Cause and Effect in European Politics and Law

The Fight for the Rule of Law Moves against Its Main Guardian: the Commission

Adelina Marini, LL.M., March 14, 2024

On 15 September 2023, the Commission put a legal end to the Cooperation and Verification Mechanism (CVM) by repealing Decisions 2006/928/EC (Romania) and 2006/929/EC (Bulgaria). This is a very regrettable development at a time when the rule of law erosion and the illiberalism creep have been on the rise. Moreover, it is regrettable because the conclusions of the Commission that Romania and Bulgaria have fulfilled the benchmarks1 are far from convincing.

Even more so against the backdrop of the solid case law the Court of Justice of the EU (the Court, CJEU) has built in the past few years, showing what a powerful instrument the CVM is in the hands of local Romanian actors in their struggle to protect the rule of law and, more specifically, the judiciary from political capture. That case law also showed that the Commission was passive, to put it mildly, and failed to act in cases of non-compliance with the CVM and non-implementation of its recommendations by way of triggering infringement proceedings or even the rule of law conditionality regulation2.

A clear sign of how unconvincing the Commission’s findings are is a lawsuit against the institution in the General Court. It is an action for annulment of Commission Decision (EU) 2023/1786, repealing Decision 2006/928/EC (the Romanian CVM Decision), brought by a professional organisation of Romanian prosecutors. It is the latest3 lawsuit against EU institutions’ actions in the area of rule of law filed by professional associations.

In light of these new developments in the area of the CVM, the objective of this article is to, first, present the action for annulment and its main challenges, followed by an analysis of the two paths the Court can take in its approach toward the legality of the Commission’s actions, procedural and substantive. The article will conclude with what the formal closure of the CVM means for the rule of law in Romania. Even though the content of Decision 2023/1786 to repeal Decision 2006/928/EC on Romania is important, as is the essence of the Commission’s arguments, they will be considered in this article only briefly. A more detailed document analysis should be the subject of separate research, the objective of which is to show whether the Commission’s findings reflect the reality on the ground in comparison with similar documents of other international institutions.

We will see you in Court

On 28 November 2023, the Association ‘Initiative for Justice’ (AIJ), of Romanian prosecutors, brought an action for annulment, pursuant to Article 263(4) TFEU, in the General Court. The Applicant claims that the Court should annul Commission Decision (EU) 2023/1786 of 15 September 2023, repealing Decision 2006/928/EC establishing a mechanism for cooperation and verification of progress in Romania to address specific benchmarks in the areas of judicial reform and the fight against corruption.

The arguments of the Applicant are that the Commission made manifest errors of assessment and errors of law when it claimed that the benchmarks had been fulfilled, while there is compelling evidence to the contrary. Reports by other organisations and institutions, including Commission’s own CVM reports, show that the benchmarks are far from met, especially those related to the effectiveness of the judiciary and the fight against high-level corruption (Benchmarks 1 and 3). Crucially, it is hard to argue, on the basis of the available evidence, that the implementation is of durable and irreversible character.

The AIJ also claims that the Commission failed to state reasons, which is its duty under Article 296 TFEU, Article 41 of the Charter of Fundamental Rights of the EU, and the general principles of EU law. In other words, the Commission failed to explain what its conclusions are based upon (of which more in detail below). Lastly, the Applicant claims the Commission infringed Articles 2 and 49 TEU and the procedural requirements to obtain the approval of the Parliament and the Council not only before repealing the Decisions but before it ceased to apply the CVM. To recall briefly, the Commission ceased to report, under the CVM, on Bulgaria in 2019 and on Romania in 2022.

The Applicant’s argument is, essentially, that the CVM was the product of a political and legal compromise to allow Romania into the EU without having fulfilled the requirements of Article 49 TEU, which, for its part, requires full compliance with Article 2 TEU as a pre-condition for accession. It also argues that the establishment and the termination of the CVM cannot be the subject of a unilateral decision by the Commission.

