judgment in
56.In the judgment in Asociaţia Forumul Judecătorilor din România the Court clearly indicated the circumstances in which an entity such as the SIIJ would not comply with the requirements of Article2 and the second subparagraph of Article19(1) TEU and Decision 2006/928.(19) The Court also restated its settled case-law on the principle of the primacy of EU law in accordance with which any national court, hearing a case within its jurisdiction, has the obligation to disapply any provision of national law– whether it is of a legislative or a constitutional status, as interpreted by the constitutional court– which is contrary to a provision of EU law having direct effect.(20)
57.Given that the second subparagraph of Article19(1) TEU and the benchmarks set out in Decision 2006/928 have direct effect,(21) the Court held that a national court will be required, within the limits of its jurisdiction, to ensure the full effectiveness thereof by disapplying, if necessary, any conflicting provisions of national law.(22)
58.I do not propose to revisit the case-law of the Court either on the conformity of an entity such as the SIIJ with EU law or of the specific application of the direct effect and the primacy of EU law in the judgment in Asociaţia Forumul Judecătorilor din România. The two parameters(23) laid down in paragraph223 of that judgment in order to assess the conformity of the SIIJ with EU law are clear. Moreover, the duty, in accordance with the principles of direct effect and the primacy of EU law, to disapply national legislation, administrative practices or case-law that are contrary to EU law owed by all organs of the State– such as the national courts, including national constitutional courts, and administrative authorities– called upon, within the exercise of the powers conferred upon them, to apply EU law, is abundantly clear.(24)
59.It is thus well settled that any provision of a national legal system and any legislative, administrative or judicial practice, whether by a constitutional court or otherwise, which might impair the effectiveness of EU law by withholding from the national court having jurisdiction to apply such law the power to do everything necessary at the moment of its application to disregard national legislative provisions or national case-law which might prevent directly applicable EU rules from having full force and effect are incompatible with the requirements which are the very essence of EU law.(25)
60.Moreover, in a case such as the present, the national court, having exercised the discretion conferred on it by the second paragraph of Article267 TFEU to make a preliminary reference to the Court, is bound, for the purposes of the decision to be given in the main proceedings, by the interpretation of the provisions at issue given by the Court and must, if necessary, disregard the rulings of a higher court or indeed of a national constitutional court where it considers, having regard to that interpretation, that those provisions are inconsistent with EU law.(26)
61.The Romanian Government indicated in its written observations that the two conditions laid down by the Curtea Constituțională (Constitutional Court) in Decision No390/2021 in order for EU law to have primacy over the Romanian Constitution are met in relation to the second subparagraph of Article19(1) TEU. Thus, according to that government, the second subparagraph of Article19(1) TEU is sufficiently clear, accurate and unequivocal and is of a certain level of constitutional relevance so that its regulatory content may substantiate any potential breach of the Constitution by national law. While that may well be true, it fails to recognise that the Court, in paragraph249 of the judgment in Asociaţia Forumul Judecătorilor din România, held that the benchmarks set out in Decision 2006/928 have direct effect. Thus paragraph251 of that judgment held that where it is proved that the second subparagraph of Article19(1) TEU or Decision 2006/928 has been infringed, the principle of the primacy of EU law requires the referring court to disapply the national provisions contrary thereto, irrespective as to whether they are of legislative or of constitutional origin.
62.The duty to disapply national legislation, administrative practices or case-law of whatever nature that are contrary to EU law is a concrete expression of the operation of both the principle of conferral under Articles4(1) and 5 TEU and the principle of sincere cooperation under Article4(3) TEU.(27) Save in exceptional circumstances, that duty does not impinge on the national identity of a Member State, inherent for example in their fundamental structures, political and constitutional(28) which must be respected in accordance with Article4(2) TEU(29) and the third paragraph in the preamble to the Charter. In instances where a Member State invokes national identity in order to justify non-compliance with provisions of EU law, the Court will examine whether those provisions in fact pose a genuine and sufficiently serious threat to a fundamental interest of the society, or the fundamental structures, political and constitutional, of a Member State.(30) Vague, general and abstract assertions do not reach that threshold. Indeed, it appears from the request for a preliminary ruling that the Curtea Constituțională (Constitutional Court) itself has not identified what aspect of national identity the judgment in Asociaţia Forumul Judecătorilor din România impinges upon.
