)] shall rule on legal conflicts of a constitutional nature between public authorities, at the request of the President of Romania, the President of one of the two houses of the Romanian Parliament, the Prime Minister or the President of the Superior Council of Magistracy.’

Law No 78/2000

35 Article 5 of Legea nr. 78/2000 pentru prevenirea, descoperirea și sancționarea faptelor de corupție (Law No 78/2000 on the prevention, detection and punishment of acts of corruption) of 18 May 2000 (Monitorul Oficial al României, part I, No 219, of 18 May 2000) provides, in paragraph 1 thereof:

‘For the purposes of this Law, the offences set out Articles 289 to 292 of the Criminal Code are corruption offences, including when they are committed by the persons referred to in Article 308 of the Criminal Code.’

36 The articles of the Criminal Code mentioned in Article 5(1) of Law No 78/2000 concern, respectively, the offences of passive corruption (Article 289), active corruption (Article 290), influence peddling (Article 291) and influence peddling in an active form (Article 292).

37 Article 29(1) of that law provides:

‘Specialist panels shall be established to rule at first instance on the offences provided for in this Law.’

Law No 303/2004

38 Article 99 of Legea nr. 303/2004 privind statutul judecătorilor şi procurorilor (Law No 303/2004 on the rules governing judges and prosecutors) of 28 June 2004 (republished in the Monitorul Oficial al României, part I, No 826 of 13 September 2005), as amended by Legea nr. 24/2012 (Law No 24/2012) of 17 January 2012 (Monitorul Oficial al României, part I, No 51 of 23 January 2012) (‘Law No 303/2004’), provides:

‘The following shall constitute disciplinary offences:

…

(o) failure to comply with the provisions relating to the random allocation of cases;

…

(ș) failure to comply with the decisions of the Curtea Constituțională [(Constitutional Court)] …;

…’

39 Article 100 of that law provides, in paragraph 1 thereof:

‘The disciplinary penalties that may be imposed on judges and prosecutors, in proportion to the seriousness of the offences, are:

…

(e) exclusion from the judiciary.’

40 Article 101 of the law provides:

‘The disciplinary penalties provided for in Article 100 shall be imposed by the divisions of the Superior Council of Magistracy, subject to the conditions laid down in the organic law governing that body.’

Law No 304/2004

41 Legea nr. 304/2004 privind organizarea judiciară (Law No 304/2004 on the organisation of the judicial system) of 28 June 2004 (republished in the Monitorul Oficial al României, part I, No 827 of 13 September 2005) has been amended, inter alia, by:

• Legea nr. 202/2010 privind unele măsuri pentru accelerarea soluționării proceselor (Law No 202/2010 providing measures for the acceleration of the adjudication of proceedings) of 25 October 2010 (Monitorul Oficial al României, part I, No 714 of 26 October 2010);

• Legea nr. 255/2013 pentru punerea în aplicare a Legii nr. 135/2010 privind Codul de procedură penală şi pentru modificarea şi completarea unor acte normative care cuprind dispoziţii procesual penale (Law No 255/2013 implementing Law No 135/2010 on the Code of Criminal Procedure and amending and supplementing certain normative acts adopting provisions relating to criminal procedure) of 19 July 2013 (Monitorul Oficial al României, part I, No 515 of 14 August 2013);

• Legea nr. 207/2018 pentru modificarea și completarea Legii nr. 304/2004 privind organizarea judiciară (Law No 207/2018 amending and supplementing Law No 304/2004 on the organisation of the judicial system) of 20 July 2018 (Monitorul Oficial al României, part I, No 636 of 20 July 2018).

42 Article 19(3) of Law No 304/2004, as last amended by Law No 207/2018 (‘Law No 304/2004, as amended’), provides:

‘At the beginning of each year, acting on a proposal from the President or the Vice-President of the Înalta Curte de Casaţie şi Justiţie [(High Court of Cassation and Justice)], the governing council of the Înalta Curte de Casaţie şi Justiţie [(High Court of Cassation and Justice)] may approve the establishment of specialist panels within the chambers of the Înalta Curte de Casaţie şi Justiţie [(High Court of Cassation and Justice)], according to the number and nature of cases, the volume of activity of each chamber, the specialisation of the judges and the need to utilise their professional experience.’

43 Article 24(1) of that law provides:

‘The panels of five judges shall hear and determine appeals against decisions given at first instance by the criminal division of the Înalta Curte de Casaţie şi Justiţie [(High Court of Cassation and Justice)], rule on appeals in cassation against decisions given on appeal by panels of five judges once they have been found admissible, deal with appeals brought against decisions given in the course of trials at first instance by the criminal division of the Înalta Curte de Casaţie şi Justiţie [(High Court of Cassation and Justice)], and rule on disciplinary cases in accordance with the law and on other cases within the scope of the powers conferred on them by law.’

44 Article 29(1) of the law reads as follows:

‘The governing council of the Înalta Curte de Casaţie şi Justiţie [(High Court of Cassation and Justice)] shall have the following powers:

1. approval of the Regulation on the organisation and administrative functioning and of the staffing and personnel tables of the Înalta Curte de Casaţie şi Justiţie [(High Court of Cassation and Justice)];

…

1. exercise of the other powers provided for in the Regulation on the organisation and administrative functioning of the Înalta Curte de Casaţie şi Justiţie [(High Court of Cassation and Justice)].’

45 Article 31(1) of the same law states:

‘In criminal matters, the panels hearing cases shall be composed as follows:

1. in the cases assigned, in accordance with the law, to the jurisdiction at first instance of the Înalta Curte de Casaţie şi Justiţie [(High Court of Cassation and Justice)], the panel shall consist of three judges;

…’

46 Article 32 of Law No 304/2004, as amended, provides:

‘1.

At the beginning of each year, acting on a proposal from the President or the Vice-Presidents of the Înalta Curte de Casaţie şi Justiţie [(High Court of Cassation and Justice)], the governing council shall approve the number of panels of five judges and the composition of those panels.

…

4.

The judges sitting on those panels shall be selected by drawing lots, during a public hearing, by the President or, in his or her absence, by one of the two Vice-Presidents of the Înalta Curte de Casaţie şi Justiţie [(High Court of Cassation and Justice)]. The members of panels hearing cases may be changed only on an exceptional basis, in the light of the objective criteria established by the Regulation on the organisation and administrative functioning of the Înalta Curte de Casaţie şi Justiţie [(High Court of Cassation and Justice)].

5.

The panels of five judges shall be chaired by the President of the Înalta Curte de Casaţie şi Justiţie [(High Court of Cassation and Justice)], one of the Vice-Presidents, or by Presidents of Chambers if they have been appointed under paragraph 4 to sit on the panel concerned.

6.

If none of the above persons has been designated to sit on a panel of five judges, each judge shall chair a panel on a rotating basis, in order of their length in the service within the judiciary.

7.

Cases falling within the jurisdiction of panels of five judges shall be allocated randomly using a computerised system.’

47 Article 32 of Law No 304/2004, in the version thereof as amended by Law No 202/2010, provided:

‘1.

In criminal matters, two panels of five judges composed solely of members of the criminal chamber of the Înalta Curte de Casaţie şi Justiţie [(High Court of Cassation and Justice)] shall be established at the beginning of each year.

…

4.

The governing council of the Înalta Curte de Casaţie şi Justiţie [(High Court of Cassation and Justice)] shall approve the composition of the panels of five judges. The judges sitting on those panels shall be appointed by the President or, in his or her absence, by the Vice-President of the Înalta Curte de Casaţie şi Justiţie [(High Court of Cassation and Justice)]. The members of panels hearing cases may be changed only on an exceptional basis, in the light of the objective criteria established by the Regulation on the organisation and administrative functioning of the Înalta Curte de Casaţie şi Justiţie [(High Court of Cassation and Justice)].

5.

