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.
– The guarantee of judicial independence
215
The referring courts are of the view that the case-law of the Curtea Constituțională (Constitutional Court) established in the decisions at issue in the main proceedings is liable to call into question their independence and is, therefore, incompatible with EU law, in particular with the guarantees provided for in Article 2 TEU and the second subparagraph of Article 19(1) TEU as well as in Article 47 of the Charter and with Decision 2006/928. In that regard, they consider that the Curtea Constituțională (Constitutional Court), which is not part of the Romanian judicial system, exceeded its powers by delivering the decisions at issue in the main proceedings and encroached upon the jurisdiction of the ordinary courts, namely to interpret and apply infra-constitutional legislation. The referring courts further state that a failure to comply with the decisions of the Curtea Constituțională (Constitutional Court) constitutes, in Romanian law, a disciplinary offence, and they therefore ask, in essence, whether they can, under EU law, disapply those decisions at issue in the main proceedings without fear of being subject to disciplinary proceedings.
216
In that regard, as stated in paragraph 133 of this judgment, although the organisation of justice in the Member States, including the establishment, composition and functioning of a constitutional court, falls within the competence of those Member States, they are nonetheless required, when exercising that competence, to comply with their obligations deriving from EU law.
217
Article 19 TEU, which gives concrete expression to the value of the rule of law affirmed in Article 2 TEU, entrusts the responsibility for ensuring the full application of EU law in all Member States and the judicial protection that individuals derive from EU law to national courts and tribunals and to the Court of Justice (judgments of
5 November 2019,
Commission v Poland (Independence of ordinary courts)
, C‑192/18, EU:C:2019:924, paragraph 98
and the case-law cited, and of
2 March 2021,
A.B. and Others (Appointment of judges to the Supreme Court – Actions)
, C‑824/18, EU:C:2021:153, paragraph 108
).
218
Specifically, as is confirmed by recital 3 of Decision 2006/928, the value of the rule of law ‘implies for all Member States the existence of an impartial, independent and effective judicial and administrative system properly equipped, inter alia, to fight corruption’.
219
The very existence of effective judicial review designed to ensure compliance with EU law is of the essence of the rule of law. In that regard, as provided for in the second subparagraph of Article 19(1) TEU, it is for the Member States to establish a system of legal remedies and procedures ensuring for individuals compliance with their right to effective judicial protection in the fields covered by EU law. The principle of the effective judicial protection of individuals’ rights under EU law, referred to in the second subparagraph of Article 19(1) TEU, is a general principle of EU law stemming from the constitutional traditions common to the Member States, which has been enshrined in Articles 6 and 13 ECHR and is now reaffirmed in Article 47 of the Charter (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 189 and 190
and the case-law cited).
220
It follows that, pursuant to the second subparagraph of Article 19(1) TEU, every Member State must ensure that the bodies which are called upon, as ‘courts or tribunals’ within the meaning of EU law, to rule on questions related to the application or interpretation of EU law and thus come within its judicial system in the fields covered by EU law, meet the requirements of effective judicial protection, it being clarified that that provision refers to ‘fields covered by Union law’, irrespective of the circumstances in which the Member States are implementing EU law within the meaning of Article 51(1) of the Charter (see, to that effect, judgments of
5 November 2019,
Commission v Poland (Independence of ordinary courts)
, C‑192/18, EU:C:2019:924, paragraphs 101 and 103
and the case-law cited; of
20 April 2021,
Repubblika
, C‑896/19, EU:C:2021:311, paragraphs 36 and 37
; 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 191 and 192
).
221
To ensure that bodies that may be called upon to rule on questions concerning the application or interpretation of EU law are in a position to ensure the effective judicial protection required under the second subparagraph of Article 19(1) TEU, maintaining their independence is essential, as confirmed by the second paragraph of Article 47 of the Charter, which refers to access to an ‘independent’ tribunal as one of the requirements linked to the fundamental right to an effective remedy (judgments of
2 March 2021,
A.B. and Others (Appointment of judges to the Supreme Court – Actions)
, C‑824/18, EU:C:2021:153, paragraph 115
and the case-law cited, 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, paragraph 194
).