63.Accordingly the sweeping assertion by the Curtea Constituțională (Constitutional Court) that the referring court describes in its reference for a preliminary ruling, to the effect that EU law does not have primacy over the Romanian Constitution with the result that Romanian courts have no power to examine the conformity with EU law of a provision of domestic law that has been held to be constitutional by the Curtea Constituțională (Constitutional Court), is too broad and unfocused to reflect a considered manifestation of national identity on the part of a Member State of the European Union pursuant to Article4(2) TEU.(31)
64.In any event, all assertions of national identity must respect the common values referred to in Article2 TEU(32)and be founded upon the indivisible, universal values referred to in the second paragraph in the preamble to the Charter.(33) In those instances the rule of law(34) and effective judicial protection take centre stage. It is to that question that I shall now turn.
65.Prior to so doing, I would observe that the tenor of the ruling of the Curtea Constituțională (Constitutional Court) in Decision No390/2021 is such as to raise serious doubts about that court’s adherence to the essential principles of EU law as interpreted by the Court in the judgment in Asociaţia Forumul Judecătorilor din România. Moreover, the Curtea Constituțională (Constitutional Court) did not request a preliminary ruling from the Court of Justice under the third paragraph of Article267 TFEU in order to avert the risk of an incorrect interpretation of EU law.
66.In that regard, in its judgment of 4October 2018, Commission v France (Advance payment) (C‑416/17, EU:C:2018:811, paragraphs107 to 109), the Court recalled that a Member State’s failure to fulfil obligations may, in principle, be established under Article258 TFEU whatever State agency whose action or inaction gives rise to the failure to fulfil its obligations, including constitutionally independent institutions. Where there is no judicial remedy against the decision of a national court, that court is in principle obliged to make a reference within the meaning of the third paragraph of Article267 TFEU where a question of the interpretation of the FEU Treaty is raised before it. That obligation to make a reference is intended in particular to prevent a body of national case-law that is not in accordance with the rules of EU law from being established in any of the Member States. The Court held that, since the Conseil d’État (Council of State, France) had failed to make a reference in accordance with the procedure provided for in the third paragraph of Article267 TFEU in order to determine a particular issue which was not so obvious as to leave no scope for doubt, the French Republic failed to fulfil its obligations thereunder.
67.At the hearing on 23November 2021, the Romanian Government confirmed that the Curtea Constituțională (Constitutional Court) is a court of last instance when it rules on questions pertaining to the Romanian Constitution.
B.Applicable provisions of EU law
68.The Court in recent years has had occasion to rule on the principle of the independence of the judiciary of the Member States in the application of EU law and the interplay between Article2 TEU, Article19(1) TEU, Article267 TFEU and Article47 of the Charter.(35) The recent origins of that case-law can be traced back to the judgment of 27February 2018, Associação Sindical dos Juízes Portugueses (C‑64/16, EU:C:2018:117). While that judgment is an important milestone in the development of the Court’s case-law in that area, it did not, in my view, establish any new concepts but rather reiterated a number of key principles already extant in the Court’s case-law.
69.As regards the applicable provisions of EU law, it is well established that Article19 TEU gives concrete expression to the value of the rule of law as affirmed by Article2 TEU. There is therefore no necessity to consider Article2 TEU separately.(36) In the EU legal order, Article19 TEU entrusts responsibility for judicial review to the Court of Justice and to national courts and tribunals. The guarantee of independence, inherent in the task of adjudication and essential to the proper working of the system of judicial cooperation embodied in Article267 TFEU, is thus required at both levels of the EU legal order.