Part of this argument is that the Commission stopped monitoring without having obtained the observations of the Council and the Parliament. These arguments are contrary to the Commission’s claims that it only needed to inform the two institutions which, however, does not address the question why it stopped monitoring right after it asked the two institutions for their opinion.

The application, which I had the privilege to see and am also humbled to admit used an article of mine as a reference, is brought by an association of Romanian prosecutors which regularly assisted the Commission in its reporting under the CVM. Before addressing the main issues that it raises, there is one significant challenge it faces – admissibility. Therefore, the issue of locus standi, i.e. the legal standing of the AIJ will be considered first and thereafter the procedural and substantive aspects of the Commission Decision to repeal the CVM.

Locus Standi

The access to the Court of Justice of non-privileged applicants, meaning not EU institutions of various kinds or Member States, to challenge Union institutional acts is an old wound in the history of CJEU jurisprudence, since the Plaumann criteria were formulated in 1963 by the Court of Justice on the basis of what is now Article 263(4) TFEU. According to these criteria, an applicant must either be addressed directly in an act by a Union institution, or it must be of direct and individual concern to the applicant. There is also another procedural option for challenging 'regulatory acts', when the condition of individual concern does not apply, but it is necessary the challenged act to not require implementing measures that would, otherwise, allow a natural or legal person to challenge those in a national court through the preliminary reference procedure (Article 267 TFEU).

Decision 2023/1786 is not addressed to anyone in particular and can therefore be considered a regulatory act of general application, which does not require implementing measures, pursuant to CJEU case-law. The Applicant, together with two other associations (one of which formed the backbone of the CVM-case law), was a major partner of the Commission during its operations in Romania. It is important to emphasise that the Commission does not have the powers and the capacity to conduct investigations of its own on the ground and relies on local actors, such as the Applicant. This is very much the case with the Annual Rule of Law Reports too.

Crucially, by not having to take a critical stance itself, but being very often the only source of information for the Commission, the Applicant felt shielded from disciplinary and other measures against them. This claim is supported by the attempts of the Judicial Inspectorate of Romania to block the participation of the associations of judges and prosecutions in the CVM consultations. This went in parallel with proposals by the Inspectorate to suspend from office the two presidents of these professional organisations – Bogdan Pirlog, the president of the AIJ, was proposed for suspension three times and Dragos Calin, the co-president of the Asociaţia ‘Forumul Judecătorilor din România’ (AFJR), once. These proposals were ultimately rejected by the Superior Council of Magistracy but they still tell a story of enormous pressure exercised on these associations and their members.

In addition, Bogdan Pirlog was the subject of multiple disciplinary proceedings, even though those were ex officio. Dragos Calin, whose association is a major author of many of the CVM-related preliminary ruling referrals to the CJEU, was also subject of various forms of harassment. Another indicator of how grave the situation is for members of the judiciary who dared to resist capture attempts is that there were fears that if members of the associations talked openly about their situation that could expose them to immediate retaliatory measures by the Inspectorate.

Therefore, the AIJ considers itself individually concerned by the contested Decision 2023/1786 – they are no longer shielded from retaliatory measures against their courage to reveal the true situation of the rule of law in Romania. In addition, by way of its essential role in compiling the CVM reports, the AIJ developed a legitimate interest in the genuine fulfilment of the benchmarks. By repealing the CVM Decision, the Commission destroyed those expectations.

The argument that the AIJ will be directly exposed to retaliatory actions by those it challenges openly serves also to show that the repeal of the CVM is of direct concern to it and its members. Even with the CVM still in force, the bulk of CVM-case law and also the case law from Poland show the many attempts individual judges or prosecutors to be discouraged from a dialogue with the Court of Justice under threat of disciplinary measures. It is indeed to be expected that without the direct effect of the CVM and the much stronger role it gives to the Commission, judges and prosecutors who challenge the capture attempts are to face significant risks.

The rule of law crisis in the EU, as it is depicted in the academic literature, has been constantly deteriorating, and has forced the Court to revisit some of its case law on many related issues, but the locus standi of associations of judges or prosecutors is not one of them. However, the Court has some rich experience in other fields that could be applied mutatis mutandis in the area of rule of law and, especially, with regard to the CVM. The Court relaxed the locus standi tests most tangibly in the area of competition law, where associations of trade representatives were allowed legal standing.