222
That requirement that courts be independent, which is inherent in the task of adjudication, forms part of the essence of the right to effective judicial protection and the fundamental right to a fair trial, which is of cardinal importance as a guarantee that all the rights which individuals derive from EU law will be protected and that the values common to the Member States set out in Article 2 TEU, in particular the value of the rule of law, will be safeguarded (judgment of
2 March 2021,
A.B. and Others (Appointment of judges to the Supreme Court – Actions)
, C‑824/18, EU:C:2021:153, paragraph 116
and the case-law cited).
223
Similarly, as follows inter alia from recital 3 of Decision 2006/928 and from the benchmarks referred to in points 1 to 3 of the annex to that decision, the existence of an impartial, independent and effective judicial system is of particular importance in the fight against corruption, in particular high-level corruption.
224
The requirement that courts be independent, which stems from the second subparagraph of Article 19(1) TEU, has two aspects to it. The first aspect, which is external in nature, requires that the court concerned exercise its functions wholly autonomously, without being subject to any hierarchical constraint or subordinated to any other body and without taking orders or instructions from any source whatsoever, thus being protected against external interventions or pressure liable to impair the independent judgment of its members and to influence their decisions. The second aspect, which is internal in nature, is linked to impartiality and seeks to ensure that an equal distance is maintained from the parties to the proceedings and their respective interests with regard to the subject matter of those proceedings. That aspect requires objectivity and the absence of any interest in the outcome of the proceedings apart from the strict application of the rule of law (see, to that effect, judgment of
19 November 2019,
A. K. and Others (Independence of the Disciplinary Chamber of the Supreme Court)
, C‑585/18, C‑624/18 and C‑625/18, EU:C:2019:982, paragraphs 121 and 122
and the case-law cited).
225
Those guarantees of independence and impartiality required under EU law presuppose rules that are such as to dispel any reasonable doubt, in the minds of individuals, as to the imperviousness of the body in question to external factors and its neutrality with respect to the interests before it (see, to that effect, judgments of
19 September 2006,
Wilson
, C‑506/04, EU:C:2006:587, paragraph 53
and the case-law cited; 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 196
; and of
15 July 2021,
Commission v Poland (Disciplinary regime for judges)
, C‑791/19, EU:C:2021:596, paragraph 59
and the case-law cited).
226
In that regard, it is necessary that judges be protected from external intervention or pressure liable to jeopardise their independence. The rules applicable to the status of judges and to the exercise by them of their duties must, in particular, be such as to preclude not only any direct influence, in the form of instructions, but also types of influence which are more indirect and liable to have an effect on the decisions of the judges concerned, and thus be such as to prevent those judges not being seen to be independent or impartial with the consequence of prejudicing the trust which justice in a democratic society governed by the rule of law must inspire in subjects of the law (see, to that effect, judgment of
2 March 2021,
A.B. and Others (Appointment of judges to the Supreme Court – Actions)
, C‑824/18, EU:C:2021:153, paragraphs 119 and 139
and the case-law cited).
227
As regards specifically the rules governing the disciplinary regime, the requirement of independence means that, in accordance with settled case-law, that regime must provide the necessary guarantees in order to prevent any risk of its being used as a system of political control of the content of judicial decisions. To that end, it appears essential that the fact that a judicial decision contains a possible error in the interpretation and application of national and EU law, or in the assessment of the facts and the appraisal of the evidence, cannot in itself trigger the disciplinary liability of the judge concerned (see, to that effect, 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, paragraphs 198 and 234
and the case-law cited, and of
15 July 2021,
Commission v Poland (Disciplinary regime for judges)
, C‑791/19, EU:C:2021:596, paragraphs 134 and 138
). The fact that national judges are not exposed to disciplinary proceedings or measures for having exercised the discretion to make a reference for a preliminary ruling to the Court under Article 267 TFEU, which is exclusively within their jurisdiction, also constitutes a guarantee that is essential to their independence (see, to that effect, judgments of
5 July 2016,
Ognyanov
, C‑614/14, EU:C:2016:514, paragraphs 17 and 25
; of
26 March 2020,
Miasto Łowicz and Prokurator Generalny
, C‑558/18 and C‑563/18, EU:C:2020:234, paragraph 59
; and of
23 November 2021,
IS (Illegality of the order for reference)
, C‑564/19, EU:C:2021:949, paragraph 91
).