70.Although the questions asked refer to the principle of the independence of the judiciary, there is no indication in the file before the Court that the independence of the referring court has in any way been compromised beyond the fetter placed by the Curtea Constituțională (Constitutional Court) in Decision No390/2021 and by Article99(ș) of Law No303/2004 on the application of EU law by the referring court. While the second subparagraph of Article19(1) TEU does not specifically refer to judicial independence, it is settled case-law that to ensure that bodies which may be called upon to rule on questions concerning the application or interpretation of EU law are in a position to ensure the effective judicial protection required under that provision, maintaining their independence is essential, as confirmed by the second paragraph of Article47 of the Charter, which refers to access to an ‘independent’ tribunal as one of the requirements linked to the fundamental right to an effective remedy. That requirement that courts be independent, which is inherent in the task of adjudication, forms part of the essence of the right to effective judicial protection and the fundamental right to a fair trial, which is of cardinal importance as a guarantee that all the rights which individuals derive from EU law will be protected and that the values common to the Member States set out in Article2 TEU, in particular that of the rule of law, will be safeguarded.(37) What is at stake is the ability of the referring court to provide remedies sufficient to ensure effective legal protection in the fields covered by EU law as prescribed by the second subparagraph of Article19(1) TEU(38) in the light of the limitations placed on it by Article148(2) of the Romanian Constitution, as interpreted by the Curtea Constituțională (Constitutional Court) in Decision No390/2021.
71.Article19 TEU entrusts the responsibility for ensuring the full application of EU law in all Member States and judicial protection of the rights of individuals under that law to both national courts and tribunals and to the Court.(39) Article19 TEU thus provides for a devolved system of justice where responsibility for the application of EU law is shared between the Court of Justice and the national courts.
72.The principle of the effective judicial protection of individuals’ rights under EU law, referred to in the second subparagraph of Article19(1) TEU, is a general principle of EU law which is now enshrined in Article47 of the Charter, so that the former provision requires Member States to provide remedies that are sufficient to ensure effective legal protection, within the meaning in particular of the latter provision, in the fields covered by EU law.(40) Thus, on the one hand, the Court, in its judgment of 20April 2021, Repubblika,(41)held that the second subparagraph of Article19(1) TEU is intended to apply in the context of an action the purpose of which is to challenge the conformity with EU law of provisions of national law which, it is alleged, are liable to affect judicial independence. On the other hand, Article47 of the Charter enshrines the right to an effective remedy before a tribunal for every person whose rights and freedoms guaranteed by EU law are infringed.
73.Given that it is unclear from the request for a preliminary ruling whether RS, in the dispute in the main proceedings, is relying on a right conferred on him by a provision of EU law, it would appear that, in accordance with Article51(1) of the Charter,(42) Article47 thereof may not, as such, be applicable to the dispute in the main proceedings. However, since the second subparagraph of Article19(1) TEU requires all Member States to provide remedies sufficient to ensure effective judicial protection in the fields covered by EU law, within the meaning in particular of Article47 of the Charter, that latter provision must be taken into consideration for the purposes of interpreting the second subparagraph of Article19(1) TEU.(43)
C.Effective legal protection by an independent judiciary
74.It appears from the request for a preliminary ruling that the Curtea de Apel Craiova (Court of Appeal, Craiova), which has responsibility for matters relating to rights and freedoms, is seised of a complaint lodged by RS concerning the duration of criminal proceedings before the SIIJ. Nothing in the file before the Court indicates that the referring court does not have jurisdiction to deal with that complaint.
75.It also appears that, in accordance with Article148(2) of the Romanian Constitution, as interpreted by the Curtea Constituțională (Constitutional Court) in Decision No390/2021, national courts may not examine the conformity with EU law of a provision of national law that has been found to be constitutional by a decision of the Curtea Constituțională (Constitutional Court). Thus national law effectively bars the referring court from assessing whether the establishment and functioning of the SIIJ comply with EU law and, where necessary and appropriate, in accordance inter alia with the indications given by the Court in the judgment in Asociaţia Forumul Judecătorilor din România, from disapplying the relevant provisions of national law at issue in accordance with the principles of primacy of EU law and direct effect.
