1.

‘Justice must not only be done, it must also be seen to be done’. That famous maxim is often relied upon when it comes to issues of judicial independence given that, at the heart of those issues, lies the confidence which the courts in a democratic society must inspire in the public. ( 2 )

2.

In 2019, the Section for Judges of the Consiliul Superior al Magistraturii (Superior Council of Magistracy, Romania; ‘the SCM’) approved a national regulation reforming the promotion procedure applicable to judges of lower courts in Romania (‘the contested regulation’). ( 3 ) The applicants in the main proceedings, the Asociaţia ‘Forumul Judecătorilor din România’ (‘Forum of Romanian Judges’ Association; ‘the Romanian Judges’ Forum’) and YN, seek the partial annulment of that decision before the Curtea de Apel Ploieşti (Court of Appeal, Ploieşti, Romania), which is the referring court in the present case.

3.

They claim that the reform introduced by the contested regulation is problematic to the extent that, according to them, the promotion procedure applicable to judges of lower national courts is conducted by the presidents and members of the courts of appeal in which positions are to be filled and is based on subjective and discretionary criteria, rather than on an objective assessment of the candidates to that procedure, based only, as was the case prior to the adoption of the contested regulation, on their performance in a written exam.

4.

By the present request for a preliminary ruling, the referring court enquires as to the compatibility of such a reform with the principle of judicial independence which, in its view, derives from Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’) (fundamental right to a fair trial) and the second subparagraph of Article 19(1) TEU (right to effective judicial protection), as well as from the value of the rule of law within the meaning of Article 2 TEU.

5.

In short, for the reasons that I will outline below, I am of the view that legislative changes such as those brought about by the contested regulation do not breach the principle of judicial independence.

6.

Pursuant to the second subparagraph of Article 19(1) TEU, ‘Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law’.

7.

Article 47 of the Charter, entitled ‘Right to an effective remedy and to a fair trial’, states, in its second paragraph, the following:

‘Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. …’

8.

Legea nr. 303/2004 privind statutul judecătorilor și procurorilor (Law No 303/2004 on the rules governing judges and public prosecutors), of 28 June 2004, republished in Monitorul Oficial al României, Partea I, No 826 of 13 September 2005 (‘Law No 303/2004’) was amended and supplemented by Legea nr. 242/2018 pentru modificarea și completarea Legii nr. 303/2004 privind statutul judecătorilor și procurorilor (Law No 242/2018 on the amendment and completion of Law No 303/2004 on the rules governing judges and public prosecutors), of 12 October 2018, Monitorul Oficial al României, Partea I, No 868 of 15 October 2018 (‘Law No 242/2018’), which entered into force on 18 October 2018.

9.

Pursuant to Law No 242/2018, Articles 461 to 463 were inserted into Law No 303/2004. Those provisions state that judges and public prosecutors may be promoted exclusively by means of national competitions in which the work performance and conduct of the candidates over the three years prior to the promotion procedure are assessed. The specific rules governing the organisation and conduct of those promotion procedures are to be established by regulations adopted by, as the case may be, either the Section for Judges or the Section for Public Prosecutors of the SCM.

10.

The contested regulation, which contains rules on the organisation and conduct of competitions for the promotion of judges in office, was adopted in application of Articles 461 to 463 of Law No 303/2004. That regulation was approved by Decision No 1348 of 17 September 2019 of the Section for Judges of the SCM.

11.

By their action, registered on 12 November 2019, the applicants in the main proceedings asked the Curtea de Apel Ploieşti (Court of Appeal, Ploieşti) to annul in part Decision No 1348 of 17 September 2019 of the Section for Judges of the SCM approving the contested regulation. They claim that that regulation infringes the principle of judicial independence and was adopted in disregard of the recommendations laid down in the various reports issued by the European Commission in accordance with the ‘Mechanism for Cooperation and Verification’ (‘the CVM’), which was established in the context of Romania’s accession to the European Union.

12.

First, they contend that the contested regulation places too much power in the hands of the presidents of the courts of appeal given that the selection board in charge of conducting the promotion procedure is composed of the president of the relevant court of appeal and other members of that court, whose appointment to the selection board is based on a proposal of the management body of the court of appeal (on which the president also sits). The members of the selection board are, in practice, also in charge of ruling on appeals against the judgments handed down by the candidates while sitting in lower courts, and of carrying out periodic evaluations of the candidates’ work performance as judges when and if they are promoted to the courts of appeal. ( 4 )

13.

Second, they argue that the promotion procedure introduced by that regulation attaches too much weight to a subjective evaluation of the activities and conduct of the candidates over the three years prior to their participation in that procedure. As part of that assessment, the selection board reviews only a small number of decisions drafted by each candidate. Furthermore, the candidates’ success in the promotion procedure depends on that board’s subjective opinions of the candidates and on the views expressed by the candidates’ peers based on their conduct, rather than on their merits.

14.

In the view of the applicants in the main proceedings, the changes brought about by the contested regulation could give rise to attitudes of hierarchical subordination towards members of the courts of appeal given that candidates might be encouraged, in order to obtain a promotion, to be subservient towards the presidents and other members of the courts of appeal sitting on the selection boards.

15.

