Rôle différent, mêmes critères : le régime de la qualité pour agir des associations professionnelles de magistrats

There seems to be a new trend in the fight of dissident judges¹ and prosecutors to protect their independence from governments attacking the core principles of a democratic state based on the rule of law. Ever since the rule of law crisis started, they saw the Article 267 TFEU procedure as a way to resist such attacks. The ECJ responded positively with the seminal judgments that made Article 19(1) TEU a functional tool, against the Member States, for the protection of judicial independence² and of the preliminary rulings procedure.³ The Court also recalled the Member States’ obligation to avoid regression of laws,⁴ making a very clear connection with Article 49 TEU.5 However, it seems that, when approached via the Article 263(4) TFEU procedure by professional associations of judges and prosecutors, challenging EU institutions’ acts, the ECJ has a different approach.

Two recent General Court orders showcase this new development: the MEDEL case (Joined Cases T-530/22 to T-533/22) and the CVM case (T-1126/23). Those are actions for annulment of acts of the Council and the Commission respectively. In both cases, the General Court (GC) denied the applicants their request to expand the locus standicriteria to reflect their special position within the State and the European legal order. They are good to look in comparison because they show how the GC applied the very restrictive locus standi tests to two very different legal situations, thus further challenging the coherence of ECJ case law. In an attempt to shed light on the issue, this contribution proceeds as follows. First, a brief presentation of the MEDEL case, followed by an analysis of the specific status of the CVM.

MEDEL and Others v Council⁶

Several international associations of judges and a foundation brought an action for annulment of the amended Council Implementing Decision of 8 December 2023 approving Poland’s Recovery and Resilience Plan pursuant to Regulation (EU) 2021/241. The applicants deem milestones F1G, F2G and F3G of the plan incompatible with EU law claiming they substitute Poland’s obligations for the values of rule of law and effective judicial protection. These milestones require of Poland to strengthen the independence and impartiality of the judiciary and to remedy judges affected by the Disciplinary Chamber decisions.

The Grand Chamber of the General Court applied its well-known tests to ascertain whether the applicants had locus standi. It checked whether there was a legal provision explicitly granting procedural powers to the applicants; whether the association represents the interests of members who can themselves claim legal standing; and, whether the association can be distinguished individually because its own interests or its negotiating position were affected.

The applicants claimed that, since their mission was to defend the rule of law and independent judiciary and relying on their role as interlocutors for EU institutions in rule of law situations, they had ‘an institutional interest’ in the rule of law and independent judiciaries. They did not rely on any legal provision granting them procedural powers. Thus, the first condition was not fulfilled. The Grand Chamber found the argument of the applicants that, in their roles as observers in various Council of Europe bodies or as interveners in ECtHR proceedings, they were ‘interlocutors’ to the EU institutions insufficient to claim a negotiating status. Hence, the option of own interests also failed the test.

The last avenue was to claim representation of the interests of members who were themselves capable of obtaining legal standing. The GC explained that, since the contested act was addressed to Poland, it was necessary to apply the direct concern condition under the second and third limbs of Article 263(4) TFEU. The applicants claimed they represented judges who were subject to disciplinary decisions and were directly concerned by the implementation of the milestones. Lastly, they claimed that European judges were also directly affected by way of the principle of mutual trust.

Proving direct concern has been a very challenging exercise because it requires two cumulative conditions to be met: the legal situation of the applicant to be directly affected and the addressees of the act (Poland) to not have discretion in the implementation. For this test, the GC analysed the substance of the act starting with the legal basis of the original act (Regulation 2021/241), Article 175 TFEU, which concerns coordination of economic policies. The GC then proceeded with the general objective of the Recovery and Resilience Facility (RRF). It found that the contested milestones were, in fact, budgetary conditionality that did not intend to replace the values of the rule of law and effective judicial protection.

The GC found no direct link between the act the applicants wanted annulled and its effects on them. This argument is further supported by the finding that the contested milestones did not impose definitively specific obligations on Poland that could directly affect judges subjected to proceedings in the Disciplinary Chamber of the Polish Supreme Court. The GC concluded that the Council Implementing Decision did not alter directly their legal situation. Moreover, there was no ‘sufficiently close link’ between the milestones and the situation of the Polish judges.

