ANALYSIS After a decade in which they neutralized the decisions of the CJEU, Lia Savonea&co request arbitration from the European Court regarding judges' pensions

A CCR decision regarding the reduction of judges' pensions has been postponed for the fifth time on the grounds that the judges are analyzing the request of the High Court of Cassation and Justice (ÎCCJ) led by Lia Savonea for the case to be arbitrated by the Court of Justice of the European Union (CJEU). The paradox is that, in the last decade, the same Lia Savonea has been at the forefront of contesting CJEU decisions regarding Justice in Romania. Accused of trying to delay the CCR decision, Savonea stated for Cotidianul that the ÎCCJ request is just a necessary legal instrument to ensure legal clarity.

In the last 12 years, Romania has faced the Court of Justice of the European Union (CJEU) several times with sensitive cases – from the Cooperation and Verification Mechanism (CVM) and the Special Section for judges, to the statute of limitations for criminal liability and the protection of the EU's financial interests. In theory, CJEU rulings should have reshaped the internal legal architecture in favor of the rule of law and the independence of the judiciary. In practice, part of the system – CCR, ÎCCJ, CSM – has developed sophisticated strategies for neutralization, delay, or reinterpretation, which have directly favored high-ranking defendants, political networks, and conservative segments within the judiciary, interested in maintaining the status quo.

1. CVM and the Special Section: the beginning of "judicial sovereignty"

The CJEU decision of May 18, 2021, pronounced in cases regarding CVM, the Special Section, and amendments to the justice laws, clearly established for the first time that CVM and its recommendations are mandatory for Romania, as an effect of the accession treaty. The Court went further and explicitly stated: if an internal norm or a decision of the Constitutional Court contradicts EU law, the national judge has the obligation to leave that norm or decision unapplied and to give priority to Union law.

In front of the CJEU, however, the official position transmitted by CSM – personally signed by Lia Savonea, then president of the Council and today president of the High Court – was to contest the entire European framework.

In the viewpoint sent to Luxembourg, Savonea:

*questioned even the CJEU's competence to interpret Decision 2006/928/EC, the act that established the CVM, suggesting that it would not be an "act subject to CJEU interpretation";

*argued that the CVM is not mandatory for Romania, but only a set of political recommendations;

*explicitly defended the Special Section for the Investigation of Crimes in Justice (SIIJ), although the CVM and the Venice Commission indicated that the structure weakened the fight against corruption and became a tool of pressure on judges.

In practice, while the CJEU tried to consolidate a European standard: "you cannot go back to the rule of law after accession", part of the judicial elites in Bucharest tried to empty the CVM of content and to reserve an almost exclusive monopoly for the CCR over the interpretation of constitutional "supremacy". The direct beneficiaries were: the political class interested in maintaining the SIIJ and the amendments to the justice laws that reduce anti-corruption pressure; segments of the judiciary, including disciplinary and appointment networks, which used the SIIJ and the post-2018 architecture as an internal control tool over inconvenient judges.

2. Historic decision: judges can ignore CCR – and the CCR counterattack

On the same level of the rule of law, the CJEU established a principle that, in any other member state, would have been seismic: if a decision of the Constitutional Court contradicts EU law, judges must ignore it and apply the European norm directly, without fear of disciplinary sanctions. The ruling not only enshrined the abstract supremacy of EU law but also a very concrete power of the national judge to not comply with internal decisions that endanger the financial interests of the Union or the architecture of the rule of law.

The CCR's response was, however, textbook for what some constitutionalists call "defensive sovereignty": The Court communicated that the effects of this CJEU ruling "can practically only occur after the revision of the Constitution", reiterating that its decisions remain mandatory for all authorities, including for courts. In other words, the CCR imposed a reading in which the supremacy of EU law stops at the gate of the Constitution, and the Romanian judge cannot ignore CCR decisions, even if Luxembourg says exactly the opposite.

In practical terms, this materialized in:

*discouraging judges who would have wanted to apply CJEU standards directly in sensitive cases (justice laws, SIIJ, statute of limitations, corruption affecting EU funds);

*strengthening a culture of "constitutional obedience", in which EU law is invoked selectively, only when it does not collide with internal interests.