The panels of five judges shall be chaired by the President or the Vice-President of the Înalta Curte de Casaţie şi Justiţie [(High Court of Cassation and Justice)]. In their absence, the panel may be chaired by a President of a Chamber duly appointed by the President or, in his or her absence, by the Vice-President of the Înalta Curte de Casaţie şi Justiţie [(High Court of Cassation and Justice)].

6.

Cases falling within the jurisdiction of the panels referred to in paragraphs 1 and 2 shall be allocated randomly using a computerised system.’

48 Article 32(1) and (6) of Law No 304/2004, in the version thereof as amended by Law No 255/2013, were worded in almost identical terms to those of the version referred to in the preceding paragraph, whereas paragraphs 4 and 5 of that article provided:

‘4.

The governing council of the Înalta Curte de Casaţie şi Justiţie [(High Court of Cassation and Justice)], acting on a proposal from the President of the Criminal Chamber, shall approve the number of panels of five judges and the composition of those panels. The judges sitting on those panels shall be selected by drawing lots, during a public hearing, by the President or, in his or her absence, by the Vice-President of the Înalta Curte de Casaţie şi Justiţie [(High Court of Cassation and Justice)]. The members of panels hearing cases may be changed only on an exceptional basis, in the light of the objective criteria established by the Regulation on the organisation and administrative functioning of the Înalta Curte de Casaţie şi Justiţie [(High Court of Cassation and Justice)].

5.

The panels of five judges shall be chaired by the President or the Vice-President of the Înalta Curte de Casaţie şi Justiţie [(High Court of Cassation and Justice)]; if that person sits on the panel, in accordance with paragraph 4, the panel shall be chaired by the President of the Criminal Chamber or the eldest member, as the case may be.’

49 Article 33 of Law No 304/2004, as amended, reads:

‘1.

The President or, in his or her absence, one of the Vice-Presidents of the Înalta Curte de Casaţie şi Justiţie [(High Court of Cassation and Justice)] shall chair the combined chambers, the panel with jurisdiction to hear and determine actions brought in the interests of the law and the panel with jurisdiction to rule on questions of law, the panel of five judges and any panel within the chambers, where he or she participates in the proceedings.

…

3.

The Presidents of Chambers may chair any panel of the chamber, whereas other judges shall act as chair on a rotating basis.’

50 Article 33(1) of Law No 304/2004, in the version thereof as amended by Law No 202/2010, provided:

‘The President or, in his or her absence, the Vice-President of the Înalta Curte de Casaţie şi Justiţie [(High Court of Cassation and Justice)] shall chair the combined chambers, the panel of five judges and any panel within the chambers, where he or she participates in the proceedings.’

51 Under Article 33(1) of Law No 304/2004, in the version thereof as amended by Law No 255/2013:

‘The President or, in his or her absence, one of the Vice-Presidents of the Înalta Curte de Casaţie şi Justiţie [(High Court of Cassation and Justice)] shall chair the combined chambers, the panel with jurisdiction to hear and determine actions brought in the interests of the law and the panel with jurisdiction to rule on questions of law, the panel of five judges and any panel within the chambers, where he or she participates in the proceedings.’

Regulation on the organisation and administrative functioning of the Înalta Curte de Casaţie şi Justiţie (High Court of Cassation and Justice)

52 Article 28 of the Regulamentul privind organizarea şi funcţionarea administrativă a Înaltei Curţi de Casaţie şi Justiţie (Regulation on the organisation and administrative functioning of the Înalta Curte de Casaţie şi Justiţie (High Court of Cassation and Justice)) of 21 September 2004 (‘the Regulation on organisation and administrative functioning’), as amended by Hotărârea nr. 3/2014 pentru modificarea şi completarea Regulamentului privind organizarea şi funcţionarea administrativă a Înaltei Curţi de Casaţie şi Justiţie (Decision No 3/2014 amending and supplementing the Regulation on organisation and administrative functioning) of 28 January 2014 (Monitorul Oficial al României, part I, No 75 of 30 January 2014), provided:

‘1.

The Înalta Curte de Casaţie şi Justiţie [(High Court of Cassation and Justice)] shall include panels of five judges having jurisdiction to hear cases laid down by law.

…

4.

Panels of five judges shall be chaired, as appropriate, by the President, the Vice-Presidents, the President of the Criminal Chamber or the eldest member.’

53 Article 29(1) of that regulation provided:

‘With a view to establishing panels of five judges in criminal matters, the President or, in his or her absence, one of the Vice-Presidents of the Înalta Curte de Casaţie şi Justiţie [(High Court of Cassation and Justice)] shall select annually, by drawing lots, during a public hearing, four or, where appropriate, five judges from the Criminal Chamber of the Înalta Curte de Casaţie şi Justiţie [(High Court of Cassation and Justice)] for each panel.’

Case C‑379/19

137 KI pleads that each of the three questions referred for a preliminary ruling in Case C‑379/19 is inadmissible. With regard to the first question, he claims that the correct answer to that question is clear, pointing out that neither Decision 2006/928 nor the recommendations made in the Commission’s reports adopted on the basis of that decision were relied on in the context of the main proceedings. As for the second and third questions, KI is of the view that the queries raised by them are unconnected with the subject matter of the dispute in the main proceedings, and that the referring court is, in reality, merely seeking to circumvent its obligation to apply the case-law established in the decisions of the Curtea Constituțională (Constitutional Court) at issue in the main proceedings, non-compliance with which entails the disciplinary liability of the members of the referring court.

138 In that connection, as regards the fact that the correct interpretation of EU law is so clear in the present case that it leaves no room for any reasonable doubt, it is sufficient to state that, although such a circumstance, if it is proven, may prompt the Court to rule by means of an order pursuant to Article 99 of the Rules of Procedure, that same circumstance cannot however prevent a national court from referring a question for a preliminary ruling or have the effect of rendering the question thus referred inadmissible (see, to that effect, judgment of 23 November 2021, IS (Illegality of the order for reference) , C‑564/19, EU:C:2021:949, paragraph 96 ).

139 Furthermore, it is settled case-law that questions on the interpretation of EU law referred by a national court in the factual and legislative context which that court is responsible for defining, the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance. The Court may refuse to rule on a question referred by a national court only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its object, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (judgments of 18 May 2021, Asociaţia ‘Forumul Judecătorilor din România’ and Others , C‑83/19, C‑127/19, C‑195/19, C‑291/19, C‑355/19 and C‑397/19, EU:C:2021:393, paragraph 116 , and of 2 September 2021, INPS (Childbirth and maternity allowances for holders of single permits) , C‑350/20, EU:C:2021:659, paragraph 39 and the case-law cited).

140 In the present case, it is apparent from the order for reference that a request was made to the referring court, in the context of criminal proceedings relating inter alia to offences of corruption, by the defendants seeking the exclusion from the procedure, pursuant to several decisions of the Curtea Constituțională (Constitutional Court), of evidence consisting in reports of recordings of wiretaps. It is precisely because of its doubts as to the compatibility of those decisions, non-compliance with which by a national court can moreover entail the disciplinary liability of the judges involved in the decision within that court, with the requirement of judicial independence, as laid down in the second subparagraph of Article 19(1) TEU, that the referring court decided to ask the Court, in the second and third questions referred for a preliminary ruling, inter alia about the interpretation of that provision. As for Decision 2006/928, to which reference is made in the first question referred for a preliminary ruling, it should be noted that, in the light of recital 3 of that decision to which the request for a preliminary ruling refers, that requirement of independence is fleshed out by the benchmarks set out in the annex to that decision and the recommendations made in the Commission’s reports adopted on the basis of the decision. The connection between the main proceedings and the three questions referred is therefore clear from the request for a preliminary ruling.

141 It follows from the foregoing that the questions referred for a preliminary ruling in Case C‑379/19 are admissible.

Case C‑547/19

142 The Judicial Inspection contests the admissibility of the request for a preliminary ruling on the ground that Article 2 TEU, Article 19 TEU and Article 47 of the Charter, the interpretation of which is sought by the referring court, do not apply to the case in the main proceedings.