The GC rejected the applicants’ request the locus standi conditions to be relaxed for them, arguing that this would, in fact, replace the system of judicial review under the Treaties. This, however, seems to suggest that the GC is putting all natural and legal persons under the same roof, ignoring the fundamental role judges and national courts play for the enforcement of EU law. After all, the applicants do not want a derogation from the requirements of direct concern per se, but an acknowledgment of the very specific situation individual judges and associations representing them find themselves in in captured judiciaries.

Discouraging as this outcome may seem, the challenged act still provided room for action and the Grand Chamber did remind the privileged applicants of their rights under Article 263 TFEU to bring an action in defence of the Polish judges. The GC also reminded the Commission of its role as a guardian of the Treaties and inviting it to act as such (paragraph 118), which, in the case of the RRF Implementing Decision, has the final word on whether Poland had met the milestones.

The CVM case⁷

While it might have indeed been an overstretch to grant locus standi even to organisations of judges in a case asking for the annulment of an act containing a budgetary conditionality not yet realised, the CVM case is of a very different nature. The action is for the annulment of Commission Decision 2023/1786 of 15 September 2023, repealing Commission Decision 2006/928/EC that established the cooperation and verification mechanism (CVM). The CVM was established in 2006 to enable the EU accession of Romania because it had failed to meet the accession criteria.

The CVM is based on Articles 37 and 38 of Romania’s Act of Accession but, as the CJEU said in its first ever judgment on the CVM, these have to be read in conjunction with Articles 2 and 49 TEU⁸, because the CVM objective was to complete Romania’s EU accession. The CVM is legally binding in its entirety, including the benchmarks in Annex I⁹. They cover issues from ensuring the transparency and accountability of the Superior Council of Magistracy, strengthening the agency responsible for conflicts of interest and the assets of high-level officials, to fighting high-level corruption. These significantly expand the range of issues than those falling within the scope of Article 19(1) TEU.

Despite the lack of progress and, most importantly, of guarantees against irreversibility, the Commission decided to repeal the CVM and replace it with the Rule of Law Mechanism. The Commission made a proposal to that effect to the Parliament and the Council, but the latter was unable to produce a common position and the Parliament relied on the opinion of the LIBE committee that it was time to close that chapter. With such a mandate, the Commission repealed the CVM with the contested act.

The AIJ is a professional association of active prosecutors to which the Commission outsourced part of its monitoring activities for the CVM reports, due to lack of resources and capacities to do that itself. The AIJ relied on this particular capacity to claim it had a ‘privileged interlocutor’ status as they contributed actively to the CVM reports, excluding the last one in 2022. It is that report that found Romania had fulfilled all the benchmarks. As a privileged interlocutor, the applicant claimed its legitimate expectations were breached. Similarly to MEDEL and Others, AIJ members were also subject to disciplinary proceedings, but they claimed, in addition, that they were identifiable as contributors to the CVM reports which exposed them to retaliatory measures. It is important to note that professional judicial associations very often defend judges in disciplinary proceedings and, generally, have an active role within the Romanian judiciary¹⁰.

The Third Chamber of the General Court applied the same approach as in the MEDEL case and achieved the same result but, in doing this, it made some problematic arguments. As MEDEL and Others, the AIJ did not fulfil the condition of a legal provision granting it procedural privileges. As to the status of an interlocutor, the GC also found insufficient grounds to claim negotiator’s position but, apart from citing the Carvalho and Others and the Unión de Pequeños Agricultores Orders, the GC did not elaborate on what would be sufficient for a professional association of prosecutors, which participated in compiling the Commission’s CVM reports, to be considered a negotiator. Carvalhoand UPA were indeed trade associations, whereas the AIJ represents judicial officials who can be directly affected by judicial reforms of which they may even be the subject.