Harbouring doubts as to the compatibility with EU law of the reform introduced by the contested regulation, the Curtea de Apel Ploieşti (Court of Appeal, Ploieşti) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

16.

The request for a preliminary ruling, dated 16 February 2021, was registered on 6 April 2021. The Romanian Judges’ Forum, the SCM, the Polish Government, as well as the Commission, have submitted written observations. No hearing has been held.

17.

The present case provides the Court with an opportunity to consider, for the first time, the application of its case-law on the independence of judges to promotion procedures which are applicable to them, as well as to examine whether a reform such as that introduced in Romania by the contested regulation is compatible with the requirements set out in that case-law.

18.

Before turning to the questions referred, I will briefly outline the contextual elements that are relevant to the present case.

19.

During the negotiations leading to Romania’s accession to the European Union in 2007, concerns were expressed about serious shortcomings in the justice system and the fight against corruption in that State. ( 6 ) In order to alleviate those concerns, the Commission adopted, as it was entitled to do under Articles 37 and 38 of the Act concerning the conditions of accession of the Republic of Bulgaria and Romania, ( 7 ) a decision ( 8 ) in which it emphasised the importance of the rule of law as a precondition to any State joining the European Union ( 9 ) and recalled the need for all Member States to have an impartial and independent judicial system. ( 10 ) That decision established the CVM, a transitional measure to facilitate Romania’s continued efforts to reform its judiciary and step up the fight against corruption in the years following its accession to the European Union.

20.

In concrete terms, the CVM Decision provides for the adoption of periodic reports by the Commission. Those reports are designed periodically to assess Romania’s progress in reforming its justice system against a set of benchmarks (‘the CVM benchmarks’), ( 11 ) which give concrete expression to the specific commitments undertaken by that Member State and the requirements accepted by it at the conclusion of the accession negotiations, with regard, in particular, to safeguarding and improving judicial independence across its territory. ( 12 )

21.

Within that context, particular attention has been paid, at both the national and EU levels, to whether recent reforms of the judicial system in Romania sufficiently protect the independence of national judges. Already in 2019, a succession of cases were brought before the Court concerning amendments that were adopted in Romania between 2018 and 2019, relating to the criminal and disciplinary proceedings to which members of the Romanian judiciary may be subject, as well as the regime of civil liability applicable to them.

22.

The Court considered the compatibility of those amendments with the principle of judicial independence in the judgment in Asociaţia ‘Forumul Judecătorilor din România’ and Others. ( 13 ) In that judgment, it also clarified that the CVM Decision and the reports drawn up by the Commission on the basis of that decision, constitute acts of an EU institution which are amenable to interpretation by the Court. Furthermore, it held that the CVM Decision is binding in its entirety on Romania, together with the CVM benchmarks, which are intended to ensure that that Member State complies with the value of respect for the rule of law, set out in Article 2 TEU. It also indicated that Romania is required to take appropriate measures for the purposes of meeting those benchmarks, taking due account of the reports drawn up by the Commission on the basis of the CVM Decision, and in particular the recommendations made in those reports. ( 14 )

23.

The present request for a preliminary ruling was registered just a few weeks before the judgment in Asociaţia ‘Forumul Judecătorilor din România’ and Others was delivered. ( 15 ) However, I note that, by its first question, the referring court seeks clarification, once again, about the nature and legal effects of the CVM Decision and the reports adopted under it.

24.

Since the findings of the Court in that earlier judgment already provide an answer to that question, this Opinion will focus only on the remaining three questions referred, in accordance with the Court’s request.

25.

My analysis will be structured as follows. First, I will say a few words about the scope and relevance of the various provisions of EU law invoked by the referring court in its request for a preliminary ruling (B). I will also deal with the objections to the Court’s jurisdiction submitted by the SCM and the Polish Government (C). Then, I will outline the Court’s case-law on judicial independence (as it derives from the judgment in Asociaţia ‘Forumul Judecătorilor din România’ and Others and other cases) and explain why, in my view, sufficient guarantees of judicial independence must also be maintained in the context of promotion procedures for judges in office (Question 2) (D). In the light of that case-law, I will provide the reasons why I consider, subject to the verifications to be carried out by the referring court, that a reform such as that introduced by the contested regulation does not infringe the principle of judicial independence (Question 3) (E). Lastly, I will address the referring court’s concerns that such a reform might be contrary to the recommendations contained in some of the reports prepared by the Commission in accordance with the CVM (Question 4).

26.

The questions referred have identified the second subparagraph of Article 19(1) TEU, Article 47 of the Charter and Article 2 TEU as the relevant EU law provisions against which the compatibility of the contested regulation must be assessed. The link between those various provisions is clearly apparent from the Court’s case-law. Indeed, the Court has held that the requirement that courts be independent forms part of the essence of both the right to effective judicial protection (second subparagraph of Article 19(1) TEU) and the fundamental right to a fair trial (second paragraph of Article 47 of the Charter), which is of cardinal importance as a guarantee, inter alia, that the values common to the Member States set out in Article 2 TEU, in particular respect for the rule of law, are safeguarded. ( 16 ) As such, it is clear that, within the EU legal order, there is a single principle of judicial independence and that the content of both Article 19(1) TEU and Article 47 of the Charter, in terms of judicial independence, is, in essence, the same. ( 17 )

27.