228
In addition, in accordance with the principle of the separation of powers which characterises the operation of the rule of law, the independence of the judiciary must in particular be ensured in relation to the legislature and the executive (judgments of
19 November 2019,
A. K. and Others (Independence of the Disciplinary Chamber of the Supreme Court)
, C‑585/18, C‑624/18 and C‑625/18, EU:C:2019:982, paragraph 124
and the case-law cited, and of
2 March 2021,
A.B. and Others (Appointment of judges to the Supreme Court – Actions)
, C‑824/18, EU:C:2021:153, paragraph 118
).
229
Although neither Article 2 TEU nor the second subparagraph of Article 19(1) TEU, nor any other provision of EU law, requires Member States to adopt a particular constitutional model governing the relationship and interaction between the various branches of the State, in particular as regards the definition and delimitation of their competences, Member States must nonetheless comply, inter alia, with the requirements of judicial independence stemming from those provisions of EU law (see, by reference to the case-law of the European Court of Human Rights on Article 6 ECHR, judgment of
19 November 2019,
A. K. and Others (Independence of the Disciplinary Chamber of the Supreme Court)
, C‑585/18, C‑624/18 and C‑625/18, EU:C:2019:982, paragraph 130
).
230
In those circumstances, Article 2 TEU, the second subparagraph of Article 19(1) TEU and Decision 2006/928 do not preclude national rules or a national practice under which the decisions of the constitutional court are binding on the ordinary courts, provided that the national law guarantees the independence of that constitutional court in relation, in particular, to the legislature and the executive, as required by those provisions. However, if the national law does not guarantee such independence, those provisions of EU law preclude such national rules or such a national practice since such a constitutional court is not in a position to ensure the effective judicial protection required by the second subparagraph of Article 19(1) TEU.
231
In the present case, the questions raised by the referring courts in the light of the requirement of judicial independence arising from those provisions of EU law concern, first, a series of aspects related to the status, composition and functioning of the Curtea Constituțională (Constitutional Court) which delivered the decisions at issue in the main proceedings. More specifically, those courts observe that, under the Romanian Constitution, the Curtea Constituțională (Constitutional Court) is not part of the judicial system, that its members are appointed by bodies within the legislature and the executive which are also empowered to refer matters to it, or even that it exceeded its powers and made an arbitrary interpretation of the relevant national legislation.
232
As for the fact that, under the Romanian Constitution, the Curtea Constituțională (Constitutional Court) is not part of the judicial system, it has been stated in paragraph 229 above that EU law does not require Member States to adopt a particular constitutional model governing the relationship and interaction between the various branches of the State, in particular as regards the definition and delimitation of their respective competences. In that regard, it must be clarified that EU law does not preclude the establishment of a constitutional court the decisions of which are binding on the ordinary courts, provided that that court complies with the requirements of independence referred to in paragraphs 224 to 230 above. There is nothing in the requests for a preliminary ruling to suggest that the Curtea Constituțională (Constitutional Court), which has inter alia the power to review the constitutionality of laws and ordinances and to rule on legal conflicts of a constitutional nature between the public authorities, pursuant to Article 146(d) and (e) of the Romanian Constitution, does not satisfy those requirements.