In order to determine whether there were grounds to claim legitimate expectations, the GC explained that the applicant must have received ‘precise assurances’, meaning ‘precise, unconditional and consistent information which comes from an authorised and reliable sources’ (paragraph 33). The applicant failed to provide such information, but this definition raises the question of whether Commission President Ursula von der Leyen’s statement in the European Parliament on 16 July 2019, in which she committed that the Rule of Law instrument was not an alternative to existing instruments, but complementary, would have been accepted as a ‘precise assurance’.

What is surprising in the Order is that, while discussing legitimate expectations, the GC decided to address the temporality of the CVM, saying its repealing was to be expected because of its temporal nature described in Article 38 of the Act of the Accession (paragraph 34). The argument of temporality seems bewildering in the context of establishing direct concern and especially against the backdrop of the fact that it being temporal does not mean the benchmarks must not be fulfilled as the CVM Decision itself (recital 9) and the case law requires. The fact that the CVM lasted for so long speaks of excessive persistence, which should be taken into account when considering its temporality. Moreover, the GC’s statement seems to take the Commission’s assessment in the contested decision at face value, even though whether the benchmarks were fulfilled or not requires a substantive analysis.

In paragraph 48, the GC also accepts the Commission’s commitment to continue to monitor the situation in Romania via the Annual Rule of Law Reports (ARLR) without discussing the fundamental difference between the two instruments – the CVM is legally binding, which gives special force to the Commission recommendations, while the ARLR is not. Furthermore, the CVM powers were described by AG Collins¹¹ as such that allow the Commission to initiate infringement proceedings when the recommendations in the CVM reports were ignored. The ARLR does not have such force.

Moreover, as AG Bobek said¹², the CVM states are ‘in a specific position’ because the CVM covers ‘any aspect of their judicial structure, provided that it can be said to relate directly to the yardsticks and conditions set out in the CVM Decision and the Act of Accession’. Non-compliance with the recommendations in the Commission’s reports would amount to giving Romania ‘carte blanche not to comply with the core requirements of Accession’, he added (point 153). AG Bobek advised the Court not to rely exclusively on Article 19(1) TEU, precisely because the CVM has much larger coverage and bigger stake – fulfilling a pre-accession requirement -, but the CJEU disagreed, thus probably opening the way for the time when the CVM would no longer be in place.

This is sitting uncomfortably with the GC’s finding that even though the CVM required of Romania to reform its judiciary, it still had discretion in how to do it. It is indeed true that in addressing the CVM recommendations Romania does have discretion, but the specific status of the CVM reports and the concreteness of the recommendations challenge the discretion condition, raising the question whether it is not the right time and the right crisis to update the locus standi criteria for professional associations representing active judges and prosecutors.

Back to the issue of direct concern, the GC recognised that individuals did enjoy invoking the CVM benchmarks in national courts, but this did not mean to not repeal a rule that affected directly the legal situation of all individuals who enjoyed it. This, the GC concluded, would be an unacceptable extension of the condition of direct concern. But what would be an acceptable extension, especially in cases that do not concern all individuals but only those who are tasked to uphold the rule of law, including European law?

Lastly, the GC rejected the request for a mutatis mutandis application of the KlimaSeniorinnen case¹³ with the argument that the EU is not a member of the ECHR (paragraph 74). In this case, the ECtHR considered it necessary to update its legal standing rules to reflect societal evolution and the severity and urgency of climate change. The GC, however, does not seem to accept the rule of law crisis as a triggering event to reconsider its locus standi criteria, referring to the available alternatives, namely Article 267 TFEU referrals. The ECtHR, however, considered it important to take into account whether associations had legal standing before local courts, which case C-53/23¹⁴ shows was an issue already raised before the ECJ. In the CVM case, specifically, the Commission’s decision to repeal it cannot be brought to the attention of the Court via Article 267 TFEU.

The Third Chamber did not urge the privileged applicants to act in this case because they already failed to do so. Both the Council and the Parliament accepted, tacitly, the Commission’s proposal to repeal the CVM Decision. This means that, if the CJEU confirms the GC findings on appeal, there will be no one left to check whether the Commission complied with its duty as a guardian of the Treaties.