143 In that regard, it must be observed that the dispute in the main proceedings in Case C‑547/19 relates to an action brought before the referring court by a judge to challenge the disciplinary penalty of exclusion from the judiciary imposed on her, an action by which the individual concerned contests the legality of the composition of that court, established in accordance with the requirements laid down in Decision No 685/2018 of the Curtea Constituțională (Constitutional Court). Thus, the referring court is called upon to rule on that procedural plea and, in that context, to rule on the legality of its own composition, taking into account the case-law established in that decision which, in its view, may call its independence into question.

144 In addition, the referring court is a judicial body capable of ruling, as a court, on questions relating to the application or the interpretation of EU law and, therefore, falling within areas covered by EU law. In the present case, the second subparagraph of Article 19(1) TEU is thus intended to apply in respect of the referring court, which is required to ensure, in accordance with that provision, that the disciplinary regime applicable to judges of the national courts which come within the national judicial system in the fields covered by EU law observes the principle of the independence of judges, inter alia by guaranteeing that decisions issued in the context of disciplinary proceedings initiated in respect of judges of those courts are reviewed by a body which itself meets the requirements inherent in effective judicial protection, including the requirement of independence (judgment of 15 July 2021, Commission v Poland (Disciplinary regime for judges) , C‑791/19, EU:C:2021:596, paragraph 80 and the case-law cited). In interpreting that provision, account must be taken of both Article 2 TEU and Article 47 of the Charter.

145 It follows that the request for a preliminary ruling in Case C‑547/19 is admissible.

Cases C‑357/19, C‑811/19 and C‑840/19

146 With regard to Case C‑357/19, PM, RO and TQ as well as the Polish Government plead that the request for a preliminary ruling is inadmissible. First, PM and RO observe that their personal legal situation has no connection with offences affecting the European Union’s financial interests and, therefore, with Article 325(1) TFEU. Next, RO and TQ state that, in finding the extraordinary appeals admissible, the referring court has already ruled on the question of the applicability of Decision No 685/2018 of the Curtea Constituțională (Constitutional Court), such that, in their view, no further clarification of that question is required for the purposes of the outcome of the case in the main proceedings. Finally, the Polish Government is of the view that Case C‑357/19 falls outside the scope of EU law and, therefore, the scope of the Charter.

147 As for Case C‑811/19, the Polish Government likewise contests the admissibility of the request for a preliminary ruling, arguing that that case also falls outside the scope of EU law and that, therefore, the Charter is not to be applied.

148 In relation to Case C‑840/19, NC claims that the request for a preliminary ruling is inadmissible. With regard to the first question, he considers that Article 325 TFEU does not apply to that case because the offence at issue in the main proceedings does not affect the European Union’s financial interests. As for the third question, NC claims that, in view of the Court’s case-law on the principle of primacy of EU law, the answer to that question leaves no room for any reasonable doubt. More generally, in addition to the fact that, in his view, the outcome of the case in the main proceedings is not dependent on the answers to the questions referred, NC argues that the information and assessments provided by the referring court relating to the Curtea Constituțională (Constitutional Court), in particular concerning Decision No 417/2019 of the Curtea Constituțională (Constitutional Court), are incomplete and partly inaccurate. For its part, the Polish Government considers, for the same reasons as those put forward in Case C‑811/19, that the request for a preliminary ruling in Case C‑840/19 is inadmissible.

149 In relation to those various points, it has already been recalled in paragraph 139 of this judgment that, in accordance with settled case-law, questions on the interpretation of EU law referred by a national court in the factual and legislative context which that court is responsible for defining, the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance.

150 With regard to Case C‑357/19, it is apparent from the information provided in the request for a preliminary ruling that that request has its origin in criminal proceedings initiated against several people being prosecuted for offences of corruption related to the management of European funds and offences of tax fraud relating to VAT. As for Cases C‑811/19 and C‑840/19, the referring court has stated that the criminal proceedings at issue in the main proceedings concern offences of corruption relating to the award of public contracts in the context of projects financed by European funds. In the light of those factors, the accuracy of which is not a matter for the Court to determine, it appears that the main proceedings must be regarded as concerning, in part, VAT fraud likely to affect the European Union’s financial interests and that they thus fall within the scope of Article 325(1) TFEU (see, to that effect, judgment of 5 December 2017, M.A.S. and M.B., C‑42/17, EU:C:2017:936, paragraphs 31 and 32 and the case-law cited). As for the offences of corruption related to the award of public contracts under projects financed by European funds, the referring courts ask inter alia whether Article 325(1) TFEU applies to such offences, and therefore whether the argument alleging that that provision may be inapplicable can call into question the admissibility of the questions referred in that regard.

151 In addition, taking the view that the case-law of the Curtea Constituțională (Constitutional Court) established in Decisions No 685/2018 and No 417/2019 could undermine judicial independence and hamper the fight against corruption, the referring court in Cases C‑357/19, C‑811/19 and C‑840/19 asks the Court about the interpretation, inter alia, of Article 325(1) TFEU, Article 19(1) TEU and the principle of primacy of EU law in order to be able to determine whether it is required to apply or, on the contrary, to disapply those decisions. According to the information provided by the referring court, if those decisions are applicable the action will have to be upheld or proceedings on the merits of the case reopened. In those circumstances, the view cannot be taken that the interpretation sought, namely that of Article 325 TFEU, Article 19(1) TEU and Article 47 of the Charter, to which the requests for a preliminary ruling refer, appears manifestly unrelated to the examination of the actions in the main proceedings.

152 As regards the fact that the answer to the third question in Case C‑840/19 leaves no room for any doubt, a fact of that kind cannot, as is made clear in paragraph 138 of this judgment, prevent a national court from referring a question to the Court for a preliminary ruling or have the effect of rendering the question referred inadmissible.

153 Accordingly, the requests for a preliminary ruling in Cases C‑357/19, C‑811/19 and C‑840/19 are admissible.

The first question in Case C‑379/19

155 By its first question referred in Case C‑379/19, the referring court seeks, in essence, to ascertain whether Decision 2006/928 and the recommendations made in the Commission’s reports adopted on the basis of that decision are binding on Romania.

156 It must be recalled from the outset that Decision 2006/928 is an act adopted by an EU institution, namely the Commission, on the basis of the Act of Accession, which falls within the scope of EU primary law, and specifically constitutes a decision within the meaning of the fourth paragraph of Article 288 TFEU. As regards the Commission reports to the European Parliament and to the Council, drawn up under the CVM established by that decision, they must also be regarded as acts adopted by an EU institution, having as their legal basis EU law, namely Article 2 of that decision (judgment of 18 May 2021, Asociaţia ‘Forumul Judecătorilor din România’ and Others , C‑83/19, C‑127/19, C‑195/19, C‑291/19, C‑355/19 and C‑397/19, EU:C:2021:393, paragraph 149 ).

157 As is apparent from recitals 4 and 5 of Decision 2006/928, that decision was adopted in the context of Romania’s accession to the European Union, which took place on 1 January 2007, on the basis of Articles 37 and 38 of the Act of Accession, which empowered the Commission to take appropriate measures in the event of, respectively, imminent risk of serious breach of the functioning of the internal market linked to Romania’s failure to honour commitments undertaken in the context of the accession negotiations and imminent risk of serious shortcomings by Romania as regards compliance with EU law relating to the area of freedom, security and justice.