Probably one of the most illustrative examples is that of AITEC, where the Court of First Instance (as the General Court was called at the time) granted both individual and direct concern to the Associazione Italiana Tecnico Economica del Cemento by arguing that, first, AITEC represents collectively individual interests that were affected by the contested Commission decision. Three of its members were directly affected by the anti-competitive effects of the State aid provided by Greece to some of its largest cement producers. By bringing a collective action, AITEC saved the need for individual action by its affected members (paragraph 60).

Second, the CFI took into account the fact that by representing the collective interest of its members, AITEC acted in line with its statute, according to which it is ‘to protect the technical and economic interests of the trade as regards the economic development of the sector’ (paragraph 61). If applied to the current situation, AIJ should be granted direct and individual concern for the same reasons.

First, it represents the interests of its members who are directly affected by disciplinary measures on the part of the Judicial Inspectorate, which were significantly limited when the CVM was in force and the Commission was in power to undertake measures. With the CVM out of the way, the members of the AIJ would be exposed to unchecked behaviour on behalf of the Inspectorate. Ground for such an expectation can be found in the reasons the Commission provided for the closure of the CVM (below).

Second, AIJ acts in line with its statute, according to Article 4(1) of which AIJ is to protect the rule of law, ‘ensuring respect for the rights of prosecutors, their independence in the performance of their duties and functions, in accordance with the fundamental principles of the independence of the judiciary, in relation to other legal subjects, the promotion of freedom and dignity of the profession, the protection of the status of public prosecutors in the rule of law and the independence of the judiciary from the other powers of the State’.

In addition, in Extramet, the Court found that even though the contested act may be of a legislative nature, i.e. it concerns all traders, this does not prevent it to be of individual concern for some of them (paragraph 13) in 'certain circumstances' (paragraph 14). The AIJ is, similarly, a leading defender of the independence of the judiciary in Romania, where the attacks on individual members of the judiciary, inter alia by way of disciplinary measures but also media harassment, and the systemic character of the rule of law situation in Romania suggest that the AIJ is indeed in ‘exceptional circumstances’, which should be sufficient for it to claim individual concern.

In support of such reasoning is the valuable Opinion of Advocate General Jacobs in the UPA case, where the AG considered individual concern could be granted to applicants in situations where the contested measure ‘has or is liable to have, a substantial adverse effect on his interests’ (paragraphs 60 and 103). Mutatis mutandis, it can be claimed that the interests of the AIJ can be subjected to substantial adverse effect with the repealing of the CVM Decision because, as members of the Romanian judiciary claim in a collection of articles, the CVM reports ‘drastically limited leeway for politicians in Bucharest and curtailed their destructive momentum’. It could therefore be expected that once the CVM is no longer in force, the interests of the AIJ can be adversely affected by a substantial reverse of reform efforts or by ‘deform’ efforts, as Prof. Pech and Prof. Kochenov put it, and thus expose them to disciplinary measures4.

In the more general perspective of the rule of law in the EU and the already massive case law, it would be a natural next move by the Court to recognise that, unlike in other fields of law, in a rule of law context professional associations of judges and prosecutors hold a special position, which makes it hard to deny them locus standi. As a testament to this is the growing number of actions for annulment brought by professional organisations against decisions, including by the Council, in the area of rule of law (here and here).

This is a natural development since these organisations represent individuals who stand on the front lines when attempts are made of capturing the judiciary and of eroding the rule of law, and can be individually identified for disciplinary actions. In this sense, the very recent Opinion of Advocate General Collins, in another case brought by the Association of Judges' Forum (AFJR) (C-53/23), is very discouraging.