233
With regard to the circumstances in which judges of the Curtea Constituțională (Constitutional Court) are appointed, it is clear from the case-law of the Court of Justice that the mere fact that the judges concerned are appointed by the legislature and the executive, as is the case with the judges of the Curtea Constituțională (Constitutional Court) pursuant to Article 142(3) of the Romanian Constitution, does not give rise to a relationship of subordination of those judges to the legislature or the executive or to doubts as to their impartiality, if, once appointed, they are free from influence or pressure when carrying out their role (see, by analogy, judgment of
19 November 2019,
A. K. and Others (Independence of the Disciplinary Chamber of the Supreme Court)
, C‑585/18, C‑624/18 and C‑625/18, EU:C:2019:982, paragraph 133
and the case-law cited).
234
Whilst it may, indeed, prove necessary to ensure that the substantive conditions and procedural rules governing the adoption of those appointment decisions are such that they cannot give rise to reasonable doubts, in the minds of individuals, as to the imperviousness of the judges concerned to external factors and as to their neutrality with respect to the interests before them, once the persons concerned are appointed, and whilst it is important, inter alia, in that perspective, that those conditions and procedural rules are drafted in a way which meets the requirements set out in paragraph 226 of this judgment (judgment of
2 March 2021,
A.B. and Others (Appointment of judges to the Supreme Court – Actions)
, C‑824/18, EU:C:2021:153, paragraph 123
and the case-law cited), there is nothing in the information contained in the requests for a preliminary ruling to indicate that the circumstances in which the appointments of the judges of the Curtea Constituțională (Constitutional Court) were made, that is to say the judges who delivered the decisions at issue in the main proceedings, are contrary to those requirements.
235
In addition, it must be noted that, according to that same information, Article 142(2) of the Romanian Constitution provides that the judges of the Curtea Constituțională (Constitutional Court) are to be ‘appointed for a term of office of nine years, which may not be extended or renewed’, and that Article 145 of the Romanian Constitution states that those judges are to be ‘independent in the exercise of their office and shall be irremovable throughout that term of office’. Furthermore, Article 143 of that constitution specifies the conditions for appointment of the judges of the Curtea Constituțională (Constitutional Court) and requires, in that regard, that they 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’, whilst Article 144 of the Constitution lays down the principle that the office of judge of the Curtea Constituțională (Constitutional Court) is to be incompatible ‘with any other public or private office, with the exception of teaching duties in higher legal education’.
236
It must be added, in the present case, that the fact that matters can be referred to the Curtea Constituțională (Constitutional Court) by bodies within the executive and the legislature is connected to the nature and the function of a court established to rule on disputes of a constitutional nature and cannot, in and of itself, constitute a factor capable of calling into question its independence in relation to the executive and the legislature.
237
As regards the question whether the Curtea Constituțională (Constitutional Court) failed to act independently and impartially in the cases that led to the decisions at issue in the main proceedings, the mere fact relied on by the referring courts that the Curtea Constituțională (Constitutional Court) exceeded its powers at the expense of the Romanian judiciary and provided an arbitrary interpretation of the relevant national legislation, assuming it were established, cannot establish that the Curtea Constituțională (Constitutional Court) does not meet the requirements of independence and impartiality referred to in paragraphs 224 to 230 above. The requests for a preliminary ruling do not contain any detailed information from which it is apparent that those decisions were made in a context giving rise to a reasonable doubt as to the complete compliance of the Curtea Constituțională (Constitutional Court) with those requirements.
238
As far as concerns, second, the disciplinary liability that judges of the ordinary courts may incur, under the national legislation at issue, if they fail to comply with the decisions of the Curtea Constituțională (Constitutional Court), it is true that safeguarding the independence of the courts cannot, in particular, have the effect of totally excluding the possibility that the disciplinary liability of a judge may, in certain very exceptional cases, be triggered as a result of judicial decisions adopted by that judge. Such a requirement of independence is clearly not intended to support any serious and totally inexcusable forms of conduct on the part of judges, which would consist, for example, in violating deliberately and in bad faith, or as a result of particularly serious and gross negligence, the national and EU law with which they are supposed to ensure compliance, or acting arbitrarily or denying justice when they are called upon, as guardians of the duty of adjudicating, to rule in disputes which are brought before them by individuals (judgment of
15 July 2021,
Commission v Poland (Disciplinary regime for judges)
, C‑791/19, EU:C:2021:596, paragraph 137
).