76.That situation is aggravated by the potential threat, pursuant to Article99(ș) of Law No303/2004, to initiate disciplinary proceedings against and to apply disciplinary penalties to a judge for failure to comply with a decision of the Curtea Constituțională (Constitutional Court).(44)
77.It is settled case-law that while the organisation of justice in the Member States falls within the competence of the Member States, they are required to comply with their obligations deriving from EU law and, in particular, from the second subparagraph of Article19(1) TEU.(45)
78.The Court has consistently held that any national court hearing a case within its jurisdiction has, as an organ of a Member State, the obligation, pursuant to the principle of cooperation set out in Article4(3) TEU, to apply in full directly applicable EU law and to protect the rights which the latter confers upon individuals, disapplying any provision of national law which may be to the contrary, whether the latter is prior to or subsequent to the EU legal rule.(46)
79.In my view, the same obligation flows directly from the second subparagraph of Article19(1) TEU, which requires(47)Member States to provide remedies sufficient to ensure effective legal protection in the fields covered by Union law. National courts must therefore ensure the full application of EU law in all Member States and provide remedies sufficient to ensure effective legal protection.(48) The nature of the remedy to be provided by the national courts depends on whether the EU act or measure has direct effect. Where the act or measure does not entail direct effect, its binding character nevertheless places on national courts an obligation to interpret national law in conformity with EU law.(49) In certain circumstances, a failure to comply with that obligation can ground an action for damages against the State.(50)
80.The second subparagraph of Article19(1) TEU is thus a concrete manifestation of the principle of the primacy of EU law in the Treaty on European Union.(51)
81.The second subparagraph of Article19(1) TEU also requires that national courts called upon to rule on issues linked to the interpretation and application of EU law are independent. That is confirmed by the second paragraph of Article47 of the Charter, which refers to access to an ‘independent’ tribunal as a requirement of the fundamental right to an effective remedy.(52) The courts concerned must thus be in a position to exercise their functions autonomously, without being subject to any hierarchical constraint or subordinated to any other body and without taking orders or instructions from any source whatsoever. Only by this means are they protected against external intervention or pressure that may be liable to impair their independent judgment and to influence the content and outcome of their decisions.(53)
82.Amongst those prohibited external interventions or pressure are rulings of a national constitutional court, such as that of the Curtea Constituțională (Constitutional Court) in Decision No390/2021, which purports to prevent other national courts– acting within the jurisdiction granted to them under national law– to ensure the full application of EU law and the judicial protection of the rights of individuals thereunder.
83.The Curtea Constituțională (Constitutional Court) in Decision No390/2021 has, in my view, unlawfully arrogated competence to itself in breach of the second subparagraph of Article19(1) TEU, in breach of the principle of primacy of EU law and in breach of the fundamental requirement of an independent judiciary.
84.A rule or practice of national law, pursuant to which legal rulings of a constitutional court bind another national court having jurisdiction, in accordance with national law, to apply EU law, cannot deprive the latter court of its independent mandate to apply that law and to ensure effective legal protection in the fields covered by Union law. Such rules and practices impair the effectiveness of EU law and are incompatible with the very essence of EU law, including the rule of law enshrined in Article2 TEU.(54) In that regard, it must be recalled that in its judgment of 27February 2018, Associação Sindical dos Juízes Portugueses (C‑64/16, EU:C:2018:117, paragraph36), the Court stated that the very existence of effective judicial review designed to ensure compliance with EU law is of the essence of the rule of law.
85.I therefore consider that the principle of the independence of the judiciary, enshrined in the second subparagraph of Article19(1) TEU, read in conjunction with Article2 TEU and Article47 of the Charter, precludes a provision or a practice of national law according to which national courts of a Member State have no jurisdiction to examine the conformity with EU law of a provision of national law that has been found to be constitutional by a decision of the constitutional court of that Member State. A fortiori, that same principle precludes the initiation of disciplinary proceedings and the application of disciplinary penalties in respect of a judge arising from such an examination.
VII.Conclusion
86.In the light of the above considerations, I propose that the Court answer the questions posed by the Curtea de Apel Craiova (Court of Appeal, Craiova, Romania) as follows:
The principle of the independence of the judiciary, enshrined in the second subparagraph of Article19(1) TEU, read in conjunction with Article2 TEU and Article47 of the Charter of Fundamental Rights of the European Union, precludes a provision or a practice of national law of a Member State according to which national courts have no jurisdiction to examine the conformity with EU law of a provision of national law that has been found to be constitutional by a decision of the constitutional court of that Member State. That same principle precludes the initiation of disciplinary proceedings and the application of disciplinary penalties in respect of a judge arising from such an examination.
1Original language: English.
2Which concerned the interpretation of Article2, Article4(3), Article9 and the second subparagraph of Article19(1) TEU, Article67(1) and Article267 TFEU, Article47 of the Charter and Commission Decision 2006/928/EC of 13December 2006 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 (OJ 2006 L354, p.56).