Conclusion 

This contribution aimed to show how reluctant the General Court is to respond to legal standing requests by professional associations of judges and prosecutors, applying the locus standi criteria to two different rule of law instruments. In the MEDEL case, the GC said the contested act contained conditions that may prevent the realisation of an adverse effect, meaning that there was another institution (the Commission) to take the final decision on whether Poland implemented the milestones set out in the contested decision. In addition, it found that the milestones were not meant to replace the values of rule of law and effective judicial protection. Even though, the GC could have hardly reached a different outcome, it did urge the privileged actors to act against infringements of Article 19(1) TEU.

In the CVM case, applied the same approach to a very different legal instrument that has direct effect. The GC developed a definition of what ‘precise assurances’ means when claiming legitimate expectations, raising the question whether, if the applicant had relied on political statements by the Commission to the effect that the CVM would not be repealed, this would have been acceptable. The CVM Order seems to justify the repealing of the CVM, arguing that it were to be expected, due to its temporal nature and it also considers the replacement of the legally binding CVM with the soft law Rule of Law Mechanism justified. This, however, is not convincing without a substantive analysis of the legal effects of the two instruments and the Commission’s assessment that Romania had fulfilled all benchmarks.

These two cases demonstrate that the GC is reluctant to ease the locus standi conditions for professional judicial associations, despite the differences between the contested instruments. If in the MEDEL case there were other privileged actors that could act, in the CVM case the privileged actors had already acted and how they acted was the problem. These cases also highlight the differences of response when the ECJ is asked to protect national judges and prosecutors under Article 267 TFEU and under Article 263(4) TFEU.

¹ A term used recently by Nika Bačić Selanec, Assistant Professor at the Faculty of Law in the University of Zagreb.

² Court of Justice, Case C-769/22, Commission v Hungary.

³ Court of Justice, 2^nd March 2021, Case C-824/18, A.B. e a. (Nomination des juges à la Cour supreme – Recours), ECLI:EU:C:2021:153, p. 95.

⁴ Court of Justice, 20^th April 2021, Case C-869/19, Repubblika, ECLI:EU:C:2021:331, P. 64.

⁵ Court of Justice, 18^th May 2021, Joined Cases C-83/19, C-127/19, C-195/19, C-291/19 and C-397/19, Asociaţia ‘Fo-rumul Judecătorilor din România’ and Others v Inspecţia Judiciară and Others, ECLI:EU:C:2021:393, p. 160.

⁶ General Court, 4^th June 2024, Joined Cases T-530/22 to T-533/22, Magistrats européens pour la démocratie et les libertés (Medel) vCouncil, ECLI:EU:T:2024:363.

⁷ General Court, 3^rd February 2025, Case T-1126/23, Asociația Inițiativa pentru Justiție v Commission, ECLI:EU:T:2025:138.

⁸ Court of Justice, 18^th May 2021, Joined Cases C-83/19, C-127/19, C-195/19, C-291/19 and C-397/19, cit., para 178.

⁹ Ibid 167, 172.

¹⁰ S. Doroga, R. Bercea, The role of judicial associations in preventing rule of law decay in Romania: informal communication and strategic use of preliminary references, (2024) GLJ, Vol. 24(8), p. 1393-1411.

¹¹ Opinion of Advocate General Collins, 26^th January 2023, Case C-817/21, R.I.v Inspecţia Judiciară, N.L., ECLI:EU:C:2023:55, point 36.

¹² Opinion of Advocate General Bobek, 23^rd September 2020, Joined Cases C-83/19, C-127/19 and C-195/19, Asociația ‘Forumul Judecătorilor din România’ v Inspecția Judiciară, ECLI:EU:C:2020:746, point 215.

¹³ ECtHR, 9^th April 2024, Verein KlimaSeniorinnen Schweiz and Others v Switzerland, CE:ECHR:2024:0409JUD005360020.

¹⁴ Court of Justice, 8^th May 2024, Case C-53/23, Asociaţia “Forumul Judecătorilor din România” (Associations de magistrats), ECLI:EU:C:2024:388.