Nevertheless, the existence of those distinct legal bases, and the different functions performed by Article 19 TEU and Article 47 of the Charter, means that the type of examination to be carried out by the Court in order to verify compliance with the principle of judicial independence may differ.

28.

In that regard, Advocate General Bobek has explained ( 18 ) that Article 19 TEU has a broad scope. It requires the Member States, inter alia, to ‘provide remedies sufficient to ensure effective legal protection’ and is, therefore, concerned mainly with the structural and systemic elements of the national legal frameworks, rather than elements pertaining to specific cases or the individual files. At the same time, the threshold for a breach of Article 19(1) TEU is rather high. The purpose of that provision is not to capture all possible issues that may arise with regard to the national judiciary, but only those which are of such seriousness and/or systemic nature that they threaten the proper functioning of the national judicial system and jeopardise the capacity of the Member State in question to provide sufficient remedies to individuals.

29.

Article 47 of the Charter, conversely, is aimed at protecting the subjective right of any party to proceedings to have an effective remedy and a fair trial before an ‘independent and impartial tribunal previously established by law’. The verification of the ‘independence’ of a court, in that context, calls for a detailed and case-specific assessment of the relevant circumstances, whilst issues linked to some structural or systemic feature of the judicial system of the Member States come into play only in so far as they may have had an impact on the individual proceedings. ( 19 ) Specific conditions must, however, be met before Article 47 of the Charter may be relied upon. Indeed, for the Charter to be applicable as a whole, the situation at hand must fall within the scope of EU law. ( 20 ) Furthermore, a potential issue resulting in a breach of Article 47 of the Charter can, in principle, be raised only with regard to an individual right guaranteed under EU law.

30.

This difference in scope and purpose between Article 19(1) TEU and Article 47 of the Charter, as well as in the conditions governing the applicability of those provisions, means that, overall, two types of cases may be brought before the Court concerning the compatibility of national provisions with the principle of judicial independence. ( 21 ) On the one hand, there are cases where an issue of judicial independence is brought by an individual, as an incidental issue in a situation where he or she alleges that his or her individual rights protected by EU law have been breached. In such cases, judicial independence will typically be examined through the lens of Article 47 of the Charter. On the other hand, there are cases concerning the compatibility ‘in the abstract’ of certain legislative instruments or structural elements adopted in the Member States with the requirements of EU law that are not linked to a particular instance of an infringement of the individual right to a fair trial. In that context, the Court will usually employ Article 19(1) TEU as its main or sole benchmark. ( 22 )

31.

The present case is a little unusual. On the one hand, it appears from the case file that the applicants in the main proceedings are not alleging a breach of their individual rights protected by EU law but, rather, that the reform introduced by the contested regulation creates an issue of a systemic, transversal nature. They seek an assessment ‘in the abstract’ of the compatibility of that reform with the principle of judicial independence. On the other hand, it is difficult to consider that the main or sole benchmark for the purposes of that assessment is the second subparagraph of Article 19(1) TEU and, in that sense, that Article 47 of the Charter is of no relevance in the present case. As Advocate General Bobek stated in his Opinion in Asociaţia ‘Forumul Judecătorilor din România’ and Others, ( 23 ) national provisions such as those at issue in the main proceedings have the peculiarity that, as I explained in Section A above, they were adopted as a ‘national implementation’, by Romania, of the CVM Decision and of the Act concerning the conditions of accession of the Republic of Bulgaria and Romania. What is at stake, therefore, is the conduct of a Member State (Romania in casu) in a situation where it is implementing its obligations under EU law and, thus, acting within the scope of EU law and where the application of the Charter is, as a result, triggered.

32.

I share Advocate General Bobek’s view that that specific context opens the door to a second scenario, distinct to the one outlined above in point 29, in which the provisions of the Charter (including Article 47 thereof) – which have the same value as the provisions of the Treaties ( 24 ) – may be relied upon by the Court, not in relation to any breach of individual rights (as I stated, no such rights are alleged to be infringed here), but as an objective yardstick or benchmark in order to assess the compatibility of Romania’s implementation of EU law requirements.

33.

It follows, in my view, that the present case fits into the second category of cases described in point 30 above, in as much as it calls for an abstract review of the compatibility of the reform introduced by the contested regulation in the light of the principle of judicial independence, rather than an in concreto review in relation to an alleged breach of individual rights. However, given the specific context in which the present case takes place (with Romania being subject to the CVM and the Charter shadowing the national legislative choices it adopts as a result), I believe that both Article 47 of the Charter and the second subparagraph of Article 19(1) TEU, read in conjunction with Article 2 TEU, may be regarded as relevant benchmarks for the purposes of carrying out that review, rather than Article 19(1) TEU only. ( 25 )

34.

A number of objections have been put forward by the SCM and the Polish Government, arguing, in essence, that the questions referred to the Court are inadmissible because the latter has no jurisdiction to hear them. In the view of those parties, the organisation of justice – including matters such as procedures for the promotion of national judges – falls within the exclusive competence of the Member States, outside the scope of EU law. Thus, according to them, that area does not come within the jurisdiction of the Court of Justice.