The beneficiaries were those who benefited from the controversial legislation adopted during the 2017-2019 period (from SIIJ to the new disciplinary regimes), as well as political actors who supported a less aggressive model of justice regarding corruption and EU fund expenditures.

3. Statute of limitations and the "great masked amnesty": when CJEU is only good on paper

The most visible recent confrontation between the CJEU and the Romanian system occurred in the area of criminal statute of limitations. The CCR decisions from 2018 and 2022, which invalidated key provisions regarding the interruption of the statute of limitations, led to the closure of thousands of cases, including corruption cases, being described in the public space as a "masked amnesty".

Meanwhile, the CJEU was seized with questions regarding the compatibility of this regime with the obligation of states to protect the financial interests of the EU and to avoid the systemic risk of impunity. The Court ruled that:

*national courts must ensure the effective sanctioning of frauds affecting the EU budget;

*if the automatic application of CCR decisions regarding the statute of limitations generates a systemic risk of impunity in such cases, judges can (and must) deviate from that jurisprudence to protect EU law.

In theory, the decision opened the way for judges to limit the effect of the "great statute of limitations", at least in cases involving European funds or corruption impacting the EU budget. In practice, however, some institutional reflexes pulled the handbrake:

*CSM publicly communicated that the application of CCR and ÎCCJ decisions regarding the statute of limitations is mandatory, "not being left to the discretion of judges", suggesting that deviation from this line means further violation of the law.

*communiqués and justifications insisted that the legislation had already been aligned with CCR decisions and that for previous acts the more favorable form applies, which, combined with the statute of limitations, effectively led to the closure of many cases.

*some ÎCCJ panels followed the same line, establishing that judges cannot "combine" norms or "choose" which law to apply, suggesting that the CJEU standard does not justify departing from CCR and ÎCCJ decisions regarding the statute of limitations except in an extremely narrow circle.

The direct winners of this option to neutralize, de facto, the CJEU opening were:

defendants in corruption, tax evasion, and fraud cases with EU funds, for whom the statute of limitations became the perfect escape;

political and economic networks targeted by old investigations, where time had become the main ally;

segments of the judiciary that, through the statute of limitations, avoided their own accountability for delaying cases for years.

4. CSM and disciplinary pressure: how to "dampen" pro-CJEU enthusiasm

Another level where CJEU jurisprudence has been, if not ignored, at least systematically countered is the disciplinary area. The CJEU has clearly stated: you cannot build a disciplinary regime in which judges risk sanctions for having directly applied EU law or for refusing to follow decisions of a constitutional court that violate this law. In other words, the national judge must be institutionally protected when choosing Luxembourg over Bucharest.

In Romania, however, there have been cases of judges investigated or targeted by the media as "anti-nationals" for refusing to apply CCR and ÎCCJ decisions regarding the statute of limitations and invoking the CJEU.

CSM, through communiqués and official positions, has reaffirmed the obligation of CCR/ÎCCJ decisions and implicitly warned that individual deviations are not acceptable.

The public discourse of some opinion leaders in the judiciary, supported by part of the mainstream media, has labeled judges who activated CJEU standards as "activists", "anti-national judges", or "judges serving foreign interests".

This climate, coupled with disciplinary procedures or the specter of them, has created a "dampening" effect: very few judges dare to go all the way with the supremacy of the CJEU in high-stakes cases, for fear of becoming targets in CSM or in the public space. The main beneficiary is the system itself – a conservative body of judges, in which conformity to internal decisions prevails, and the CJEU remains more of a rhetorical argument than an effective tool.

5. Lia Savonea, the "antidote" voice in Luxembourg

The current president of the ÎCCJ, Lia Savonea, has had several interventions in recent years – written or through justifications of rulings – that construct a counter-discourse to the recommendations and jurisprudence of the CJEU, especially regarding the CVM, the rule of law, and the statute of limitations.

Three relevant landmarks:

The viewpoint in front of the CJEU on the CVM and the Special Section In the document sent to the Court in Luxembourg, Savonea contested the mandatory nature of the CVM for Romania, questioned the CJEU's competence to interpret the decision that established the CVM, and explicitly defended the Special Section, in contradiction with the recommendations of the European Commission and the Venice Commission.

Her position was practically against the entire framework of monitoring the rule of law built at the European level.