In that case, the AFJR challenged a Romanian law, which provides for corruption by judges and prosecutors to be investigated by specialised prosecutors instead of the National Anti-Corruption Directorate (DNA), but its legal standing was challenged by the Public Ministry. The AFJR relied on Articles 2 and 19(1) TEU and of the CVM Decision to claim a connection with EU law and the AG considers the questions referred by the Romanian court to be granted admissibility. As to the substance, AG Collins outlines the principles of equivalence and effectiveness as the backbone of the case at hand for the lack of EU law regulating the matter (point 30). Furthermore, the AG considers that, in the case at hand, only the principle of effectiveness was relevant.

He referred to the Court’s environmental law case-law, where, in certain situations, associations are granted locus standi to ask for judicial review of acts before national courts. Such situations are the existence of secondary EU law that allows such actions. In the environmental law field, such secondary law is the Aarhus Convention. Directive 2000/78/EC is another secondary legislation in the area of equality. However, AG Collins emphasised, that there is no secondary law that could be used to claim locus standi by associations of judges and prosecutors before national courts. Therefore, such associations must rely on national rules on legal standing (point 38).

In addition, he referred to the A.B. judgment to point out that, while that judgment allows legal standing for ‘unsuccessful candidates for judicial positions whose interests have been adversely affected’, this cannot be applied by analogy to associations (point 41). Discouraging as it may sound, this Opinion concerns locus standi for professional associations in a national context.

In a situation of documented attempts for capture of the national judiciary, it is a far stretch to claim that associations, whose members have been subjected to enormous pressure and to disciplinary measures, can rely on national rules for locus standi, especially if such rules are made precisely with the purpose to prevent such associations from being allowed judicial review. For them, direct actions remain a last resort. 

If the General Court were to decide to grant the AIJ admissibility, the action for annulment brings two types of challenge. First, it contests the legality of Decision 2023/1786 from a procedural point of view – did the Commission follow the law when deciding to unilaterally repeal Decision 2006/928/EC - and, second, it contests the act on its substance – did the Commission have sufficient grounds to decide that the CVM benchmarks have been met and Decision 2006/928/EC can be closed. The next section explores the procedural aspect.

The CVM: A passport for accession and a rule of law instrument

From a procedural perspective, it is important to recall why the CVM was established in the first place. As described in detail previously, the CVM was established because Bulgaria and Romania demonstrated persistent issues with the accountability and efficiency of their judiciaries and had low records in the fight against corruption (Recital 6 of Decision 2006/928/EC) and, in the case of Bulgaria, organised crime (Recital 6 of Decision 2006/929/EC). In other words, the two countries had not completed the building of rule of law. The CVM was supposed to help them achieve that. It was both a commitment by the Commission to the Member States, that it would oversee and assist in the process, and by the two countries, that they would, indeed, show they were ready for accession.

Most of all, the CVM was a compromise, made for the first time, to accept countries that were not ready but the (geo)political price to pay for a delay was too high. Therefore, as mentioned earlier, the CVM was both a passport for accession, by way of a post-accession conditionality mechanism, and a rule of law instrument of the strongest kind by way of being hard law with the Decisions and the benchmarks being legally binding, while the reports were to be taken duly into account (AFJR).

After years of failing to do its job to report ‘at least every six months’ (Article 2 of the CVM Decisions), the Commission finally decided to initiate a process of conclusion of this rule of law and post-accession chapter. It first asked the Council and the European Parliament for their positions, promising to take them in due account. The European Parliament responded, on Bulgaria, with severe criticism, demonstrating convincingly that the Commission’s assessment that Bulgaria had fulfilled the benchmarks were wrong. It recommended the Commission to continue to report on its progress, even though it showed openness to the idea the CVM to be replaced by the Annual Rule of Law Report (ARLR).

Subsequently, the European Parliament voted on an inter-institutional agreement, in the context of the establishment of the ARLR, in which it proposed to replace monitoring under the CVM with the ARLR. The proposal offered two conditions. The first was the Commission to incorporate the CVM benchmarks in its methodology for data collection (Point 5 of the Annex). The second was to conduct stakeholder consultations with civil society organisations, human rights institutions, professional organisations and international institutions (Point 6 of the Annex).