3See point5 of the operative part of that judgment.
4Decision No390 of 8June 2021 concerning an objection of unconstitutionality raised in respect of Articles881 to 889 of Law No304/2004 on the organisation of the judiciary, as well as in respect of Government Emergency Ordinance No90/2018 introducing certain measures relating to the functioning of the Section for Investigation of Offences Committed within the Judiciary (Secţia pentru investigarea infracţiunilor din justiţie), published in Monitorul Oficial al României (Official Gazette of Romania) No612 of 22June 2021 (‘Decision No390/2021’).
5Official Gazette of Romania, partI, No826 of 13September 2005.
6See Decision No390/2021, paragraph81.
7See Decision No390/2021, paragraph83.
8See Decision No390/2021, paragraph85.
9Order of the President of the Court of 19October 2018, Wightman and Others (C‑621/18, not published, EU:C:2018:851, paragraph10 and the case-law cited).
10Judgment of 26March 2020, Miasto Łowicz and Prokurator Generalny (C‑558/18 and C‑563/18, EU:C:2020:234, paragraphs43 to 45 and the case-law cited).
11See the judgment in Asociaţia Forumul Judecătorilor din România, paragraph133 and the case-law cited.
12The Court stated first, that the disputes in the main proceedings were not substantively connected to EU law, in particular to the second subparagraph of Article19(1) TEU to which the questions referred related. The referring courts were not therefore required to apply that law, or that provision, in order to determine the substance of the disputes before them. It stated, secondly, that the questions referred did not concern the interpretation of procedural provisions of EU law which the referring courts were required to apply in order to deliver judgment. Thirdly, an answer by the Court to the questions referred was incapable of providing the referring courts with an interpretation of EU law that would allow them to resolve procedural questions of national law before being able to rule on the substance of the disputes before them. Judgment of 26March 2020, Miasto Łowicz and Prokurator Generalny (C‑558/18 and C‑563/18, EU:C:2020:234, paragraphs49 to 53).
13Judgment of 26March 2020, Miasto Łowicz and Prokurator Generalny (C‑558/18 and C‑563/18, EU:C:2020:234, paragraph54). Despite finding that the questions in the cases giving rise to that judgment were inadmissible, the Court held that provisions of national law that expose national judges to disciplinary proceedings as consequence of submitting a reference to the Court for a preliminary ruling are impermissible. The mere prospect of being the subject of disciplinary proceedings by reason of making such a reference is likely to undermine the effective exercise by national judges of their discretion to refer matters to the Court and the functions of the referring court as regards the application of EU law. Judgment of 26March 2020, Miasto Łowicz and Prokurator Generalny(C‑558/18 and C‑563/18, EU:C:2020:234, paragraph58). The Court further observed that, in such circumstances, the national measure or practice could ground an action for failure to fulfil obligations. Judgment of 26March 2020, Miasto Łowicz and Prokurator Generalny (C‑558/18 and C‑563/18, EU:C:2020:234, paragraph47).
14See the approach proposed in the Opinion of Advocate General Bobek in IG and Others (C‑379/19, EU:C:2021:174, point40).
15See by analogy, judgment of 20April 2021, Repubblika(C‑896/19, EU:C:2021:311, paragraph33).
16In his Opinion in IG and Others(C‑379/19, EU:C:2021:174, point40) Advocate General Bobek considered that questions relating to the disciplinary liability of national judges who have made a request for a preliminary ruling are ‘necessary’ to adjudicate upon the proceedings before them where that liability may be triggered as there would be few preliminary references otherwise. See by analogy, judgment of 5July 2016, Ognyanov(C‑614/14, EU:C:2016:514, paragraph25). In contrast, in his opinion in IS (Illegality of the order for reference) (C‑564/19, EU:C:2021:292, point97), Advocate General Pikamäe considered that a question referred for preliminary ruling as to whether Article19(1) TEU, Article47 of the Charter and Article267 TFEU must be interpreted as precluding a national law which allows disciplinary proceedings to be brought against a judge on the ground that he or she submitted a request for a preliminary ruling to the Court was inadmissible where the main proceedings did not concern bringing disciplinary proceedings against the referring judge, the status of the judiciary, or provisions concerning the disciplinary regime for judges. Moreover, in that case, a decision to initiate disciplinary proceedings had been withdrawn and the proceedings terminated. Advocate General Pikamäe also conceded that the question relating to disciplinary proceedings might be admissible where it could not be disassociated from another, admissible, question by treating both questions together as an ‘indivisible whole’. Opinion of Advocate General Pikamäe in IS (Illegality of the order for reference)(C‑564/19, EU:C:2021:292, point98).