158 Decision 2006/928 was adopted because of the existence of imminent risks of the kind referred to in Articles 37 and 38 of the Act of Accession. As is apparent from the Commission’s monitoring report of 26 September 2006 on the state of preparedness for EU membership of Bulgaria and Romania (COM(2006) 549 final), referred to in recital 4 of Decision 2006/928, the Commission noted the persistence of deficiencies in Romania, in particular in the areas of justice and the fight against corruption, and proposed that the Council should make that Member State’s accession to the European Union subject to the establishment of a mechanism for cooperation and verification in order to deal with those deficiencies. To that end, Decision 2006/928, as is apparent in particular from recitals 4 and 6 thereof, established the CVM and laid down the benchmarks, referred to in Article 1 of, and set out in the Annex to, that decision, in the areas of reform of the judicial system and the fight against corruption (see, to that effect, judgment of 18 May 2021, Asociaţia ‘Forumul Judecătorilor din România’ and Others , C‑83/19, C‑127/19, C‑195/19, C‑291/19, C‑355/19 and C‑397/19, EU:C:2021:393, paragraphs 157 and 158 ).

159 In that regard, as stated in recitals 2 and 3 of Decision 2006/928, the area of freedom, security and justice and the internal market are based on the mutual confidence between Member States that their administrative and judicial decisions and practices fully respect the rule of law, which requires the existence in all Member States of an impartial, independent and effective judicial and administrative system properly equipped, inter alia, to fight corruption (judgment of 18 May 2021, Asociaţia ‘Forumul Judecătorilor din România’ and Others , C‑83/19, C‑127/19, C‑195/19, C‑291/19, C‑355/19 and C‑397/19, EU:C:2021:393, paragraph 159 ).

160 Article 49 TEU, which provides for the possibility for any European State to apply to become a member of the European Union, states that the European Union is composed of States which have freely and voluntarily committed themselves to the common values now referred to in Article 2 TEU, which respect those values and which undertake to promote them. In particular, it follows from Article 2 TEU that the European Union is founded on values, such as the rule of law, which are common to the Member States in a society in which, inter alia, justice prevails. In that regard, it should be noted that mutual trust between the Member States and, in particular, their courts and tribunals is based on the fundamental premiss that Member States share a set of common values on which the European Union is founded, as stated in that article (judgment of 18 May 2021, Asociaţia ‘Forumul Judecătorilor din România’ and Others , C‑83/19, C‑127/19, C‑195/19, C‑291/19, C‑355/19 and C‑397/19, EU:C:2021:393, paragraph 160 and the case-law cited).

161 Thus, compliance with the values referred to in Article 2 TEU constitutes a precondition for the accession to the European Union of any European State applying to become an EU member. It is in that context that the CVM was established by Decision 2006/928 in order to ensure that the value of the rule of law is complied with in Romania (judgment of 18 May 2021, Asociaţia ‘Forumul Judecătorilor din România’ and Others , C‑83/19, C‑127/19, C‑195/19, C‑291/19, C‑355/19 and C‑397/19, EU:C:2021:393, paragraph 161 ).

162 In addition, compliance by a Member State with the values enshrined in Article 2 TEU is a condition for the enjoyment of all of the rights deriving from the application of the Treaties to that Member State. A Member State cannot, therefore, amend its legislation in such a way as to bring about a reduction in the protection of the value of the rule of law, a value which is given concrete expression by, inter alia, Article 19 TEU. The Member States are thus required to ensure that, in the light of that value, any regression of their laws on the organisation of justice is prevented, by refraining from adopting rules which would undermine the independence of the judiciary (judgments of 18 May 2021, Asociaţia ‘Forumul Judecătorilor din România’ and Others , C‑83/19, C‑127/19, C‑195/19, C‑291/19, C‑355/19 and C‑397/19, EU:C:2021:393, paragraph 162 and the case-law cited, and of 15 July 2021, Commission v Poland (Disciplinary regime for judges) , C‑791/19, EU:C:2021:596, paragraph 51 ).

163 In that context, it is important to note that, under Article 2 of the Act of Accession, the acts adopted by the EU institutions before accession, which include Decision 2006/928, are to be binding on Romania from the date of its accession to the European Union and, in accordance with Article 2(3) of the Treaty of Accession, are to remain in force until they are repealed (judgment of 18 May 2021, Asociaţia ‘Forumul Judecătorilor din România’ and Others , C‑83/19, C‑127/19, C‑195/19, C‑291/19, C‑355/19 and C‑397/19, EU:C:2021:393, paragraph 163 ).

164 As regards, more specifically, the measures adopted on the basis of Articles 37 and 38 of the Act of Accession, while the first paragraph of each of those two articles authorised the Commission to adopt the measures to which those articles refer ‘until the end of a period of up to three years after accession’, the second paragraph of each of them nonetheless expressly provided that the measures thus adopted could be applied beyond that period as long as the relevant commitments had not been fulfilled or the shortcomings found persisted, and that the measures would be lifted only when the relevant commitment was implemented or the shortcoming at issue remedied. Indeed, Decision 2006/928 itself states, in recital 9 thereof, that it ‘should be repealed when all the benchmarks have been satisfactorily fulfilled’.

165 Consequently, Decision 2006/928 continues to produce its effects beyond the date of Romania’s accession to the European Union as long as it has not been repealed (see, to that effect, judgment of 18 May 2021, Asociaţia ‘Forumul Judecătorilor din România’ and Others , C‑83/19, C‑127/19, C‑195/19, C‑291/19, C‑355/19 and C‑397/19, EU:C:2021:393, paragraph 165 ).

166 With regard to whether and to what extent Decision 2006/928 is binding on Romania, it must be observed that the fourth paragraph of Article 288 TFEU provides, like the fourth paragraph of Article 249 EC, that a decision ‘shall be binding in its entirety’ on those to whom it is addressed.

167 In accordance with Article 4 of Decision 2006/928, that decision is addressed to all Member States, which includes Romania as from its accession. The decision is, therefore, binding in its entirety on that Member State as from its accession to the European Union. Thus, Decision 2006/928 imposes on Romania the obligation to address the benchmarks set out in its annex and to report each year to the Commission, pursuant to the first paragraph of Article 1 thereof, on the progress made in that regard (judgment of 18 May 2021, Asociaţia ‘Forumul Judecătorilor din România’ and Others , C‑83/19, C‑127/19, C‑195/19, C‑291/19, C‑355/19 and C‑397/19, EU:C:2021:393, paragraphs 167 and 168 ).

168 As regards, in particular, those benchmarks, it must be added that they were defined, as is apparent from paragraphs 157 to 162 above, on the basis of the deficiencies established by the Commission before Romania’s accession to the European Union in the areas of, inter alia, judicial reforms and the fight against corruption, and that they seek to ensure that that Member State complies with the value of the rule of law set out in Article 2 TEU, which is a condition for the enjoyment of all of the rights deriving from the application of the Treaties to that Member State. In addition, those benchmarks give concrete expression to the specific commitments undertaken by Romania and the requirements accepted by it at the conclusion of the accession negotiations on 14 December 2004, set out in Annex IX to the Act of Accession, concerning, in particular, the areas of justice and the fight against corruption. Thus, as is apparent from recitals 4 and 6 of Decision 2006/928, the purpose of establishing the CVM and setting the benchmarks was to complete Romania’s accession to the European Union, in order to remedy the deficiencies identified by the Commission in those areas prior to that accession (see, to that effect, judgment of 18 May 2021, Asociaţia ‘Forumul Judecătorilor din România’ and Others , C‑83/19, C‑127/19, C‑195/19, C‑291/19, C‑355/19 and C‑397/19, EU:C:2021:393, paragraphs 169 to 171 ).

169 It follows that the benchmarks are binding on Romania, with the result that it is subject to the specific obligation to address those benchmarks and to take appropriate measures to meet them as soon as possible. Similarly, Romania is required to refrain from implementing any measure which could jeopardise those benchmarks being met (judgment of 18 May 2021, Asociaţia ‘Forumul Judecătorilor din România’ and Others , C‑83/19, C‑127/19, C‑195/19, C‑291/19, C‑355/19 and C‑397/19, EU:C:2021:393, paragraph 172 ).

