Measures introduced by Romania’s government to regulate judges do not guarantee their independence and are contrary to EU law, according to official legal advice given to Europe’s top court.
The opinion from the Advocate General comes ahead of a forthcoming ruling by the European Court of Justice (ECJ). It is not binding but is seen as largely influential.
The advice comes amid controversy over the rule of law in some EU states in central and eastern Europe. Romania remains under EU monitoring over laws which critics allege threaten judicial independence and decriminalise corruption.
It follows a request from several Romanian courts, which asked the ECJ to rule whether reforms brought in by Romania respected the rule of law and guaranteed judicial protection and independence.
This case concerns the Bucharest government’s appointment of an interim Chief Judicial Inspector and the creation of a prosecution department with exclusive oversight of judges’ offences.
Michal Bobek, one of the ECJ’s Advocates General, advises the court in an official legal opinion that the moves do not offer sufficient guarantees and go against EU law.
The legal advice given to the European Court takes Romania to task over appointments to a judicial regulatory body, which it says mean that in practice people whose mandates had expired are reinstated.
It also says the new prosecution section, given sole powers to investigate judges, is unlawful as its creation was not transparent and there were inadequate guarantees against political interference.
Countries are free to regulate their own judges, the advice says, but there must be safeguards against undue pressure on the judiciary.
Bobek’s report says an EU safeguard measure brought in to ensure new member states respect the rule of law, is legally binding on those countries. Subsequent progress reports are not so, although they should be taken into account, it adds.
The current European Commission committed itself to tackle backsliding on commitments when it took office last year, and is due to publish its first rule of law report.
Some MEPs have called for offending countries’ access to EU funds to be restricted.
Earlier this year the European Court of Human Rights (ECHR), a non-EU body, ruled that Romania’s former anti-corruption chief Laura Codruța Kövesi had her human rights violated when she was ousted from office in 2018 for criticising the government’s anti-graft legislation.