239
However, it appears essential, in order to preserve the independence of the courts and, in so doing, to prevent the disciplinary regime from being diverted from its legitimate purposes and used to exert political control over judicial decisions or pressure on judges, that the fact that a judicial decision contains a possible error in the interpretation and application of national and EU law, or in the assessment of the facts and the appraisal of the evidence, cannot in itself trigger the disciplinary liability of the judge concerned (judgment of
15 July 2021,
Commission v Poland (Disciplinary regime for judges)
, C‑791/19, EU:C:2021:596, paragraph 138
and the case-law cited).
240
Consequently, it is important that the triggering of the disciplinary liability of a judge as a result of a judicial decision should be limited to entirely exceptional cases, such as those referred to in paragraph 238 above, and be governed, in that regard, by objective and verifiable criteria, arising from requirements relating to the sound administration of justice, and also by guarantees designed to avoid any risk of external pressure on the content of judicial decisions and thus helping to dispel, in the minds of individuals, any reasonable doubts as to the imperviousness of the judges concerned and their neutrality with respect to the interests before them (judgment of
15 July 2021,
Commission v Poland (Disciplinary regime for judges)
, C‑791/19, EU:C:2021:596, paragraph 139
and the case-law cited).
241
In the present case, there is nothing in the information contained in the requests for a preliminary ruling to indicate that the disciplinary liability of the national judges of the ordinary courts as a result of non-compliance with the decisions of the Curtea Constituțională (Constitutional Court), as provided for in Article 99(ș) of Law No 303/2004, the wording of which does not include any other condition, is limited to the entirely exceptional cases mentioned in paragraph 238 above, contrary to the case-law set out in paragraphs 239 and 240 above.
242
It follows that Article 2 TEU, the second subparagraph of Article 19(1) TEU and Decision 2006/928 are to be interpreted as not precluding national rules or a national practice under which the decisions of the constitutional court are binding on the ordinary courts, provided that the national law guarantees the independence of that constitutional court in relation, in particular, to the legislature and the executive, as required by those provisions. However, those provisions of the EU Treaty and that decision are to be interpreted as precluding national rules under which any failure to comply with the decisions of the national constitutional court by national judges of the ordinary courts can trigger their disciplinary liability.
243
In those circumstances, and as regards cases in which the national rules or the national practice at issue in the main proceedings constitute an implementation of EU law within the meaning of Article 51(1) of the Charter, a separate examination of Article 47 of the Charter, which could only substantiate the finding already set out in the preceding paragraph, appears unnecessary for the purpose of answering the questions put by the referring courts and for the outcome of the proceedings brought before them.
– The primacy of EU law
244
The referring courts observe that the case-law of the Curtea Constituțională (Constitutional Court) established in the decisions at issue in the main proceedings, in relation to which they have doubts as to the compatibility of that case-law with EU law, is, in accordance with Article 147(4) of the Romanian Constitution, binding and must be observed by the national courts, failing which a disciplinary penalty may be imposed on their members pursuant to Article 99(ș) of Law No 303/2004. In those circumstances, the referring courts are seeking to ascertain whether the principle of primacy of EU law precludes such national rules or such a national practice and allows a national court to disapply case-law of that kind, without that court’s members bearing a risk of incurring a disciplinary penalty.
245
In that regard, it must be recalled that, in its settled case-law on the EEC Treaty, the Court has previously held that, unlike standard international treaties, the Community Treaties established a new legal order, which is integrated into the legal systems of the Member States on the entry into force of the Treaties and which are binding on their courts. That new legal order, for the benefit of which the Member States limited their sovereign rights in the fields defined by the Treaties and the subjects of which comprise not only the Member States but also their nationals, has its own institutions (see, to that effect, judgments of
5 February 1963,
van Gend & Loos
, 26/62, EU:C:1963:1, p. 23
, and of
15 July 1964,
Costa
, 6/64, EU:C:1964:66
, pp. 593 and 594).