170 As for the reports drawn up by the Commission on the basis of Decision 2006/928, it should be borne in mind that, in order to determine whether an EU act produces binding legal effects, it is necessary to examine its substance and to assess its effects on the basis of objective criteria, such as the content of that act, taking into account, as appropriate, the context in which it was adopted and the powers of the institution which adopted the act (judgment of 18 May 2021, Asociaţia ‘Forumul Judecătorilor din România’ and Others , C‑83/19, C‑127/19, C‑195/19, C‑291/19, C‑355/19 and C‑397/19, EU:C:2021:393, paragraph 173 and the case-law cited).

171 In the present case, it is true that the reports drawn up on the basis of Decision 2006/928 are, in accordance with the first paragraph of Article 2 of that decision, addressed not to Romania but to the Parliament and the Council. Furthermore, although those reports include an analysis of the situation in Romania and formulate requirements with regard to that Member State, the conclusions set out therein address ‘recommendations’ to Romania on the basis of those requirements.

172 Nonetheless, as is apparent from a combined reading of Articles 1 and 2 of Decision 2006/928, the reports are intended to analyse and evaluate Romania’s progress in the light of the benchmarks which Romania must address. As regards, in particular, the recommendations in those reports, they are formulated with a view to those benchmarks being met and in order to guide that Member State’s reforms in that connection (judgment of 18 May 2021, Asociaţia ‘Forumul Judecătorilor din România’ and Others , C‑83/19, C‑127/19, C‑195/19, C‑291/19, C‑355/19 and C‑397/19, EU:C:2021:393, paragraph 175 ).

173 In that regard, it should be borne in mind that, according to settled case-law of the Court, it follows from the principle of sincere cooperation, laid down in Article 4(3) TEU, that the Member States are obliged to take all the measures necessary to guarantee the application and effectiveness of EU law and to eliminate the unlawful consequences of a breach of that law, and that such an obligation is owed, within the sphere of its competence, by every organ of the Member State concerned (judgment of 18 May 2021, Asociaţia ‘Forumul Judecătorilor din România’ and Others , C‑83/19, C‑127/19, C‑195/19, C‑291/19, C‑355/19 and C‑397/19, EU:C:2021:393, paragraph 176 and the case-law cited).

174 In those circumstances, in order to comply with the benchmarks set out in the annex to Decision 2006/928, Romania must take due account of the requirements and recommendations formulated in the reports drawn up by the Commission under that decision. In particular, Romania cannot adopt or maintain measures in the areas covered by the benchmarks which could jeopardise the result prescribed by those requirements and recommendations. Where the Commission expresses doubts, in such a report, as to whether a national measure is compatible with one of the benchmarks, it is for Romania to cooperate in good faith with the Commission with a view to overcoming the difficulties encountered with regard to meeting the benchmarks, while at the same time fully complying with those benchmarks and the provisions of the Treaties (judgment of 18 May 2021, Asociaţia ‘Forumul Judecătorilor din România’ and Others , C‑83/19, C‑127/19, C‑195/19, C‑291/19, C‑355/19 and C‑397/19, EU:C:2021:393, paragraph 177 ).

175 In the light of the foregoing considerations, the first question in Case C‑379/19 must be answered to the effect that Decision 2006/928 is, as long as it has not been repealed, binding in its entirety on Romania. The benchmarks in the annex to that decision are intended to ensure that Romania complies with the value of the rule of law, set out in Article 2 TEU, and are binding on it, to the effect that Romania is required to take the appropriate measures to meet those benchmarks, taking due account, under the principle of sincere cooperation laid down in Article 4(3) TEU, of the reports drawn up by the Commission on the basis of that decision, and in particular the recommendations made in those reports.

The first question in Cases C‑357/19 and C‑840/19 and the first and fourth questions in Case C‑811/19

176 By the first question in Cases C‑357/19 and C‑840/19 and the first and fourth questions in Case C‑811/19, which should be examined jointly, the referring court seeks, in essence, to ascertain whether Article 325(1) TFEU, read in conjunction with Article 2 of the PFI Convention, is to be interpreted as precluding national rules or a national practice under which judgments in matters of corruption and VAT fraud, which were not delivered, at first instance, by panels specialised in such matters or, on appeal, by panels all the members of which were selected by drawing lots, are rendered absolutely null and void, such that the cases of corruption and VAT fraud concerned must, as the case may be further to an extraordinary appeal against final judgments, be re-examined at first and/or second instance.

177 As a preliminary point, it must be stated that the referring court in those cases points to the significance of the effects that the case-law of the Curtea Constituțională (Constitutional Court) established in Decisions No 685/2018 and No 417/2019, which relates to the composition of the panels of the Înalta Curte de Casaţie şi Justiţie (High Court of Cassation and Justice), could have on the effectiveness of the proceedings, the penalties and the enforcement of the penalties in matters of corruption and VAT fraud such as those to which the defendants are subject, defendants who include people who occupied the highest positions in the Romanian State at the time of the alleged facts. It is thus asking the Court, in essence, about the compatibility of such case-law with EU law.

178 Although the questions which it submits in that regard refer formally to Article 325(1) TFEU, read in conjunction with Article 2 of the PFI Convention, without making reference to Decision 2006/928, that decision and the benchmarks contained in the annex thereto are relevant for the purposes of the answer to be given to those questions. By contrast, although the referring court also refers, in its questions, to the second subparagraph of Article 19(1) TEU and to Directives 2015/849 and 2017/1371, an examination focused, additionally, on the latter provisions appears unnecessary for the purposes of addressing the queries raised by those questions. As far as concerns those directives, it should, moreover, be noted that the relevant period in the cases at issue in the main proceedings predates the entry into force of the directives.

179 In those circumstances, the questions must be answered in the light both of Article 325(1) TFEU, read in conjunction with Article 2 of the PFI Convention, and of Decision 2006/928.

180 In that regard, as recalled in paragraph 133 of this judgment, EU law does not, as it currently stands, provide for rules governing the organisation of justice in the Member States and, in particular, the composition of the panels hearing cases in matters of corruption and fraud. Accordingly, those rules fall, in principle, within the competence of the Member States. However, those States are obliged, in the exercise of that competence, to comply with their obligations deriving from EU law.

181 With regard to the obligations under Article 325(1) TFEU, that provision requires the Member States to counter fraud and any other illegal activity affecting the financial interests of the European Union through effective deterrent measures (judgments of 5 June 2018, Kolev and Others , C‑612/15, EU:C:2018:392, paragraph 50 and the case-law cited, and of 17 January 2019, Dzivev and Others , C‑310/16, EU:C:2019:30, paragraph 25 ).

182 In that context, in order to ensure the protection of the financial interests of the European Union, it is for the Member States, inter alia, to adopt the measures necessary to guarantee the effective and comprehensive collection of own resources, namely the revenue from the application of a uniform rate to the harmonised VAT assessment bases (see, to that effect, judgments of 5 December 2017, M.A.S. and M.B ., C‑42/17, EU:C:2017:936, paragraphs 31 and 32 and the case-law cited, and of 5 June 2018, Kolev and Others , C‑612/15, EU:C:2018:392, paragraphs 51 and 52 ). Similarly, Member States are required to take effective measures to recover sums wrongly paid to the beneficiary of a subsidy funded in part from the budget of the European Union (judgment of 1 October 2020, Úrad špeciálnej prokuratúry , C‑603/19, EU:C:2020:774, paragraph 55 ).

183 Accordingly, as the Advocate General observed, in essence, in points 94 and 95 of his Opinion in Cases C‑357/19 and C‑547/19, the concept of ‘financial interests’ of the European Union, within the meaning of Article 325(1) TFEU, encompasses not only revenue made available to the EU budget but also expenditure covered by that budget. That interpretation is supported by the definition of the concept of ‘fraud affecting the [European Union’s] financial interests’, which is contained in Article 1(1)(a) and (b) of the PFI Convention and covers the various intentional acts or omissions in relation both to expenditure and to revenue.