35.

In my view, those arguments cannot be upheld and can easily be dismissed. As I indicated in point 31 above, the contested regulation was adopted by Romania while being subject to the CVM. It thus ought to be regarded as an ‘implementation’ of the obligations imposed on it by the CVM, by virtue of being an act adopted by an EU institution which is binding in its entirety on that Member State. ( 26 ) In those conditions, it would be wrong to consider that the present case falls outside the scope of EU law.

36.

Moreover, the objections put forward by the SCM and the Polish Government are certainly not new, and have in fact previously been raised, inter alia, by that government, in a number of other cases also concerning judicial independence. ( 27 )

37.

In those prior cases, the Court dealt with those objections in a consistent manner, emphasising that, although the organisation of justice in the Member States remains within their competence, it is established that, when exercising that competence, the latter are required to comply with their obligations deriving from EU law, including those stemming from Article 2 and Article 19(1) TEU. ( 28 )

38.

The subject of the present request for a preliminary ruling concerns, yet again, precisely the obligations of the Member States that flow from those provisions, together with Article 47 of the Charter and the CVM Decision, and whether the national provisions at issue in fact comply with those obligations. Moreover, the objections formulated by the SCM and the Polish Government relate, in essence, to the actual scope of the principle of judicial independence, as it is defined under the second subparagraph of Article 19(1) TEU and Article 47 of the Charter, read in conjunction with Article 2 TEU, and, therefore, to the interpretation of those provisions. As the Court has held, an interpretation of that nature clearly falls within its jurisdiction under Article 267 TFEU. ( 29 )

39.

By its second question, the referring court asks the Court, in essence, to clarify whether the principle of judicial independence must be interpreted as also applying to procedures for the promotion of judges in office.

40.

I note that the SCM considers that the second question is inadmissible, on the ground that the answer to that question is so clear from the Court’s case-law that it leaves no room for any reasonable doubt. In that regard, I only wish to point out that, although such a circumstance, if it is proven, may prompt the Court to rule on a case by means of an order pursuant to Article 99 of the Rules of Procedure of the Court of Justice, that same circumstance cannot however prevent a national court from referring a question for a preliminary ruling or have the effect of rendering the question thus referred inadmissible. ( 30 ) Hence, in my view, there is no reason to conclude, as the SCM argues, that the second question is inadmissible.

41.

In order to answer that question, I will first outline the case-law of the Court concerning the independence of national judges in relation to the second subparagraph of Article 19(1) TEU and Article 47 of the Charter, read in conjunction with Article 2 TEU (1), before explaining why, in my view, the principle of independence of judges applies to the promotion procedures to which they are subject (2).

42.

To begin with, I note that neither the second subparagraph of Article 19(1) TEU nor Article 47 of the Charter requires Member States to adopt any particular model with regard to the organisation of their judicial systems. Rather, those provisions seek to preclude national provisions relating to the organisation of justice that undermine, in the Member States concerned, the protection of the value of the rule of law under Article 2 TEU. ( 31 ) As such, the case-law developed by the Court in relation to the principle of judicial independence focuses on minimal requirements which national systems must comply with. In particular, those minimal requirements must not fall below the level of protection established in Article 6 of the European Convention on Human Rights (ECHR), as interpreted by the European Court of Human Rights. ( 32 )

43.

Within that context, the Court has held that the concept of judicial independence has two aspects to it. The first aspect, which is external in nature, requires that the court or body concerned to exercise its judicial 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 degree of remove 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. ( 33 ) Both aspects are, of course, closely linked. ( 34 )

44.

In that regard, the Court has devised a single test which requires, in essence, that rules, particularly those concerning the composition of, or the appointment to, a court or a body exercising judicial functions, as well as the length of service and grounds for abstention, rejection and dismissal of its members, be such as to dispel any reasonable doubt in the minds of individuals as to the imperviousness of that body to external factors and its neutrality with respect to the interests before it. ( 35 ) Furthermore, it has stated that judges must be protected from potential temptations as regards not only any direct influence, in the form of instructions, but also types of influence which are more indirect and which are liable to have an effect on the decisions of the judges concerned. ( 36 )

45.

The Court has confirmed, in successive judgments, that the principle of judicial independence is broad in scope. It applies to rules concerning the appointment of judges, ( 37 ) the conditions under which their careers progress and come to an end (including changes to their remuneration, ( 38 ) their removal from office, ( 39 ) the disciplinary regime ( 40 ) or criminal proceedings ( 41 ) to which they may be subject and the possibility for them to benefit from an extension to the period of judicial activity beyond normal retirement age). ( 42 ) Furthermore, that principle also applies to rules governing their secondment to a higher court by the Minister of Justice. Such rules must provide sufficient guarantees in order to prevent, in particular, any risk of that secondment being used as a means of exerting political control over the content of judicial decisions. ( 43 )

46.