246
Thus, in the judgment of
15 July 1964,
Costa
(6/64, EU:C:1964:66
, pp. 593 to 594), the Court laid down the principle of the primacy of Community law, which is understood to enshrine the precedence of Community law over the law of the Member States. In that regard, it found that the establishment by the EEC Treaty of the Community’s own legal system, accepted by the Member States on a basis of reciprocity, means, as a corollary, that they cannot accord precedence to a unilateral and subsequent measure over that legal system or rely on rules of national law of any kind against the law stemming from the EEC Treaty, without depriving the latter law of its character as Community law and without the legal basis of the Community itself being called into question. In addition, the executive force of Community law cannot vary from one Member State to another in deference to subsequent domestic laws, without jeopardising the attainment of the objectives of the EEC Treaty or giving rise to discrimination on grounds of nationality prohibited by that treaty.
247
In paragraph 21 of its Opinion 1/91 (First Opinion of the EEA Agreement) of
14 December 1991 (EU:C:1991:490
), the Court thus found that the EEC Treaty, albeit concluded in the form of an international agreement, nonetheless constitutes the constitutional charter of a Community based on the rule of law, and that the essential characteristics of the Community legal order thus established are in particular its primacy over the law of the Member States and the direct effect of a whole series of provisions which are applicable to their nationals and to the Member States themselves.
248
Those essential characteristics of the EU legal order and the importance of compliance with that legal order were, moreover, confirmed by the ratification, without reservation, of the Treaties amending the EEC Treaty and, in particular, the Treaty of Lisbon. When that treaty was adopted, the conference of representatives of the governments of the Member States was keen to state expressly, in its Declaration No 17 concerning primacy, annexed to the Final Act of the Intergovernmental Conference which adopted the Treaty of Lisbon (OJ 2012 C 326, p. 346), that, in accordance with settled case-law of the Court, the Treaties and the law adopted by the Union on the basis of the Treaties have primacy over the law of the Member States, under the conditions laid down by that case-law.
249
It must be added that Article 4(2) TEU provides that the Union is to respect the equality of Member States before the Treaties. However, the Union can respect such equality only if the Member States are unable, under the principle of the primacy of EU law, to rely on, as against the EU legal order, a unilateral measure, whatever its nature.
250
Following the entry into force of the Treaty of Lisbon, the Court has consistently confirmed the earlier case-law on the principle of the primacy of EU law, a principle which requires all Member State bodies to give full effect to the various EU provisions, and the law of the Member States may not undermine the effect accorded to those various provisions in the territory of those States (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 244
and the case-law cited; 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 156
; and of
23 November 2021,
IS (Illegality of the order for reference)
, C‑564/19, EU:C:2021:949, paragraph 78
and the case-law cited).
251
Thus, by virtue of the principle of the primacy of EU law, a Member State’s reliance on rules of national law, even of a constitutional nature, cannot be allowed to undermine the unity and effectiveness of EU law. In accordance with settled case-law, the effects of the principle of the primacy of EU law are binding on all the bodies of a Member State, without, inter alia, provisions of domestic law, including constitutional provisions, being able to prevent that (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 245
and the case-law cited; 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 157
; and of
23 November 2021,
IS (Illegality of the order for reference)
, C‑564/19, EU:C:2021:949, paragraph 79
and the case-law cited).
252
In that regard, it must, inter alia, be recalled that, in accordance with the principle of primacy, the national court called upon within the exercise of its jurisdiction to apply provisions of EU law is under a duty, where it is unable to interpret national law in compliance with the requirements of EU law, to give full effect to the requirements of EU law in the dispute brought before it by disapplying, as required, on its own authority, any national rule or practice, even if adopted subsequently, that is contrary to a provision of EU law with direct effect, without it having to request or await the prior setting aside of that national rule or practice by legislative or other constitutional means (see, to that effect, 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, paragraphs 247 and 248
, and of
23 November 2021,
IS (Illegality of the order for reference)
, C‑564/19, EU:C:2021:949, paragraph 80
).