184 Furthermore, with regard to the phrase ‘any other illegal activities’ contained in Article 325(1) TFEU, it should be recalled that the term ‘illegal activities’ usually denotes unlawful behaviour, and the use of the word ‘any’ indicates the intention to encompass all such behaviour, without distinction. Furthermore, in view of the importance that should be accorded to protecting the financial interests of the European Union, which in itself constitutes an objective of the latter, the concept of ‘illegal activities’ cannot be interpreted restrictively (judgment of 2 May 2018, Scialdone , C‑574/15, EU:C:2018:295, paragraph 45 and the case-law cited).

185 Thus, as the Advocate General noted, in essence, in point 100 of his Opinion in Cases C‑357/19 and C‑547/19, the concept of ‘illegal activities’ covers inter alia any act of corruption by public officials or abuse of office by them, which is liable to affect the European Union’s financial interests, in the form, for example, of the unlawful receipt of EU funds. In that context, it is irrelevant whether the acts of corruption take the form of an act or omission by the public official concerned, given the fact that an omission may be as detrimental to the European Union’s financial interests as an act and be intrinsically linked to such an act, as are, for example, a public official’s failure to conduct the audits and checks required for expenditure covered by the EU budget or the authorisation of inappropriate or incorrect expenditure of EU funds.

186 The fact that Article 2(1) of the PFI Convention, read in conjunction with Article 1(1) of that convention, refers only to fraud affecting the European Union’s financial interests cannot invalidate that interpretation of Article 325(1) TFEU, the wording of which refers expressly to‘fraud and any other illegal activities affecting the financial interests of the Union’. In addition, as is apparent from Article 1(a) of the Convention, the misapplication of funds from the budget of the European Union for purposes other than those for which they were originally granted constitutes fraud, even though such misapplication may also be the cause or the result of an act of corruption. This effectively shows that acts of corruption may be linked to cases of fraud and, conversely, the commission of fraud can be facilitated by acts of corruption, and therefore financial interests can, in certain cases, be affected as a result of a combination of VAT fraud and acts of corruption. As the Advocate General observed in essence in point 98 of his Opinion in Cases C‑357/19 and C‑547/19, the possible existence of such a link is confirmed by the Protocol to the PFI Convention, which covers, under Articles 2 and 3 thereof, acts of passive and active corruption.

187 It must also be recalled that the Court has already held that even irregularities having no specific financial impact may be seriously prejudicial to the financial interests of the European Union (judgment of 21 December 2011, Chambre de commerce et d’industrie de l’Indre , C‑465/10, EU:C:2011:867, paragraph 47 and the case-law cited). Accordingly, as the Advocate General noted in point 103 of his Opinion in Cases C‑357/19 and C‑547/19, Article 325(1) TFEU could cover not only acts that actually cause a loss of own resources but also attempts to commit such acts.

188 In that context, it must be added that, as far as concerns Romania, the obligation to fight corruption affecting the European Union’s financial interests, which follows from Article 325(1) TFEU, is supplemented by the specific commitments accepted by Romania when accession negotiations were completed on 14 December 2004. In accordance with point I(4) of Annex IX to the Act of Accession, Romania committed inter alia to ‘considerably step up the fight against corruption and in particular against high-level corruption by ensuring a rigorous enforcement of the anti-corruption legislation’. That specific commitment was subsequently given concrete expression by the adoption of Decision 2006/928, which sets benchmarks for the purpose of addressing the shortcomings observed by the Commission prior to Romania’s accession to the European Union, in particular in the area of the fight against corruption. Thus, the annex to that decision, in which those benchmarks are set out, refers, in point 3 thereof, to the objective of ‘continu[ing] to conduct professional, non-partisan investigations into allegations of high-level corruption’, and, in point 4 thereof, to the objective of ‘tak[ing] further measures to prevent and fight against corruption, in particular within the local government’.

189 As stated in paragraph 169 above, the benchmarks that Romania thus committed to achieving are binding on it, in the sense that Romania is subject to the specific obligation to achieve those objectives and to adopt the appropriate measures with a view to achieving them as soon as possible. Similarly, Romania is required to refrain from implementing any measure that would risk undermining the attainment of those same objectives. In addition, the obligation to combat corruption and, in particular, high-level corruption effectively, which stems from the benchmarks set out in the annex to Decision 2006/928, read in conjunction with Romania’s specific commitments, is not limited merely to cases of corruption affecting the European Union’s financial interests.

190 Furthermore, it follows, first, from the requirements of Article 325(1) TFEU, under which fraud and any other illegal activities affecting the financial interests of the Union must be countered, and, second, from the requirements of Decision 2006/928, under which corruption must be prevented and combatted in general, that Romania must provide for the application of penalties that are effective and that act as a deterrent in case of such offences (see, to that effect, judgment of 5 June 2018, Kolev and Others , C‑612/15, EU:C:2018:392, paragraph 53 ).

191 While Romania has in that regard a freedom to choose the applicable penalties, which may take the form of administrative penalties, criminal penalties or a combination of the two, it must nonetheless ensure, pursuant to Article 325(1) TFEU, that cases of serious fraud and corruption affecting the financial interests of the Union are punishable by criminal penalties that are effective and that act as a deterrent (see, to that effect, judgments of 5 June 2018, Kolev and Others , C‑612/15, EU:C:2018:392, paragraph 54 and the case-law cited, and of 17 January 2019, Dzivev and Others , C‑310/16, EU:C:2019:30, paragraph 27 ). In addition, with regard to offences of corruption in general, the obligation to provide for criminal penalties that are effective and that act as a deterrent stems, in the case of Romania, from Decision 2006/928, since, as stated in paragraph 189 above, that decision requires Romania to combat corruption and, in particular, high-level corruption effectively, irrespective of any adverse effect on the European Union’s financial interests.

192 In addition, it is for Romania to ensure that its rules of criminal law and of criminal procedure allow for the effective prosecution of offences of fraud affecting the financial interests of the European Union and of corruption in general. Thus, even though the penalties provided and criminal procedures initiated in order to counter such infringements fall within the competence of Romania, that competence is limited not only by the principles of proportionality and equivalence, but also by the principle of effectiveness, which requires that those penalties are effective and act as a deterrent (see, to that effect, judgments of 2 May 2018, Scialdone , C‑574/15, EU:C:2018:295, paragraph 29 , and of 17 January 2019, Dzivev and Others , C‑310/16, EU:C:2019:30, paragraphs 29 and 30 ). That requirement of effectiveness necessarily covers both the prosecutions of and the penalties for offences of fraud affecting the European Union’s financial interests and of corruption in general and the enforcement of the penalties imposed, since unless they are enforced effectively penalties cannot be effective and act as a deterrent.

193 In that context, it is primarily for the national legislature to take the necessary measures. It falls to it, where required, to amend its legislation and to ensure that the procedural rules applicable to the prosecution of, and the imposition of penalties for, offences of fraud affecting the financial interests of the European Union and offences of corruption in general are not designed in such a way that there arises, for reasons inherent in those rules, a systemic risk that acts that may be categorised as such offences may go unpunished, and also to ensure that the fundamental rights of accused persons are protected (see, to that effect, judgments of 5 June 2018, Kolev and Others , C‑612/15, EU:C:2018:392, paragraph 65 , and of 17 January 2019, Dzivev and Others , C‑310/16, EU:C:2019:30, paragraph 31 ).

194 As for the national courts, it is for them to give full effect to the obligations under Article 325(1) TFEU and Decision 2006/928 and to disapply national provisions which, in connection with proceedings concerning serious fraud affecting the financial interests of the European Union or offences of corruption in general, prevent the application of effective penalties that act as a deterrent in order to counter such offences (see, to that effect, judgments of 5 December 2017, M.A.S. and M.B., C‑42/17, EU:C:2017:936, paragraph 39 and the case-law cited; of 17 January 2019, Dzivev and Others , C‑310/16, EU:C:2019:30, paragraph 32 ; and of 18 May 2021, Asociaţia ‘Forumul Judecătorilor din România’ and Others , C‑83/19, C‑127/19, C‑195/19, C‑291/19, C‑355/19 and C‑397/19, EU:C:2021:393, paragraphs 249 and 251 ).