In the light of the case-law that I have just recalled, I have no doubt, and the parties in the main proceedings do not dispute, that the principle of independence of judges applies to the promotion procedures to which they are subject. The examples listed in point 45 above reveal that that principle has already been applied by the Court to a broad range of aspects and components of the structural organisation of national courts and must be interpreted as having a wide scope. In particular, the Court has already found that sufficient guarantees of judicial independence must be maintained concerning the rules governing the appointment of judges, their secondment to higher courts and the conditions under which their careers progress and come to an end in general. Promotion procedures between different levels of courts concern precisely the manner in which judges of lower courts are selected in order to be appointed or seconded to higher courts. ( 44 ) Moreover, they form part of the conditions under which judges’ careers progress and come to an end. They should thus be required to comply with the principle of judicial independence. ( 45 )

47.

In the light of those elements, I am of the view that Article 47 of the Charter and the second subparagraph of Article 19(1) TEU, read in conjunction with Article 2 TEU, must be interpreted as meaning that the principle of judicial independence also applies to procedures for the promotion of judges in office.

48.

By its third and fourth questions, the referring court enquires as to the compatibility of a reform such as that introduced in Romania by the contested regulation with the principle of judicial independence. It also wonders whether such a reform is contrary to the recommendations contained in reports prepared by the Commission in accordance with the CVM.

49.

Before turning to those questions, I will make three preliminary remarks.

50.

First, the SCM argues that the third and fourth questions are inadmissible because they are based on an erroneous description of the promotion procedure at issue in the main proceedings. In that regard, I recall that it is settled case-law that questions on the interpretation of EU law referred by a national court in a given factual and legislative context the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance. ( 46 ) I further note that the SCM’s arguments concerning the inadmissibility of the third and fourth questions actually relate to the substance of those questions and the answer which the Court will provide in that regard. It follows that the third and fourth questions are, in my view, admissible.

51.

Second, the fact that the present case calls, as I stated in Section B above, for an abstract compatibility assessment ( 47 ) of the reform introduced by the contested regulation does not mean that the mere potential for misuse of the procedure introduced by that reform will be sufficient to condemn that procedure in its entirety. As Advocate General Bobek has stated, ( 48 ) there must be some convincing argument brought before the Court as to how concretely and specifically a certain procedure, such as that at issue in the main proceedings, is liable to jeopardise judicial independence.

52.

More specifically, in line with the test that I have set out in point 44 above, the issues concretely brought up in that connection must give rise to reasonable doubt in the minds of individuals as to the independence and the impartiality of the judges concerned; otherwise there can be no structural problem of judicial independence. As the Court has pointed out, recalling the case-law of the European Court of Human Rights in that regard, in order to establish the element of ‘independence’, one of the relevant elements to be considered is the question of whether the body presents an ‘appearance of independence’, since the confidence which courts must inspire in the public in a democratic society is precisely what is at stake. The key element consists, in other words, in how the public might legitimately perceive the arrangements at issue. ( 49 ) Those arrangements must be considered as a whole, since certain aspects of the procedure or system in question that may appear problematic at first sight can be offset by other aspects. ( 50 )

53.

Third, it is ultimately for the referring court to rule on whether or not a structural problem of judicial independence exists in the present case, having made the relevant findings in that regard. Indeed, it must be borne in mind that Article 267 TFEU does not empower the Court to apply rules of EU law to a particular case, but only to rule on the interpretation of the Treaties and of acts of EU institutions. According to settled case-law, the Court may, however, in the framework of the judicial cooperation provided for by Article 267 TFEU and on the basis of the material presented to it, provide the national court with an interpretation of EU law which may be useful to it in assessing the effects of one or other of its provisions. ( 51 )

54.

Having made those clarifications, I note that the promotion procedure for judges serving in lower courts in Romania appears, as the referring court explains, to be structured in two steps. The first step, which is governed by Chapter II of the contested regulation, is called ‘on-the-spot promotion’. It is based on a written competition that is designed to test both the theoretical knowledge and the practical skills of the candidates. Successful candidates are then promoted to a higher professional grade but continue, in effect, to hold the same office. ( 52 )

55.

The second step, which is called ‘effective promotion’, is governed by Chapter III of that regulation. It enables candidates who have already been promoted ‘on-the-spot’ and who possess the required professional grade to be actually assigned to a regional court or court of appeal. ( 53 )

56.

The applicants in the main proceedings do not take issue with the first step of the promotion procedure, that is to say, ‘on-the-spot’ promotion. They seek only to challenge the modalities of the second step of that procedure (the ‘effective promotion’ procedure), during which the selection board must evaluate the candidates’ work and conduct over the last three years preceding their participation in that second step. ( 54 ) Two aspects of that procedure appear to be particularly problematic to them: (i) how the members of the selection board who participate in the ‘effective promotion’ procedure are designated and the composition of that board, and (ii) the criteria applied by the members of the selection board in order to decide which candidates shall be promoted. ( 55 )

57.

The contested regulation provides that the evaluation of the candidates for ‘effective promotion’ is to be carried out by a selection board whose members are designated by the Section for Judges of the SCM. ( 56 ) That board is composed, at the level of each court of appeal, of the president of that court and four of its members, whose specialisation must correspond to that of the vacant positions. Those four members are chosen by the Section for Judges of the SCM on the basis of a proposal of the management body of the court of appeal (of which the president of that court is a member). ( 57 )

58.