However, the proposed agreement is a little bit vague on repealing the CVM Decisions. It does indeed state clearly that the ARLR shall replace the CVM for Romania and Bulgaria but is uncertain as to when this should happen. The document says ‘at an appropriate time’. What does this mean and who will make the assessment that the time is indeed appropriate? Is it when the two Member States have fulfilled the benchmarks? But then the question is whether this should be discussed among the three institutions under the inter-institutional agreement, or at a time when the three institutions agree that the benchmarks are indeed fulfilled? If it is the latter, does this mean that the Parliament and the Council must give their approval before the Decisions are repealed?

The inter-institutional agreement was not accepted by the Council and the Commission. On the contrary, as mentioned earlier, the Council was unable to come up with a decision on the Commission proposal to close the CVM as several delegations objected. The fact that there is even a single Member State that opposes or has reservations to the closure of the CVM should be an important factor, since EU accession requires unanimity and it seems logical to conclude that any decisions related to accession, such as this post-accession conditionality mechanism, must be approved by all Member States as the main accession stakeholders, pursuant to Article 49 TEU.

After the Council failed to agree on a common position, the Commission sent, on 6 July 2023, an Information Note on the closing of the CVM in which it briefly recalls its arguments that Bulgaria and Romania have made the necessary steps to fulfil the benchmarks and to address the recommendations made in their last reports (2019 for Bulgaria, 2022 for Romania) and that this is sufficient to end the CVM. The Commission set 25 August 2023 as a deadline to submit observations.

This note was considered in the Ad Hoc Working Party on the Cooperation and Verification Mechanism for Bulgaria and Romania on 11 July 2023 but there is no public account of the outcome of that meeting. On the 24 July 2023, the Information Note ended up on the table of COREPER II. The permanent representatives approved a letter to the Commission in response to the note. The letter states that the Council takes note of the document but it also reveals that one delegation requested an extension of the deadline in order to be able to discuss the issue in the national parliament. Two more delegations supported that request. At this point of writing5, it is unclear whether this request was granted or, if it was not, on what grounds it was rejected. It is also unclear, at this point of writing, whether the three countries ever managed to put the issue to a debate in their national assemblies.

However, Austria, which used the CVM to block Romania’s Schengen accession, said in an email for this article that it would not intervene in the case and, the Netherlands, which also demanded for years a full implementation of the benchmarks before the CVM is lifted, said in an email response that the Dutch government would also not intervene in the case and that it did not oppose the formal closure of the CVM. Whether these are the delegations that asked for more time or not, remains unclear.

On 15 September 2023, the Commission announced its decision to repeal the CVM Decision. The Commission claims that it had taken duly into account the observations of the European Parliament, presented in the form of a letter from the President on 6 February 2023 and the Council letter of 26 July 2023. Instead of the requested letter by the President, euinside received a letter from 30 January 2023 by the chair of the Committee on Civil Liberties and Home Affairs (LIBE), Juan Fernando Lopez Aguilar (S&D, Spain), addressed to European Parliament President Roberta Metsola.

In that letter, he informs her that the LIBE Committee discussed the CVM report on Romania on 12 January 2023. During that discussion, most of the political groups expressed support for the closure of the CVM for Romania. The members of the Committee emphasised that it was important to ‘disconnect’ the CVM from accession to Schengen and, obviously, the formal closure of the CVM is seen as the only way to do it.

Without providing any details about the observations received and what it means that it had taken them duly into account, the Commission considers it sufficient that it had informed the Council and the European Parliament of its decision. In a Q&A sheet, which accompanies the press release about the Decision, the Commission quotes Articles 37 and 38 of the Act of Accession of Romania and Bulgaria, which serve as the legal basis for the CVM Decisions and which allow it to only inform the Council ‘in good time before revoking the safeguard measures’.

It still remains puzzling what it means to duly take into account any observations, especially when they come from the Member States who are the only stakeholders, enabled by the Treaties, to decide on EU accession. Article 49 TEU is very clear as to who holds the leading role in such decisions: “The applicant State shall address its application to the Council, which shall act unanimously after consulting the Commission and after receiving the consent of the European Parliament, which shall act by majority of its component members. The conditions of eligibility agreed upon by the European Council shall be taken into account”.