195 In the present case, it is apparent from the information provided in the requests for a preliminary ruling in Cases C‑357/19, C‑811/19 and C‑840/19, as summarised in paragraphs 60, 95 and 107 of this judgment, that, by its Decision No 417/2019, delivered on 3 July 2019 on referral from the President of the Chamber of Deputies, the Curtea Constituțională (Constitutional Court) ordered that all cases on which the Înalta Curte de Casaţie şi Justiţie (High Court of Cassation and Justice) had ruled at first instance prior to 23 January 2019 and in which the decisions given by that court were not final on the date of that decision be re-examined by panels specialised in anti-corruption matters and established in accordance with Article 29(1) of Law No 78/2000, as interpreted by the Curtea Constituțională (Constitutional Court). According to that same information, the findings made in Decision No 417/2019 require the re-examination at first instance, inter alia, of all cases which, as at 23 January 2019, were pending on appeal or in which the judgment on appeal was, as at that same date, still open to an extraordinary appeal. It is further apparent from the information that, in its Decision No 685/2018, which was delivered on 7 November 2018 on referral from the Prime Minister, the Curtea Constituțională (Constitutional Court) found that the selection by the drawing of lots of only four of the five members of the five-judge panels of the Înalta Curte de Casaţie şi Justiţie (High Court of Cassation and Justice) ruling on appeal was contrary to Article 32 of Law No 304/2004, as amended, and clarified that, with effect from the date of its publication, that decision was applicable, inter alia, to cases pending before the courts and to cases in which a ruling had been given, in so far as the individuals concerned were still within the period for the exercise of the appropriate extraordinary appeals, and that the case-law established in that decision requires that all those cases be subject to re-examination on appeal by a panel, all the members of which are selected by the drawing of lots.

196 Furthermore, as is clear from paragraph 108 of this judgment, the case-law of the Curtea Constituțională (Constitutional Court) established in the decisions mentioned in the preceding paragraph can apply successively, which may entail, in relation to a defendant in a situation such as that of NC, the need for the case to be examined twice at first instance and, potentially, a third time on appeal.

197 Thus, the need arising from that case-law of the Curtea Constituțională (Constitutional Court) to re-examine the corruption cases concerned necessarily has the effect of prolonging the duration of the corresponding criminal proceedings. In addition, aside from the fact that Romania had committed, as is clear from point I(5) of Annex IX to the Act of Accession, to ‘revise the protracted criminal procedure by the end of 2005 to ensure that corruption cases are dealt with in a swift and transparent manner, in order to guarantee adequate sanctions that have a deterrent effect’, the Court has held that, in view of Romania’s specific obligations under Decision 2006/928 in relation to the fight against corruption, the related national rules and practice cannot result in the duration of investigations into corruption offences being extended or the fight against corruption being in any way weakened (see, to that effect, judgment of 18 May 2021, Asociaţia ‘Forumul Judecătorilor din România’ and Others , C‑83/19, C‑127/19, C‑195/19, C‑291/19, C‑355/19 and C‑397/19, EU:C:2021:393, paragraph 214 ).

198 It must be added that the referring court in Cases C‑357/19, C‑811/19 and C‑840/19 mentioned not only the complexity and duration of such a re-examination before the Înalta Curte de Casaţie şi Justiţie (High Court of Cassation and Justice) but also the national rules on limitation, in particular the rule laid down in Article 155(4) of the Criminal Code, under which limitation takes effect, regardless of the number of interruptions, no later than the date on which a period of time equal to double the statutory limitation period concerned has expired. It thus considers that the application of the case-law of the Curtea Constituțională (Constitutional Court) established in Decisions No 685/2018 and No 417/2019 could, in a significant number of cases, result in offences becoming time-barred, and therefore include a systemic risk of serious fraud affecting the European Union’s financial interests or of corruption in general going unpunished.

199 Finally, according to the information contained in the requests for a preliminary ruling, the Înalta Curte de Casaţie şi Justiţie (High Court of Cassation and Justice) has exclusive jurisdiction to hear and determine all offences of fraud liable to affect the European Union’s financial interests and offences of corruption in general, committed by people occupying the highest positions in the Romanian State in the executive, legislature and judiciary.

200 In that regard, it must be stated that a systemic risk of offences going unpunished cannot be ruled out when the application of the case-law of the Curtea Constituțională (Constitutional Court) established in Decisions No 685/2018 and No 417/2019, in conjunction with the implementation of the national rules on limitation, has the effect of precluding the effective punishment acting as a deterrent of a quite specific category of persons, here those occupying the highest positions of the Romanian State who have been convicted for committing, in the exercise of their duties, acts of serious fraud and/or corruption by judgment delivered at first instance and/or on appeal by the Înalta Curte de Casaţie şi Justiţie (High Court of Cassation and Justice), given that that judgment has nevertheless been the subject of an appeal and/or an extraordinary appeal before that same court.

201 Even though temporal limits do apply to them, those decisions of the Curtea Constituțională (Constitutional Court) may, inter alia, have a direct and general effect on that category of persons, since, by rendering such a judgment convicting an individual and delivered by the Înalta Curte de Casaţie şi Justiţie (High Court of Cassation and Justice) absolutely null and void and requiring a re-examination of the cases of fraud and/or corruption concerned, those decisions may have the effect of prolonging the duration of the corresponding criminal proceedings beyond the applicable limitation periods, thus meaning that the risk of that category of persons going unpunished becomes systemic.

202 Such a risk would call into question the objective pursued both by Article 325(1) TFEU and by Decision 2006/928, namely to combat high-level corruption by means of effective penalties acting as a deterrent.

203 It follows that, if the referring court in Cases C‑357/19, C‑811/19 and C‑840/19 were to conclude that the application of the case-law of the Curtea Constituțională (Constitutional Court) established in Decisions No 685/2018 and No 417/2019, in conjunction with the implementation of the national rules on limitation and, in particular, the absolute limitation period laid down in Article 155(4) of the Criminal Code, entails a systemic risk of acts constituting serious fraud affecting the European Union’s financial interests or corruption in general going unpunished, the penalties provided for in national law to counter such offences could not be regarded as effective and acting as a deterrent, which would be incompatible with Article 325(1) TFEU, read in conjunction with Article 2 of the PFI Convention and with Decision 2006/928.

204 That being the case, since the criminal proceedings at issue in the main proceedings amount to an implementation of Article 325(1) TFEU and/or of Decision 2006/928 and, therefore, of EU law, within the meaning of Article 51(1) of the Charter, that referring court must also satisfy itself that the fundamental rights guaranteed by the Charter to the persons concerned in the main proceedings, in particular those guaranteed in Article 47 of the Charter, are respected. In criminal law, respect for those rights must be guaranteed not only during the stage of the preliminary investigation, from the moment when the person concerned becomes an accused, but also during the criminal proceedings (see, to that effect, judgments of 5 June 2018, Kolev and Others , C‑612/15, EU:C:2018:392, paragraphs 68 and 71 and the case-law cited, and of 17 January 2019, Dzivev and Others , C‑310/16, EU:C:2019:30, paragraph 33 ) and in the enforcement of the penalties.

205 In that regard, it must be recalled that the first sentence of the second paragraph of Article 47 of the Charter enshrines the entitlement of everyone to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. By requiring that the tribunal be ‘previously established by law’, that provision seeks to ensure that the organisation of the judicial system is regulated by law emanating from the legislature in compliance with the rules governing its jurisdiction, with a view to preventing such organisation being left to the discretion of the executive. That requirement covers not only the legal basis for the very existence of a tribunal, but also any other provision of domestic law which, if breached, would render the participation of one or more judges in the examination of a case irregular, such as the provisions governing the composition of the panel hearing the case (see, by analogy, by reference to the case-law of the European Court of Human Rights on Article 6 ECHR, judgments of 26 March 2020, Review Simpson v Council and HG v Commission , C‑542/18 RX‑II and C‑543/18 RX‑II, EU:C:2020:232, paragraph 73 , and of 6 October 2021, W.Ż. (Chamber of Extraordinary Control and Public Affairs of the Supreme Court – Appointment) , C‑487/19, EU:C:2021:798, paragraph 129 ).