The applicants in the main proceedings claim that the contested regulation places too much power in the hands of the presidents of the courts of appeal. Furthermore, the reform creates, in their view, a risk that candidates for the ‘effective promotion’ procedure will behave in a subservient manner towards the presidents and members of the courts of appeal and feel indebted to them. In that regard, they point out that the persons sitting on the selection board are also in charge of reviewing on appeal the judgments handed down by the candidates while sitting in lower courts and are responsible for carrying out periodic evaluations of the candidates’ work performance as judges when and if they are promoted to the courts of appeal. They argue that judicial independence may be at risk not only in circumstances where judges are exposed to political pressures, but also where bias and nepotism are encouraged within the judiciary.

59.

In my view, and subject to the verifications of the referring court, the elements put forward by the applicants in the main proceedings cannot, in and of themselves, give rise to reasonable doubt in the minds of individuals as to the imperviousness of candidates for the ‘effective promotion’ procedure to external factors, in accordance with the test which I have set out in point 44 above.

60.

Two reasons prompt me to reach that conclusion.

61.

First, I note that, although the Court has, in its case-law, very much insisted upon the fact that the independence of the judiciary must, in particular, be ensured in relation to the legislature and the executive, ( 58 ) it has, thus far, not placed much emphasis on the fact that relationships of subordination or control between different courts (not involving the executive or legislature) could generate issues of judicial independence. ( 59 )

62.

I believe that there is an obvious explanation for that difference in treatment. Cases concerning the independence of the judiciary from other branches of government (such as cases concerning the appointment of members of a judiciary body by a Minister) reach the Court’s docket more often because, as the Court has pointed out, ( 60 ) they strike at the heart of the doctrine of ‘separation of powers’. That makes them both easier to spot and to flag as potentially problematic. Cases regarding the influence exercised by certain members of the judiciary over their peers are more subtle. Yet, they may also give rise to issues of judicial independence. Indeed, it is certainly possible, and not at all difficult to imagine, that certain forms of judicial self-governance may generate a ‘system of dependent judges within an independent judiciary’, with undue influence being exercised by judicial officials, such as presidents of courts or officials of judicial self-administration bodies, within the judiciary. ( 61 ) Issues of judicial independence are, to that extent, not confined to situations implicating other branches of power or third parties, but may arise within the judicial system itself, wherever there is a risk that judges could be improperly influenced by their colleagues. ( 62 ) However, while the mere participation of the executive or the legislature in decisions affecting the judiciary is sufficient to raise a possible ‘red flag’ in view of the doctrine of separation of powers, the fact that certain judges exercise control over their peers does not, in and of itself (and unless the executive or legislature interfere in that regard), ( 63 ) point to the existence of a potential problem of judicial independence. ( 64 )

63.

Having said that, I agree with the applicants in the main proceedings that, in any democratic system, it is never good (regardless of which branch of government is concerned) to entrust too much power to a single person or body. Too much power in the hands of too few means less accountability and more potential for arbitrary decision-making, bias, nepotism and abuse. ( 65 ) Here, it is true that the members of the selection board combine several roles that can affect the professional lives and careers of judges in lower courts. They are in charge of conducting the promotion procedure for judges of lower courts, of reviewing the judgments handed down by those judges on appeal and of carrying out periodic assessments of their work, if and when they are eventually promoted and appointed to the court of appeal (and, with regard to presidents of the courts of appeal, of making recommendations as to who will sit on the selection board).

64.

However, is that sufficient to create reasonable doubt in the minds of individuals as to the imperviousness of the judges of lower courts to external factors? In my view, something more is required. There must be an indication that such a concentration of power could actually cause external intervention or pressure liable to impair the independent judgment of judges of lower courts and to influence their decisions, for example by creating an incentive for them to favour one party over the other in the proceedings before them or to rule with a view to pleasing those who appoint or promote them. ( 66 ) It seems to me that the mere fact that, in order to boost their chances of being promoted, judges of lower courts are encouraged (without being swayed by other considerations, such as whether the judgments that they deliver will meet the approval of a particular member, such as the president of the court of appeal) to put in their best efforts to ensure that those judgments are of the highest possible quality, thereby minimising the risk that they be quashed on appeal, is a relatively harmless state of affairs in a system where lower courts are supposed, in the absence of cogent reasons to the contrary, ( 67 ) to follow the case-law of higher courts.

65.

Moreover, and contrary to the rather negative picture painted by the applicants in the main proceedings, one could argue that, because members of the courts of appeal of the Member States are themselves required, under EU law, to comply with the principle of judicial independence and be free from external influence or pressure, they are, in principle, in a good position to evaluate the candidates’ work and determine who among them deserve a promotion. The fact that they may be in charge of reviewing on appeal the judgments which the candidates deliver as judges while sitting in lower courts and are familiar with the functioning of courts and the drafting of judicial decisions only confirms, in my view, their aptitude, in a situation, such as that at issue in the main proceedings, where their own independence is not questioned, to perform that assessment.

66.