If Article 49 TEU gives all the power to the Council to decide which country is to become a member of the EU by only consulting the Commission, how then can a Commission decision to revoke a decision with conditions for accession be its sole responsibility, which requires it only to duly take into account the observations of the Council? Even though both the Act of Accession and Article 49 TEU are primary law, the Act of Accession is based on Article 49 TEU and therefore must be in conformity with it.

In such a situation, the best case scenario would have been if the Commission did seek to get the Council’s approval in order to legitimise its decision. A less good scenario would have been if the Commission had explained how exactly it had duly taken into account the reservations of some delegations in the Council, who insisted the Commission to continue its work under the CVM. The claims of the Commission that all remaining issues are now covered by the ARLR are not convincing for the reasons expressed in an earlier article on the matter.

To recall – the CVM is a hard law instrument. The Decision and the Annex to it, which contains the benchmarks, are legally binding on Romania (and Bulgaria). Romania and Bulgaria have an obligation to take into account the Commission’s reports and recommendations. The ARLR is a soft law instrument. There is no duty to comply with the reports or its recommendations. The CVM has direct effect, which means that it gives rights to individuals to go to Court if Romania and Bulgaria do not comply with it and there is already a solid line of CVM-cases. The ARLR does not have direct effect, making litigation impossible.

As an intermediate conclusion, first and foremost, the CVM was an enlargement instrument. Therefore, its closure, without getting the approval of all Member States, and replacing it with the soft-law ARLR, essentially, circumvents the accession commitments. It allows for Member States to be let in the EU through the back door.

What are the Commission’s conclusions based upon? (obligation to provide reasons)

The Decision of the Commission to repeal the CVM Decisions deserve a much deeper analysis of its conclusions in comparison to the CVM reports in the past, the ARL reports, and reports by other institutions and organisations. However, for the current purposes, it would suffice to only briefly recall the benchmarks in the CVM Decisions and how the Commission concluded they were met in its Information Note and the Recitals of Decision 2023/1786. Decision 2006/928/EC (the CVM Decision on Romania) contains four benchmarks in the Annex. In order to better understand the decision of the Commission to repeal the CVM Decision, it is important to recall what they are:

Benchmark 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 end penal procedure codes.

Benchmark 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.

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

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

It may seem, at first glance, that the benchmarks are a little vague as they do not provide for a very concrete measurement of the results to be achieved. However, there are a few key notions which need to be heeded. First, the word ‘ensure’. It suggests that what is expected must happen and must be verified. ‘Building on progress already made’. Now, this is a really tough one to operationalise, but the phrasing suggests that there must be some established continuity in the progress as opposed to regression (as formulated by the Court), which serves as interruption of progress. This same benchmark also speaks of ‘continuing’ to conduct investigations of high-level corruption. Here, unlike in the Bulgarian benchmarks, there is no requirement for a track record, meaning a non-specified, but sufficiently convincing, amount of high-level final sentences.

In its Decision 2023/1786, the Commission says it took account of Romania’s ‘renewed impetus for reform’ and of a ‘reversal’ of the backtracking in the period 2017-2019 (Recital 6 of the Decision). This is related to Benchmark 3, which requires building on progress made, obviously excluding regression (backtracking). Since the regression is a fact, it would take significant convincing by the Romanian authorities that their new impetus is not aimed only at closing the CVM but the objective is to persist.

Here, the role of the Commission was paramount as it is expected to verify that there is indeed building of progress. Therefore, it would have been in line with Decision 2006/928/EC if the Commission had explained in greater detail how it became convinced that the ‘renewed impetus’ can be qualified as ‘building of progress’. This expectation is further fuelled by the Commission itself not being certain of the final effect. In the Decision it says it ‘noted progress across all the remaining recommendations, with many on the path of being fulfilled if progress remained steady’. This statement basically admits that, first, many actions are not yet completed and, second, what is expected to be verified as ‘building on progress made’ is, in fact, conditional on whether this progress would remain steady.