253
In addition, as regards the provisions of EU law referred to in the present requests for a preliminary ruling, it must be recalled that it follows from the Court’s case-law that the second subparagraph of Article 19(1) TEU, Article 325(1) TFEU and the benchmarks set out in the annex to Decision 2006/928 are formulated in clear and precise terms and are not subject to any conditions, and they therefore have direct effect (see, to that effect, judgments of
5 December 2017,
M.A.S. and M.B
., C‑42/17, EU:C:2017:936, paragraphs 38 and 39
, 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 250
).
254
In that context, it must be made clear that, in accordance with Article 19 TEU, whilst it is for the national courts and tribunals and the Court to ensure the full application of EU law in all the Member States and to ensure effective judicial protection of the rights of individuals under that law, the Court has exclusive jurisdiction to give the definitive interpretation of that law (see, to that effect, judgment of
2 September 2021,
Republic of Moldova
, C‑741/19, EU:C:2021:655, paragraph 45
). In addition, in the exercise of that jurisdiction, it is ultimately for the Court to clarify the scope of the principle of the primacy of EU law in the light of the relevant provisions of that law; that scope cannot turn on the interpretation of provisions of national law or on the interpretation of provisions of EU law by a national court which is at odds with that of the Court. To that end, the preliminary-ruling procedure provided for in Article 267 TFEU, which is the keystone of the judicial system established by the Treaties, sets up a dialogue between one court and another, specifically between the Court of Justice and the courts of the Member States, having the object of securing the uniform interpretation of EU law, thereby serving to ensure its consistency, its full effect and its autonomy as well as, ultimately, the particular nature of the law established by the Treaties (judgments of
6 March 2018,
Achmea
, C‑284/16, EU:C:2018:158, paragraph 37
and the case-law cited, and of
6 October 2021,
Consorzio Italian Management and Catania Multiservizi
, C‑561/19, EU:C:2021:799, paragraph 27
).
255
In the present case, the referring courts state that, under the Romanian Constitution, they are bound by the case-law established in the decisions of the Curtea Constituțională (Constitutional Court) at issue in the main proceedings and cannot disapply that case-law, otherwise their members risk being subject to a disciplinary procedure or penalty, even where they are of the view, in the light of a judgment given as a preliminary ruling by the Court of Justice, that the case-law is contrary to EU law.
256
In that regard, it must be recalled that a judgment in which the Court of Justice gives a preliminary ruling is binding on the national court, as regards the interpretation of the provisions of EU law in question, for the purposes of the decision to be given in the main proceedings (see, to that effect, judgment of
5 April 2016,
PFE
, C‑689/13, EU:C:2016:199, paragraph 38
and the case-law cited).
257
Accordingly, the national court which exercised the discretion or complied with its obligation to make a reference to the Court for a preliminary ruling under Article 267 TFEU cannot be prevented from forthwith applying EU law in accordance with the decision or the case-law of the Court, since otherwise the effectiveness of that provision would be impaired (see, to that effect, judgments of
9 March 1978,
Simmenthal
, 106/77, EU:C:1978:49, paragraph 20
, and of
5 April 2016,
PFE
, C‑689/13, EU:C:2016:199, paragraph 39
). It must be added that the power to do everything necessary, when applying EU law, to disregard national rules or a national practice which might prevent EU rules from having full force and effect is an integral part of the role of a court of the European Union which falls to the national court responsible for applying, within its jurisdiction, the EU rules, and therefore the exercise of that power constitutes a guarantee that is essential to judicial independence as provided for in the second subparagraph of Article 19(1) TEU (see, to that effect, judgments of
26 March 2020,
Miasto Łowicz and Prokurator Generalny
, C‑558/18 and C‑563/18, EU:C:2020:234, paragraph 59
, and of
23 November 2021,
IS (Illegality of the order for reference)
, C‑564/19, EU:C:2021:949, paragraph 91
).