Second, the mere fact that decisions regarding the appointment of judges (or, as is the case here, their promotion) are entrusted to certain people or groups of people, and not to others, is, to my mind, not sufficient to establish a lack of sufficient guarantees of judicial independence. Someone must be responsible for those appointments, be it members of the executive or the legislature or other members of the judiciary or a mix of all three or even an entirely different body, and, oftentimes, it is not easy to think of an ideal candidate for that job. As I have just explained, members of the judiciary are, in principle, well placed to perform those functions. However, it seems that, even where judges are actually appointed or promoted by the executive, that is not, in and of itself, problematic from the perspective of judicial independence. ( 68 )

67.

The Court endorsed that approach in, inter alia, the judgments in A.B. and Others (Appointment of judges to the Supreme Court – Actions) ( 69 ) and in Prokuratura Rejonowa w Mińsku Mazowieckim and Others. ( 70 ) That last judgment concerned the conditions under which the Minister for Justice may second a judge to a higher court and terminate that secondment. In that case, the Court emphasised, in essence, that what mattered, in order to avoid arbitrariness and the risk of manipulation, was not so much ‘who’ was in charge of taking the decisions, but that those decisions were taken on the basis of criteria which were known in advance and which contain an appropriate statement of reasons. ( 71 ) Of course, that does not mean that the ‘who’, responsible for the appointment or promotion of judges, is irrelevant: the more it appears that the ‘who’ is problematic from the perspective, for example, of the separation of powers, or due to the degree of subordination that exists between the body responsible for the appointment and the judges who benefit from it, the more substantive and procedural safeguards are, in my view, required to counterbalance the appearance of impropriety which may otherwise result. Thus, in that regard, it is those safeguards that are decisive.

68.

Those findings can, in my view, also be applied to the present case. In all cases, including those where the body in charge of deciding the appointment or promotion of national judges appears to be well-placed to perform those functions, what is decisive from the perspective of judicial independence is not so much the question of who conducts a promotion procedure such as that put in place by the contested regulation, but rather whether the criteria applied by the body in charge of conducting such a procedure are sufficiently clear, objective and verifiable, ( 72 ) and whether that body is obliged to state reasons for its decisions. Whether or not the decisions can be challenged in court proceedings is also relevant. ( 73 )

69.

With that said, I will turn to examining whether, in a situation such as that at issue in the main proceedings, the criteria which the selection board must apply meet those requirements.

70.

In the present case, it is, as I have already emphasised, for the referring court to verify whether the criteria applied by the selection board as part of the ‘effective promotion’ procedure fulfil the requirements which I have set out in point 68 above or, on the contrary, are likely to confer ‘undue discretion’ on its members, such as to give rise to reasonable doubt in the minds of individuals as to the independence of the judges of lower courts concerned by that procedure. Undue discretion exists, in particular, when the modalities surrounding a particular procedure or the criteria applied when conducting that procedure are not prescribed by law (and, thus, are not verifiable), are vague or irrelevant or allow speculation about the influence of political or other forces (for example, when the criteria applied are not sufficiently objective). ( 74 )

71.

Within that context, it seems to me that several elements from the case file deserve particular mention.

72.

First, the ‘effective promotion’ procedure is subject to two distinct and clearly laid out sets of criteria. Indeed, pursuant to the contested regulation, three criteria must be taken into account for the evaluation of the candidates’ work: (i) the ability to analyse and to summarise; coherence of self-expression; (ii) the clarity and logic of the reasoning; the analysis of the arguments of the parties’ submissions and defences; compliance with the case-law of the Înalta Curte de Casație şi Justiție (High Court of Cassation and Justice) and of the courts of appeal; and (iii) respect for reasonable deadlines for processing cases and writing decisions. ( 75 ) Furthermore, for the assessment of the candidates’ conduct, two criteria are relied upon: (i) the appropriateness of the attitude or conduct of the candidate towards litigants, lawyers, experts and interpreters during hearings and other professional activities, and his or her ability to handle situations arising in the courtroom, and (ii) the candidate’s ability to cooperate with other members of the bench and to communicate with other judges and staff. ( 76 ) Those criteria are clearly listed in the contested regulation and are, thus, verifiable. Furthermore, they are all relevant for the purposes of forming a view as to the candidates’ judicial activity and merit. ( 77 )

73.

Second, as regards the question of whether such criteria are sufficiently objective, I note that, in order to check whether the first two criteria are fulfilled, the selection board uses a sample of 10 decisions handed down by the candidates over the preceding three years. ( 78 ) Those decisions are selected at random, using a computer software, and on the basis, again, of uniform criteria. ( 79 ) Moreover, in order to evaluate the candidates’ aptitudes against the various criteria relating to their conduct, the selection board looks at a sample of recordings of hearings presided over by each candidate. ( 80 ) The board also considers information in the candidates’ professional file, information available from the Inspecția Judiciarâ (Judicial Inspectorate, Romania) on possible disciplinary and ethical breaches for the relevant period, as well as any other verifiable information about the candidates. ( 81 )

74.

Of course, it cannot be excluded, and is even inevitable, that some degree of subjectivity comes into play when the selection board interprets those various elements for the purposes of forming an opinion on the candidates’ work and conduct. However, the fact remains, in my view, that the sources of information and evidence upon which the members of the selection board must base their decision in relation to each candidate are rather numerous and diverse. That contributes to making the overall ‘effective promotion’ procedure appear to be based a priori on an objective, rather than discretionary, assessment.