Regarding the new Justice Laws, the Commission only reports that they ‘brought important changes’ (Recital 7 of the Decision). However, Benchmark 1 requires that the Commission ‘report and monitor the impact’ of the new laws. So, what is the impact of the new changes, the stakeholders should ask.

As to Benchmarks 3 and 4, which concern the fight against corruption, the Commission notes that there has been a ‘positive track record’ in the investigations of high-level corruption. Benchmark 3 does not require any specific result in terms of, for example, a number or a share of all charges, but, as mentioned above, a continuation is expected, so it would have been helpful if the Commission explained in more detail what it considers to be a ‘positive track record’. Is it more than before or the number is steady or else?

Moreover, this track record is part of the requirement for ‘building on progress already made’. If the Commission has embarked on such a bold move as to unilaterally repeal the CVM Decision, it is expected to have done its job thoroughly by addressing every benchmark with data and explanations. A few recitals in the Decision to repeal are not at all convincing.

The thirst for explanations increases with the next Recital 8, where the Commission says that ‘Romania committed to complete the revision of the Criminal Code and Criminal Procedure Code, to ensure alignment with the decisions’ of the Constitutional Court. The legal vacuum these decisions left in the Romanian legal space were a subject of a recent case-law of the Court of Justice. The relevant laws were adopted by the Romanian Parliament in June last year. However, Benchmark 1 requires the Commission to report on their impact, not only on their adoption.

In addition, the Commission reports that the Superior Council of the Magistracy committed to be transparent and accountable through a statement made to that effect in April 2023. However, Benchmark 1 requires that the Commission ‘ensure’ that the SCM is more transparent and accountable. A statement by the SCM to that effect does not seem to be sufficient to ensure.

It is really a pity that there have been no CVM cases referred to the Court of Justice from Bulgaria (except one, which did not mention the CVM at all) and, therefore, the second CVM-Member State is very much marginalised in this debate. This is even more unfortunate against the backdrop of the fact that, in Bulgaria’s CVM Decision (Decision 2006/929/EC), Benchmark 6 requires reporting ‘on new and ongoing investigations, indictments and convictions’ regarding organised crime. This suggests bringing much more specificity into the reporting, such as concrete cases, number of indictments and final convictions. This is to be expected also in the Commission’s explanatory notes to the Council to justify its decision to repeal.

However, the Commission highlights something else. It says that Bulgaria committed to continue its cooperation on anti-corruption measures with the Council of Europe and that ‘a number of anti-corruption milestones have been agreed upon in the context of the Recovery and Resilience Plan for Bulgaria’. No word on organised crime. It is, therefore, not clear whether Bulgaria has fulfilled Benchmark 6. Were there any and, if yes, how many investigations and convictions related to organised crime?

All these considerations are further strengthened by the special report of the European Court of Auditors (ECA) on the way the Commission implements the rule of law tools available to it, including the CVM. The report notes that the Commission stopped reporting on the CVM for Bulgaria in 2019. “This was despite the Commission itself acknowledging that Bulgaria must continue its reforms”. Similar conclusions were made for Romania (p. 30, point 57). In addition, with regard to the application of the Conditionality Regulation, the ECA is not satisfied with the way the Commission documented its findings on Bulgaria and Romania, which alludes, probably, to some sort of automaticity as discussed in a previous article.

Even more worryingly, the ECA special report questions the Commission’s decision to list milestones related to prevention, detection and correction of fraud and corruption as ordinary milestones, instead of super milestones, thus allowing it to not block RRF funds. “Based on the Commission’s documentation, we cannot conclude on whether this difference of approach was justified” (p. 36, point 66). The report also accuses the Commission of working on a case-by-case basis, failing to apply a uniform framework for all Member States, thus exacerbating the impression that it has politicised the rule of law toolbox and applies different standards to the same problems.

Most importantly, the report rightly notes that the formal compliance with milestones does not necessarily lead to the desired results. It is necessary to wait for their impact before concluding that they were successfully implemented, which requires a long timeframe. “As an example, the creation of an Integrity Authority does not, in itself, automatically ensure an effective fight against corruption in the member state concerned. That can only be achieved by the effective and sustained functioning of such a body over time. Furthermore, there is a risk of a member state reversing the remedial measures it has implemented once budgetary measures are lifted.” (p. 46). Indeed, the commitment by the Romanian Superior Council of Magistracy to be transparent and accountable does not ensure it will be.

As a further interim conclusion, the recitals to Decision 2023/1786 repeat to a large extent the contents of the Information Note sent to the Council. In light of the seriousness of the challenges the Romanian judicial reform has manifested in the past years and in light of the already numerous CJEU judgments signifying the systematic character of the problems, the information the Commission provided to justify its Decision is simply not sufficient and is definitely not convincing that Romania has met all the benchmarks. Neither is the commitment of the Bulgarian authorities to cooperate with the Council of Europe in the fight against corruption. What is needed is a track record and no regression over time. This clearly supports the idea of leaving the CVM in force for as long as necessary.

What does the closure of the CVM mean for the Romanian rule of law?

The repeal of the CVM, if confirmed by the Court, would weaken the CJEU’s own case-law, where it claims that exposure to disciplinary measures creates a ‘chilling effect’ for members of the judiciary. Moreover, the risk of being subjected to disciplinary measures has an impact on the independence of those subjected to them (C-791/19 R, para 90). This would directly affect the fight against high-level corruption.

As mentioned, the AIJ and other associations and individual members of the Romanian judiciary will lose a strong shield in their fight to defend their independence. While it is true that they can resort to the measures their Polish colleagues used to protect the rule of law by addressing the Court of Justice through preliminary ruling references, this does not immediately guarantee success.

There is one essential question that remains to be answered: why close a powerful instrument, especially when it has proved to work so well? Even more so, why close it if it gives the Commission much more leverage against recalcitrant governments? As shown here and in previous articles, the CVM provides good ground for automatic application of other rule of law instruments if the Commission’s recommendations are not followed, including suspension of EU funds.

Moreover, the political gains from closing the CVM, for example allowing Romania and Bulgaria to join Schengen are insignificant as compared to the damage this closure would have on the long-term rule of law situation in Romania. Insignificant, not least because the current state of Schengen does not offer much reason to celebrate the accession of new countries with all the ‘temporary’ reinstatements of border controls. Importantly, not only the ARLR but also migration concerns are used to block those countries’ accession to Schengen. So why kill a good rule of law instrument for such a low political price?

This is why, this action for annulment is incredibly important. If it proves to be successful, not only will it reinstate the CVM as a very important instrument for building the rule of law in Romania by way of building an independent from political pressure judiciary, which would enable a rigorous fight against high-level corruption, thus keeping the government in check.

It is also important because it would slow down the worryingly fast politicisation of the Commission’s Guardian-of-the-Treaties function and would force it to return to its role of an enforcer. Last but not least, a successful outcome would encourage professional associations of judges and prosecutors in other countries, whose judiciaries are under attack, to seek and receive protection from the Court of Justice. With the current state of the rule of law in the EU, more instruments are needed not less. And, in addition, more enforcement is needed, not less.



1 Benchmark 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 end penal procedure codes.

Benchmark 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.

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

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

2 Regulation (EU, Euroatom) 2020/2092 of the European Parliament and the Council of 16 December 2020 on a general regime of conditionality for the protection of the Union budget, OJ L 433I

3 T-530/22 Medel v Council, T-531/22 International Association of Judges v Council, T-532/22  Association of European Administrative Judges v Council, T-5333/22 Rechters voor Rechters v Council, T-116/23 Medel and Others v Commission

4 Laurent Pech and Dimitry Kochenov, Respect for the Rule of Law in the Case Law of the European Court of Justice, a Casebook Overview of Key Judgments since the Portuguese Judges Case, SIEPS 2021:3 (p. 33)

5 The Council extended the deadline of 15 working days to reply to the question which delegations requested the deadline of the Commission to respond to its Information Note and whether their request was respected. The Council explained the delay was due to ongoing consultations. It did not determine a new deadline to provide the requested information