Example of "exception" reasoning on statute of limitations marked by Savonea

In an extensive reasoning, co-signed with judge Adriana Ispas, Savonea develops an argumentation through which:

*places at the center the principle of the more favorable criminal law and suggests that the fundamental rights of defendants cannot be subordinated to "the financial interests of the EU";

*affirms that judges cannot "combine" laws or choose which norms to apply in cases of succession of laws over time, which is a way to limit the margin opened by the CJEU in cases regarding the statute of limitations;

*reinforces the idea that CCR and ÎCCJ decisions are mandatory and cannot simply be ignored, even under the pretext of direct application of Union law.

ÎCCJ decision described as a "declaration of sovereignty"

In the summer of 2024, an extended panel of the ÎCCJ – which included Lia Savonea – pronounced a decision regarding the application of the principle of the more favorable criminal law in the matter of the statute of limitations.

The ruling draws attention to the fact that applying the CJEU decision in the sense of disregarding a prior ruling of the ÎCCJ (HP 67/2022) would lead to "ensuring the protection of fundamental rights" in a manner compatible with the ECHR;

in essence, the ÎCCJ conveys that the national standard of protection of fundamental rights cannot be lowered under the pretext of protecting the financial interests of the EU, which allows for the reinterpretation or limitation of the effects of CJEU decisions in favor of internal decisions.

This reasoning is even cited in legal circles as a genuine "declaration of sovereignty" of the High Court towards Luxembourg.

All these positions converge towards a clear line: Lia Savonea consistently positions herself as a critical voice against the extension of the CJEU's authority over the internal architecture of Romanian justice, using the fundamental rights of defendants and the primacy of the Constitution as shield arguments. The direct beneficiaries are those who have an interest in limiting the effects of CJEU decisions on the statute of limitations, CVM, and on national disciplinary and criminal control instruments – from politicians and officials investigated in old cases to networks within the system interested in not being evaluated according to European rule of law standards.

6. Who wins when CJEU is "optional"

Analyzing these cases – CVM and the Special Section, the decision regarding the possibility of ignoring the CCR, the statute of limitations, and the disciplinary regime – some clear benefits emerge for the actors who chose to minimize the impact of CJEU decisions in Romania:

Defendants in major cases

The statute of limitations, combined with the rigidity in applying CCR decisions and ÎCCJ rulings, has led to the closure or weakening of hundreds of corruption, tax evasion, or fraud cases with EU funds. The CJEU provided a framework to limit the disaster, at least in cases with an impact on the European budget, but the way CSM, CCR, and part of the ÎCCJ reacted allowed the "great masked amnesty" to produce its effects.

Political and administrative networks

The Luxembourg decisions regarding CVM, SIIJ, and the rule of law could have accelerated the dismantling of instruments perceived as political and the strengthening of the independence of the anti-corruption prosecutor's office. Savonea's contesting positions at the CJEU, the cautious reactions of the CSM, and the restrictive interpretations of the CCR, however, allowed for an extension of the life of these arrangements or at least a controlled exit, without assuming political and judicial responsibility for the deviations of the 2017-2019 period.

Conservative judicial elite

A segment of the judicial system – visible in certain sections of the CSM, in key panels of the ÎCCJ, and in CCR decisions – benefits from maintaining a model in which EU law is "consulted", not applied. The national judge remains strictly bound to CCR and ÎCCJ decisions, and the attempt to apply the CJEU directly is presented as a dangerous eccentricity. This reinforces internal hierarchies, disciplinary control, and a culture of conformity, to the detriment of a real dialogue with Luxembourg.

In counterbalance, those who lose are precisely those on whose behalf the CJEU decisions were born: European taxpayers, for whom the protection of EU funds is guaranteed; Romanian citizens who rely on an independent judiciary free from political games; and judges who would like to exercise their role as "judges of Union law" without fear of being sanctioned for it.

In this landscape, there are judges and panels that have tried to put into practice, all the way, the supremacy of the CJEU – including at the ÎCCJ, in cases where CCR decisions regarding the statute of limitations were refused and Luxembourg standards were invoked. But these remain still the exception, not the rule, in a system where CJEU arbitration is too often treated as a "consultative opinion" and too rarely as what it is in law: a mandatory benchmark that should make the difference between a European justice only at the level of discourse and one effectively integrated into the legal order of the Union.

Analysis conducted with the support of Perplexity