206 It should be observed that an irregularity committed during the composition of panels entails an infringement of the first sentence of the second paragraph of Article 47 of the Charter, particularly when that irregularity is of such a kind and of such gravity as to create a real risk that other branches of the State, in particular the executive, could exercise undue discretion undermining the integrity of the outcome of the panel composition process and thus give rise to a reasonable doubt in the minds of individuals as to the independence and the impartiality of the judge or judges concerned, which is the case when what is at issue are fundamental rules forming an integral part of the establishment and functioning of that judicial system (see, to that effect, judgments of 26 March 2020, Review Simpson v Council and HG v Commission , C‑542/18 RX‑II and C‑543/18 RX‑II, EU:C:2020:232, paragraph 75 , and of 6 October 2021, W.Ż. (Chamber of Extraordinary Control and Public Affairs of the Supreme Court – Appointment) , C‑487/19, EU:C:2021:798, paragraph 130 ).

207 In the present case, although the Curtea Constituțională (Constitutional Court) found, in the decisions at issue in the main proceedings, that the earlier practice of the Înalta Curte de Casaţie şi Justiţie (High Court of Cassation and Justice), based inter alia on the Regulation on organisation and administrative functioning, relating to the specialisation and the composition of the panels hearing cases related to corruption, was inconsistent with the applicable national provisions, it does not appear that that practice was vitiated by a manifest breach of a fundamental rule of Romania’s judicial system, such as to call into question the fact that the panels of the Înalta Curte de Casaţie şi Justiţie (High Court of Cassation and Justice) hearing cases related to corruption, such as those established in line with the practice adopted prior to those decisions of the Curtea Constituțională (Constitutional Court), constitute a tribunal ‘previously established by law’.

208 In addition, as is clear from paragraph 95 of this judgment, on 23 January 2019, the governing council of the Înalta Curte de Casaţie şi Justiţie (High Court of Cassation and Justice) adopted a decision to the effect that all panels of three judges of that court were specialised in hearing and determining corruption cases, a decision which, according to the Curtea Constituțională (Constitutional Court), was capable of preventing unconstitutionality only with effect from the date of its adoption and not in relation to the past. That decision, as interpreted by the Curtea Constituțională (Constitutional Court), states that the earlier practice of the Înalta Curte de Casaţie şi Justiţie (High Court of Cassation and Justice) vis-à-vis specialisation does not constitute a manifest breach of a fundamental rule of Romania’s judicial system, since the requirement of specialisation stemming from Decision No 417/2019 of the Curtea Constituțională (Constitutional Court) was deemed to be met simply by the adoption of a formal act, such as the decision of 23 January 2019, which merely confirms that the judges of the Înalta Curte de Casaţie şi Justiţie (High Court of Cassation and Justice) who were part of the panels hearing cases related to corruption prior to the adoption of that decision were specialised in such matters.

209 Moreover, Cases C‑357/19, C‑840/19 and C‑811/19 must be distinguished from that which gave rise to the judgment of 5 December 2017, M.A.S. and M.B . (C‑42/17, EU:C:2017:936 ), in which the Court held that, if the national court comes to the view that the obligation to disapply the national provisions at issue conflicts with the principle that offences and penalties must be defined by law, as enshrined in Article 49 of the Charter, it is not obliged to comply with that obligation (see, to that effect, judgment of 5 December 2017, M.A.S. and M.B ., C‑42/17, EU:C:2017:936, paragraph 61 ). By contrast, the requirements arising from the first sentence of the second paragraph of Article 47 of the Charter do not preclude the non-application of the case-law established in Decisions No 685/2018 and No 417/2019 in Cases C‑357/19, C‑840/19 and C‑811/19.

210 In his answer to a question put by the Court in Case C‑357/19, PM argued that the requirement that judgments on appeal in corruption cases must be given by panels all the members of which are selected by the drawing of lots is a national standard of protection of fundamental rights. For their part, the Romanian Government and the Commission are, however, of the view that such a characterisation is incorrect as regards both that requirement and the requirement related to the establishment of panels specialised in relation to corruption offences.

211 In that regard, it need simply be stated that, even assuming that those requirements constitute such a national standard of protection, the fact remains that, when a court of a Member State is called upon to review the compatibility with fundamental rights of a national provision or measure which, in a situation in which the action of the Member States is not entirely determined by EU law, implements EU law for the purposes of Article 51(1) of the Charter, Article 53 of the Charter confirms that national authorities and courts are free to apply national standards of protection of fundamental rights, provided that the level of protection provided for by the Charter, as interpreted by the Court, and the primacy, unity and effectiveness of EU law are not thereby compromised (judgments of 26 February 2013, Åkerberg Fransson , C‑617/10, EU:C:2013:105, paragraph 29 ; of 26 February 2013, Melloni , C‑399/11, EU:C:2013:107, paragraph 60 ; and of 29 July 2019, Pelham and Others , C‑476/17, EU:C:2019:624, paragraph 80 ).

212 If the referring court in Cases C‑357/19, C‑811/19 and C‑840/19 were to come to the conclusion set out in paragraph 203 above, the application of the national standard of protection relied on by PM, should it prove to be established, could compromise the primacy, unity and effectiveness of EU law, in particular Article 325(1) TFEU, read in conjunction with Article 2 of the PFI Convention, and Decision 2006/928. In that scenario, the application of that national standard of protection would entail a systemic risk of acts constituting serious fraud affecting the European Union’s financial interests or corruption in general going unpunished, in breach of the requirement, arising from those provisions, that provision be made for effective deterrent penalties in order to combat offences of that kind.

213 In the light of the foregoing considerations, the first question in Cases C‑357/19 and C‑840/19 and the first and fourth questions in Case C‑811/19 must be answered to the effect that Article 325(1) TFEU, read in conjunction with Article 2 of the PFI Convention, and Decision 2006/928 are to be interpreted as precluding national rules or a national practice under which judgments in matters of corruption and VAT fraud, which were not delivered, at first instance, by panels specialised in such matters or, on appeal, by panels all the members of which were selected by drawing lots, are rendered absolutely null and void, such that the cases of corruption and VAT fraud concerned must, as the case may be further to an extraordinary appeal against final judgments, be re-examined at first and/or second instance, where the application of those national rules or that national practice is capable of giving rise to a systemic risk of acts constituting serious fraud affecting the European Union’s financial interests or corruption in general going unpunished. The obligation to ensure that such offences are subject to criminal penalties that are effective and act as a deterrent does not exempt the referring court from verifying the necessary observance of the fundamental rights guaranteed in Article 47 of the Charter, but does not allow that court to apply a national standard of protection of fundamental rights entailing such a systemic risk of impunity.

The second and third questions in Cases C‑357/19, C‑379/19, C‑811/19 and C‑840/19 and the single question in Case C‑547/19

214 By the second and third questions in Cases C‑357/19, C‑379/19, C‑811/19 and C‑840/19 and the single question in Case C‑547/19, which should be examined jointly, the referring courts ask, in essence, whether, first, Article 2 TEU and the second subparagraph of Article 19(1) TEU, Article 47 of the Charter and Decision 2006/928, and, second, the principle of primacy of EU law in conjunction with those provisions and Article 325(1) TFEU are to be interpreted as precluding national rules or a national practice under which the ordinary courts are bound by the decisions of the national constitutional court and cannot, by virtue of that fact and without committing a disciplinary offence, disapply, on their own authority, the case-law established in those decisions, even though they are of the view, in the light of a judgment of the Court, that that case-law is contrary to the abovementioned provisions of EU law.