75.

Third, I note that, as it appears from the case file, the contested regulation also provides for the selection board to take into account the reasoned opinions of the section in which each candidate sits at the time where the promotion procedure is conducted ( 82 ) and of the one corresponding to his or her specialisation in the hierarchically superior court, in order to reach a decision as to which candidates shall benefit froma promotion. ( 83 ) In that regard, the Court has suggested that the intervention of another body in the procedure leading to the adoption of such decisions may, in principle, contribute to making that procedure more objective. Of course, that is only the case in so far as that body is itself independent of the legislative and executive authorities and of the authority or body to which it is required to deliver its opinion, and in so far as such an opinion is delivered on the basis of criteria which are both objective and relevant and is properly reasoned, so as to be appropriate for the purposes of providing objective information upon which that authority or body can take its decision. ( 84 ) Naturally, it is for the referring court to verify whether that is the case.

76.

Finally, concerning the obligation for the selection board to state reasons and the possibility of challenging the decisions reached by that board in court proceedings, I note that, once the procedure is completed, the selection board must draft a reasoned report indicating the marks awarded for the five criteria mentioned above, as well as the overall mark obtained by the candidate. ( 85 ) Furthermore, if the candidate has any objections to that report, he or she is entitled to raise them during an interview with the selection board, which is held in all cases, as well as in writing. ( 86 ) The candidate also has 48 hours from the date of the publication of the results to challenge the mark obtained before the Section for Judges of the SCM, which will then consider whether a new evaluation is required and, as the case may be, itself carry out a new evaluation. ( 87 )

77.

In my view, all of those elements, taken together, appear to confirm the absence of a real risk of ‘undue discretion’ giving rise to a reasonable doubt in the minds of individuals as to the independence of the judges concerned. It is, however, for the referring court to verify whether that is indeed the case. Subject to such verifications, I am inclined not to share the concerns expressed by the applicants in the main proceedings as to the lack of objectivity of the criteria applied by the selection board.

78.

As such, I consider that the principle of judicial independence, which is enshrined in Article 47 of the Charter and the second subparagraph of Article 19(1) TEU, read in conjunction with Article 2 TEU, is not infringed by the introduction of a procedure for the promotion of national judges to a higher court which is based on an assessment of their work and conduct by a board composed of the president and judges of such higher court, which, in addition to that assessment, review on appeal the decisions handed down by the judges of lower courts and carry out periodic evaluations of those judges once and if they are promoted to the relevant higher court. However, even where the members of that board are themselves independent, the criteria applied by them must be sufficiently objective, relevant and verifiable so as not to create reasonable doubt in the minds of individuals as to the imperviousness of the judges of lower courts concerned to external interventions or pressure liable to impair their independent judgment and to influence their decisions, and the board is obliged to state reasons for its decisions. Another relevant factor in that regard is the possibility for those judges to challenge decisions affecting their promotion before a court. ( 88 )

79.

It remains for me to examine whether the reform introduced by the contested regulation breaches any provision of the CVM Decision or fails to take account of the recommendations set out in the reports drawn up by the Commission in application thereof (Question 4).

80.

In that regard, I note that the CVM Decision does not impose any specific obligations on Romania other than the obligation to report its progress as to the implementation of the CVM benchmarks and to reform its judicial system in accordance with those benchmarks. Furthermore, as the Commission itself explains, none of the reports it produced in application of the CVM, whether before the adoption of the contested regulation or after, contain specific recommendations regarding procedures for the promotion of judges of lower courts in Romania.

81.

In fact, the Commission adopted its last report in application of the CVM on 22 November 2022. ( 89 ) In that report, it acknowledged that the modification of the promotion procedure brought about by the contested regulation had been criticised by some magistrates’ associations and civil society organisations, who argue that the meritocratic and competitive character of the procedure has been reduced. However, it did not point to any specific issue, nor did it formulate any recommendation concerning the promotion procedure for judges.

82.

Having said that, it seems to me that the fourth question raised by the referring court asks, as an underlying question, whether, precisely because the CVM reports published before the adoption of the contested regulation do not contain such recommendations, it should be understood that Romania was precluded from modifying its procedure for promotions. In other words, the silence of the reports on the issue should be read as an obligation for Romania not to change the status quo.

83.

I do not believe that such an approach would be the correct one. In my view, Romania remains free, within the context of the application of the CVM, to organise its judiciary system as it sees fit so long as it takes account of the recommendations set out in the Commission’s reports adopted in application of that mechanism and ensures that all the reforms that it adopts within that context comply with the CVM benchmarks and other EU law requirements, in general. Here, again, in line with what I stated in point 42 above, the purpose is not to dictate to Romania a specific model for the organisation of its judiciary, but rather to ensure that certain safeguards are put in place within the model that it wishes to adopt. In that regard, it is, thus, in my view, immaterial that the previous promotion procedure had remained unchanged for more than 10 years: Romania was permitted to change it. ( 90 )

84.

In the light of the foregoing, I propose that the Court answer the questions referred for a preliminary ruling by the Curtea de Apel Ploieşti (Court of Appeal, Ploieşti, Romania) as follows: