Dragoș Călin
The legislative amendments promoted by the Romanian Government through the Government Emergency Ordinance no. 62/2024, in June 2024, have sparked numerous discussions in the Romanian legal community, especially in view of the increased potential to affect the independence of judges.
In this regard, on 12 September 2024, the Bucharest Tribunal – Second Division for Administrative and Tax Disputes referred to the Court of Justice of the European Union, under Article 267 of the Treaty on the Functioning of the European Union, with the following question for a preliminary ruling: “Should the second paragraph of Article 19(1) of the Treaty on European Union (with reference to Article 2 of the TEU and Article 47 of the Charter of Fundamental Rights) be interpreted as meaning that the principle of the judicial independence precludes national legislation which makes it mandatory for the panels of judges hearing cases concerning the determination and/or payment of salaries or wages of the staff paid from public funds, to request the High Court of Cassation and Justice, in all their cases, to deliver a preliminary ruling on points of law not previously solved by the supreme court, thus reducing the power of judges in charge of the cases in question to settle the cases autonomously, exclusively on the grounds that the non-unitary practice may negatively impact the general consolidated budget and the socio-economic stability of the country?” (Case C-606/24, Ministerul Finanțelor).
The main subject matter of the dispute is the request of the plaintiffs, civil servants, that the Ministry of Finance be ordered to recalculate and pay compensation equal to the difference between the salaries actually received and the salaries due at the maximum salary level for similar positions under payment in the Ministry of Finance, the National Agency for Tax Administration, its subordinated structures, as well as in the Romanian Customs Authority, the National Office for the Prevention and Combating of Money Laundering, the National Gambling Office, for the same position, rank, professional level and gradation, taking into account and including in the basic salary all salary increases established by final court decisions.
In its reasoning, the Bucharest Tribunal held that the second paragraph of Article 19(1) of the Treaty on European Union provides that Member States shall determine the remedies necessary to ensure effective judicial protection in the areas governed by Union law. Furthermore, according to Article 2 of the Treaty on European Union, the Union is founded on the values of the rule of law, values that are common to the Member States. Moreover, Article 47 of the Charter of Fundamental Rights of the European Union enshrines the right to an effective remedy and to a fair trial, ensuring that everyone has an effective remedy before an independent and impartial court of law.
Although the organisation of justice in the Member States falls within the competence of those Member States, the Member States are required to comply with their obligations arising from EU law and, in particular, from Articles 2 and 19 of the TEU. The law must be of good quality and meet certain standards, and a Member State may not amend its legislation in such a way as to lead to a regression in the protection of the value of the rule of law, which is enshrined in Article 19 of the TEU, among others. Therefore, any national measure or practice which seeks to avoid divergences in case law or to remedy them and thus to ensure the legal certainty inherent in the principle of the rule of law must comply with the requirements stemming from the second subparagraph of Article 19(1) of the TEU. Member States are required to ensure that their legislation on the organisation of justice is not retrogressive and must refrain from adopting rules that would undermine the independence of judges.
The Government Emergency Ordinance no. 62/2024 applies immediately in proceedings concerning the establishment and/or payment of salaries or wages of staff paid from public funds, including those concerning the issuing of administrative acts or the annulment of administrative acts issued for such staff and/or those concerning the employment and work relationships of such staff. It also applies to proceedings concerning the establishment and/or payment of pension rights, including those resulting from the updating/recalculation/revision of pension rights and/or those concerning other social security benefits of staff paid from public funds.
The Government Emergency Ordinance no. 62/2024 requires the panel of judges hearing the case at first instance or on appeal to request the High Court of Cassation and Justice to deliver a judgment, in all cases, providing a solution in principle on the point of law on the clarification of which the resolution of the case merits depends, except in those cases in which the High Court of Cassation and Justice has not given a ruling and the matter is not the subject of an appeal in the interest of the law pending before it. All similar cases pending before the courts will be suspended pending the preliminary ruling on the point of law.
The referring court pointed out that the emergency ordinance transformed an optional procedure into a mandatory one only in the case of certain judicial proceedings.
Ad baculum, overnight, given that the emergency ordinance entered into force on the date of its publication in the Official Gazette of Romania, a judicial system without non-unitary case law was imagined.
As a rule, in Romania, according to the Code of Civil Procedure, it is not mandatory to refer a case to the High Court of Cassation and Justice for a preliminary ruling unless the court that is hearing the case for a definitive decision deems it necessary, due to uncertainties regarding the legislative provisions. The purpose of the procedure regulated by the Code of Civil Procedure is to be a judicial mechanism to be used as a legal instrument for unifying case law, rather than as a means for courts to delegate the powers of interpretation and application of the law to the panel for the resolution of points of law.
However, the provisions of the Government Emergency Ordinance no. 62/2024 require the court to refer the matter, even if there are no doubts on the merits of the case, to the High Court of Cassation and Justice, which will be required to indicate how to proceed in the dispute in which the referral was made.
The judge is no longer given the opportunity to exercise their own judgment in determining how to resolve the legal matter and to adapt it to the case before them.
Justifying the adoption of a normative act on the grounds that the non-unitary judicial practice may negatively impact the consolidated general budget and socio-economic stability suggests the desire of the issuer of the emergency ordinance that the envisaged procedure of unification of judicial practice should have favourable results for the state budget.
Therefore, the assumption that the solutions for unifying practice will be favourable to the state budget (aligned with the financial interests of the state) demonstrates that the executive power, acting here through legislative delegation, has a certain expectation regarding the results of the unification procedure.
In this regard, it was stated, including in the public communication of the Prime Minister of Romania, Mr. Ion Marcel Ciolacu, respectively during the TV show „Punctul culminant” on Romania TV, on 3 September 2024, (https://www.youtube.com/watch?v=MF52LQnDHAs, minutes 15:50 – 17:30), that “all the cases concerning salaries have been moved to the High Court”, categorizing the other courts as “village courts”, and the conclusion was that, after the adoption of Emergency Ordinance no. 62/2024, “the judges of the High Court of Cassation and Justice cannot afford to do so”.
The Bucharest Tribunal also points out that this opens the way to an apparent political influence on the judiciary. In this way, the courts will be perceived as being under the influence of the executive/legislature or subject to political directives, which will severely affect public confidence in the judiciary and have negative consequences for the rule of law and democracy as a whole.
It is also noted that the obligation of the panels to request the High Court of Cassation and Justice to give a preliminary ruling on previously unresolved points of law only in certain cases violates the principle of the independence of judges, as it limits the ability of the competent court to decide cases autonomously. Judges must be free to interpret and apply the law without outside interference, and imposing a mandatory procedure for referral to the High Court of Cassation and Justice undermines this independence.
The emergency ordinance also imposes an automatic suspension of similar cases, which directly interferes with the independence of judges to handle their own cases. They are required to suspend cases, irrespective of the specifics of each situation, which undermines the principle of independence.
Therefore, the Government Emergency Ordinance no. 62/2024 has negative effects on trials being conducted within a reasonable timeframe and leads to the accumulation of a considerable backlog of cases in the courts, as it mandates the suspension of all similar cases by operation of law. Furthermore, at the level of the High Court of Cassation and Justice, there is a risk that the work of the High Court of Cassation and Justice may be hampered or even blocked due to the numerous referrals that must be made by the competent courts, considering the specific nature of each application for a writ of summons and of the heads of claim filed, as well as the dynamics of legislative changes.
Divergences in case law are inherent in any judicial system that is based on a set of courts with territorial jurisdiction. This has been noted by the European Court of Human Rights in well-established case law, which emphasises that such divergences can also occur within the same court and cannot, in themselves, be considered contrary to the European Convention on Human Rights.
In this regard, Romanian legislation includes sufficient mechanisms for unifying judicial practice, as provided in the Code of Civil or Criminal Procedure, which regulates general provisions for referral to the High Court of Cassation and Justice regarding the resolution of legal issues (preliminary ruling) or the unification of judicial practice in the case of contradictory judgments (appeal in the interest of the law) only after it is established that the issue in question is difficult, new and only if it meets certain admissibility conditions, and the suspension of similar cases pending before the courts is optional.
Finally, the Consultative Council of European Judges frequently emphasises the potential risk that the internal judicial hierarchy may have on the independence of judges. The independence of the judiciary implies not only freedom from inappropriate external influences, but also freedom from undue influences that may arise in certain situations due to the attitude of other judges. “Judges should have unfettered freedom to decide cases impartially, in accordance with their conscience and their interpretation of the facts, and in pursuance of the prevailing rules of the law.” (Recommendation no. R (94) 12, Principle I (2)(d)).
It is unanimously accepted that judges must be free to interpret and apply the law without external interference. Therefore, imposing a mandatory procedure for referral to a supreme court, in thousands of cases, may undermine this independence — an aspect that the Court of Justice of the European Union will need to examine thoroughly.
What is certain is that a judicial system without non-unitary case law is and remains a utopia, regardless of the legislative formulas used.
No related posts.