258
Thus, any national rules or practice which might impair the effectiveness of EU law by withholding from the national court having jurisdiction to apply such law the power to do everything necessary at the moment of its application to disregard a national provision or practice which might prevent EU rules from having full force and effect are incompatible with the requirements which are the very essence of EU law (see, to that effect, judgments of
22 June 2010,
Melki and Abdeli
, C‑188/10 and C‑189/10, EU:C:2010:363, paragraph 44
and the case-law cited; of
5 April 2016,
PFE
, C‑689/13, EU:C:2016:199, paragraph 41
; and of
4 December 2018,
Minister for Justice and Equality and Commissioner of An Garda Síochána
, C‑378/17, EU:C:2018:979, paragraph 36
).
259
National rules or a national practice under which the decisions of the national constitutional court are binding on the ordinary courts, even where the latter are of the view, in the light of a judgment given on a request for a preliminary ruling by the Court of Justice, that the case-law established in those constitutional decisions is contrary to EU law, can prevent those courts from ensuring that full effect is given to the requirements of EU law; that preventive effect may be heightened by the fact that the national law classifies any non-compliance with such constitutional case-law as a disciplinary offence.
260
In that context, it must be observed that Article 267 TFEU precludes any national rules or practice that can prevent national courts, as the case may be, from exercising the discretion or complying with the obligation, laid down in Article 267 TFEU, to make a reference for a preliminary ruling to the Court (see, to that effect, judgments of
5 April 2016,
PFE
, C‑689/13, EU:C:2016:199, paragraphs 32 to 34
and the case-law cited; of
19 November 2019,
A. K. and Others (Independence of the Disciplinary Chamber of the Supreme Court)
, C‑585/18, C‑624/18 and C‑625/18, EU:C:2019:982, paragraph 103
; and of
23 November 2021,
IS (Illegality of the order for reference)
, C‑564/19, EU:C:2021:949, paragraph 93
). Moreover, in accordance with the case-law cited in paragraph 227 of this judgment, for national judges, not being exposed to disciplinary proceedings or penalties for having exercised the discretion to make a reference for a preliminary ruling to the Court under Article 267 TFEU, which is exclusively within their jurisdiction, constitutes a guarantee that is essential to their independence. Similarly, if, following the answer given by the Court, a national judge of an ordinary court were prompted to take the view that the case-law of the national constitutional court is contrary to EU law, that national judge’s disapplication of that case-law, in accordance with the principle of the primacy of EU law, cannot in any way trigger his or her disciplinary liability.
261
In the present case, it is apparent from the documents available to the Court that disciplinary proceedings were initiated pursuant to Article 99(ș) of Law No 303/2004 against certain judges of the referring courts after they submitted their request for a preliminary ruling. In addition, even if the answer given by the Court were to prompt those courts to disapply the case-law of the Curtea Constituțională (Constitutional Court) established in the decisions at issue in the main proceedings, it does not appear to be ruled out, in the light of the case-law of the Curtea Constituțională (Constitutional Court) referred to in paragraph 58 of this judgment, that the judges making up those courts may risk being subject to disciplinary penalties.
262
It follows that the principle of the primacy of EU law is to be interpreted as precluding national rules or a national practice under which national 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 of Justice, that that case-law is contrary to the second subparagraph of Article 19(1) TEU, Article 325(1) TFEU or Decision 2006/928.
263
In the light of all the foregoing considerations, 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 must be answered to the effect that
-
Article 2 TEU, the second subparagraph of Article 19(1) TEU and Decision 2006/928 are to be interpreted as not precluding national rules or a national practice under which the decisions of the national constitutional court are binding on the ordinary courts, provided that the national law guarantees the independence of that constitutional court in relation, in particular, to the legislature and the executive, as required by those provisions. However, those provisions of the EU Treaty and that decision are to be interpreted as precluding national rules under which any failure to comply with the decisions of the national constitutional court by national judges of the ordinary courts can trigger their disciplinary liability;
-
the principle of primacy of EU law is to be interpreted as precluding national rules or a national practice under which national ordinary courts are bound by 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 of Justice, that that case-law is contrary to the second subparagraph of Article 19(1) TEU, Article 325(1) TFEU or Decision 2006/928.