17See also judgment of 21December 2021, Euro Box Promotion andOthers (C‑357/19, C‑379/19, C‑547/19, C‑811/19 and C‑840/19, EU:C:2021:1034, paragraph140). In Case C‑379/19, which arose in the context of criminal proceedings relating inter alia to corruption offences, the defendants sought to exclude evidence in accordance with the rulings in a number of judgments of the Curtea Constituțională (Constitutional Court). The referring court had doubts as to the compatibility of those judgments– non-compliance with which may make the judges taking part in the decision liable to disciplinary action pursuant to Article99(ș) of Law No303/2004– with the requirement of independence of the courts. The referring court decided to refer questions to the Court of Justice, on the interpretation of inter alia the second subparagraph of Article19(1) TEU. The Court held those questions admissible.
18Judgment of 11December 2018, Weiss and Others (C‑493/17, EU:C:2018:1000, paragraph19 and the case-law cited).
19See the judgment in Asociaţia Forumul Judecătorilor din România, paragraph223.
20By virtue of the principle of the primacy of EU law, a Member State’s reliance on rules of national law, even of a constitutional order, cannot be allowed to undermine the unity and effectiveness of EU law. In accordance with well-established case-law, the effects of the primacy of EU law are binding on all Member State organs, without being impeded by provisions of domestic law, including constitutional provisions. Judgments of 8September 2010, Winner Wetten(C‑409/06, EU:C:2010:503, paragraph61), and of 6October 2021, W.Ż. (Chamber of Extraordinary Control and Public Affairs of the Supreme Court– Appointment) (C‑487/19, EU:C:2021:798, paragraph157). See also the judgment in Asociaţia Forumul Judecătorilor din România, paragraphs243 et seq. in particular paragraph251 and the case-law cited.
21The Court stated that the second subparagraph of Article19(1) TEU imposes on the Member States a clear and precise obligation as to the result to be achieved. That obligation is not subject to any condition as regards the independence that must characterise courts called upon to interpret and apply EU law. The judgment in Asociaţia Forumul Judecătorilor din România, paragraph250 and the case-law cited.
22The judgment in Asociaţia Forumul Judecătorilor din România, paragraphs242 to 252.
23Based on Article2 and the second subparagraph of Article19(1) TEU and Decision 2006/928.
24Judgment of 14September 2017, Trustees of the BT Pension Scheme(C‑628/15, EU:C:2017:687, paragraph54).
25See to that effect, judgment of 9March 1978, Simmenthal (106/77, EU:C:1978:49, paragraph22). For a more recent iteration of the rule see the order of the Vice-President of the Court of 14July 2021, Commission v Poland (C‑204/21R, EU:C:2021:593, paragraph173).
26See by analogy, judgment of 5October 2010, Elchinov (C‑173/09, EU:C:2010:581, paragraph30).
27See by analogy, judgments of 19November 2019, A.K. and Others (Independence of the Disciplinary Chamber of the Supreme Court) (C‑585/18, C‑624/18 and C‑625/18, EU:C:2019:982, paragraph166), and of 2March 2021, A.B. and Others (Appointment of judges to the Supreme Court– Actions) (C‑824/18, EU:C:2021:153, paragraph79). In paragraph173 of the Opinion 2/13 (Accession of the European Union to the ECHR) of 18December 2014 (EU:C:2014:2454), the Court recalled that the Member States are obliged, by reason, inter alia, of the principle of sincere cooperation set out in the first subparagraph of Article4(3) TEU, to ensure, in their respective territories, the application of and respect for EU law. In addition, pursuant to the second subparagraph of Article4(3) TEU, the Member States are to take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the EU.
28Including, for example, the status of the State as a Republic (judgment of 22December 2010, Sayn-Wittgenstein (C208/09, EU:C:2010:806, paragraph92)) and the division of competences within a Member State together with the internal reorganisation of those powers (judgments of 21December 2016, Remondis(C‑51/15, EU:C:2016:985, paragraphs40 and 41), and of 18June 2020, Porin kaupunki (C‑328/19, EU:C:2020:483, paragraph46)).
29Judgment of 5June 2018, Coman and Others (C‑673/16, EU:C:2018:385, paragraph43).
30While the Curtea Constituțională (Constitutional Court) specifically refers to ‘constitutional identity’, in my view, the term national identity referred to in Article4(2) TEU is an umbrella concept which may cover both societal/cultural and political/constitutional identity. Reliance on national identity under Article4(2) TEU does not, however, permit a Member State to diverge from the core, fundamental values contained in Article2 TEU, including the rule of law. The protection of national identity therefore will not justify non-compliance with those values. Moreover, national identity, in the guise of constitutional identity, is incapable of constituting an absolute exception to or reservation from the principle of primacy of EU law.
31See by analogy, judgment of 5June 2018, Coman and Others (C‑673/16, EU:C:2018:385, paragraphs44 and 46).
32It is settled case-law, as is apparent from Article49 TEU, which provides the possibility for any European State to apply to become a member of the European Union, that the European Union is composed of States which have freely and voluntarily committed themselves to the common values referred to in Article2 TEU, which respect those values and which undertake to promote them. EU law is based on the fundamental premiss that each Member State shares with all the other Member States, and recognises that those Member States share with it, those same values. Judgment of 24June 2019, Commission v Poland (Independence of the Supreme Court) (C‑619/18, EU:C:2019:531, paragraph42 and the case-law cited).
33See to that effect, Opinion of Advocate General Kokott in V.М.А.(C‑490/20, EU:C:2021:296, point73). See also by analogy, judgment of 5June 2018, Coman and Others (C‑673/16, EU:C:2018:385, paragraph47).
34The fact that the European Community/Union is based on the rule of law was first mentioned in the case-law of the Court in judgment of 23April 1986, Les Verts v Parliament(294/83, EU:C:1986:166, paragraph23).
35For a systematic and up-to-date overview of the recent case-law of the Court, see Pech, L., and Kochenov, D., 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, Stockholm, 2021:3.
36Judgment of 9July 2020, Land Hessen (C‑272/19, EU:C:2020:535, paragraph45 and the case-law cited).
37The judgment in Asociaţia Forumul Judecătorilor din România, paragraphs194 and 195 and the case-law cited.
38As regards the material scope of the second subparagraph of Article19(1) TEU, that provision refers to the ‘fields covered by Union law’, irrespective of whether the Member States are implementing Union law within the meaning of Article51(1) of the Charter. Thus, the second subparagraph of Article19(1) TEU is intended inter alia to apply to any national court or tribunal which can rule on questions concerning the application or interpretation of EU law in the fields covered by that law (judgment of 26March 2020, Miasto Łowicz and Prokurator Generalny, C‑558/18 and C‑563/18, EU:C:2020:234, paragraphs33 and 34 and the case-law cited). The scope of Article47 of the Charter, in so far as the action of the Member States is concerned, is defined in Article51(1) thereof, according to which the provisions of the Charter are addressed to the Member States when they are implementing EU law. Judgment of 14June 2017, Online Games and Others(C‑685/15, EU:C:2017:452, paragraph55).
39Judgment of 19November 2019, A.K. and Others (Independence of the Disciplinary Chamber of the Supreme Court)(C‑585/18, C‑624/18 and C‑625/18, EU:C:2019:982, paragraph167 and the case-law cited).
40Judgment of 19November 2019, A.K. and Others (Independence of the Disciplinary Chamber of the Supreme Court) (C‑585/18, C‑624/18 and C‑625/18, EU:C:2019:982, paragraph168 and the case-law cited). The principle of the effective judicial protection of individuals’ rights under EU law, referred to in the second subparagraph of Article19(1) TEU, is a general principle of EU law stemming from the constitutional traditions common to the Member States, enshrined in Articles6 and 13 of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4November 1950, and reaffirmed by Article47 of the Charter. Judgments of 2March 2021, A.B. and Others (Appointment of judges to the Supreme Court– Actions)(C‑824/18, EU:C:2021:153, paragraph110) and of 21December 2021, Euro Box Promotion andOthers (C‑357/19, C‑379/19, C‑547/19, C‑811/19 and C‑840/19, EU:C:2021:1034, paragraph219).
41Judgment of 20April 2021, Repubblika (C‑896/19, EU:C:2021:311, paragraphs39 to 45).
42Which requires that Member States implement EU law in order for the Charter to apply.
43See by analogy, judgment of 20April 2021, Repubblika (C‑896/19, EU:C:2021:311, paragraphs42 to 45). While Article47 of the Charter helps to ensure respect for the right to effective judicial protection of any individual relying, in a given case, on a right which he or she derives from EU law, the second subparagraph of Article19(1) TEU seeks to ensure that the system of legal remedies established by each Member State guarantees effective judicial protection in the fields covered by EU law. Judgment of 20April 2021, Repubblika(C‑896/19, EU:C:2021:311, paragraph52).
44Recent case-law appears to countenance that safeguarding judicial independence does not exclude any possibility that a judge may, in certain very exceptional cases, be liable to discipline as a consequence of his or her judicial decisions: judgment of 21December 2021, Euro Box Promotion andOthers (C‑357/19, C‑379/19, C‑547/19, C‑811/19 and C‑840/19, EU:C:2021:1034, paragraphs238 to 240 and the case-law cited). In that judgment, the Court found that the impact of Article99(ș) of Law No303/2004, which makes ordinary national judges liable to discipline for a failure to comply with decisions of the Curtea Constituțională (Constitutional Court), is not limited to such very exceptional cases. The Court thus held that Article2, the second subparagraph of Article19(1) TEU and Decision 2006/928 preclude provisions of national law such as Article99(ș) of Law No303/2004 in so far as it provides that any infringement of the decisions of a national constitutional court by ordinary national judges imposes disciplinary liability upon them. Judgment of 21December 2021, Euro Box Promotion andOthers (C‑357/19, C‑379/19, C‑547/19, C‑811/19 and C‑840/19, EU:C:2021:1034, paragraphs241 and 242). The Court also held that the primacy of EU law precludes disciplinary sanctions being imposed upon national judges where, in the exercise of their ordinary jurisdiction, they take the view, upon receipt of an answer to a request for a preliminary ruling under Article267 TFEU, that the case-law of its national constitutional court is contrary to EU law and proceeds to disappy it. Judgment of 21December 2021, Euro Box Promotion andOthers (C‑357/19, C‑379/19, C‑547/19, C‑811/19 and C‑840/19, EU:C:2021:1034, paragraph260).
45Judgment of 26March 2020, Miasto Łowicz and Prokurator Generalny (C‑558/18 and C‑563/18, EU:C:2020:234, paragraph36 and the case-law cited).
46Judgment of 21January 2021, Whiteland Import Export (C‑308/19, EU:C:2021:47, paragraph31 and the case-law cited).
47I would underscore the use of the imperative ‘shall’ in the text of the second subparagraph of Article19(1) TEU.
48Judgment of 6March 2018, Achmea (C‑284/16, EU:C:2018:158, paragraph36). For the link between Article4(3) TEU and the second subparagraph of Article19(1) TEU, see judgment of 27February 2018, Associação Sindical dos Juízes Portugueses (C 64/16, EU:C:2018:117, paragraphs34 and 35).
49Judgment of 21January 2021, Whiteland Import Export (C‑308/19, EU:C:2021:47, paragraph30 and the case-law cited).
50Judgment of 30September 2003, Köbler(C‑224/01, EU:C:2003:513, paragraph50).
51Article19(1) TEU also reflects the autonomous nature of the EU legal order. See judgment of 6March 2018, Achmea (C‑284/16, EU:C:2018:158, paragraphs33 to 36 and the case-law cited).
52See to that effect, judgment of 5November 2019, Commission v Poland (Independence of ordinary courts)(C‑192/18, EU:C:2019:924, paragraphs104 and 105 and the case-law cited).
53Judgment of 24June 2019, Commission v Poland (Independence of the Supreme Court) (C‑619/18, EU:C:2019:531, paragraphs71 and 72).
54See to that effect, judgment of 8September 2010, Winner Wetten (C‑409/06, EU:C:2010:503, paragraphs56 and57).