3) In addition to certain provisions of primary law (namely Article 19 TEU, Article 267 TFEU and Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’), Articles 2 and 5 of Directive 2010/64/EU, ( 2 ) Articles 1, 6 and 8 of Directive 2012/13/EU ( 3 ) and Articles 1 and 8 of Directive (EU) 2016/343 ( 4 ) are also relevant in the present case.

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18) Furthermore, the referring judge observes that, since the entry into force of the 2012 judicial reform, responsibility for the central administration and management of the judicial system has lain with the President of the Országos Bírósági Hivatal (National Office of the Judiciary, Hungary, ‘the NOJ’), who is appointed by the National Assembly for a term of nine years; that President has extensive powers, which include deciding on judicial appointments, making senior judicial appointments and initiating disciplinary proceedings against judges. He further states that the Országos Bírói Tanács (National Judicial Council, ‘NJC’) – whose members are elected by the judiciary – is responsible for overseeing the actions of the President of the NOJ and approving her decisions in certain cases. On 2 May 2018, the NJC adopted a report stating that the President of the NOJ had regularly infringed the law by her practice of declaring vacancy notices for judicial and senior judicial posts unsuccessful without sufficient explanation and appointing temporary senior judges of her choice, such as the President of the Fővárosi Törvényszék (Budapest High Court, Hungary), which is the court of appeal for the referring court. There is currently friction between the President of the NOJ and the NJC. In those circumstances, the referring judge questions whether such functioning of the NOJ is compatible with the principle of judicial independence enshrined in Article 19 TEU and Article 47 of the Charter. He also wonders whether, in such circumstances, the proceedings before him may be regarded as fair.

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24) In those circumstances, the Pesti Központi Kerületi Bíróság (Central District Court, Pest) decided to refer supplementary questions to the Court of Justice for a preliminary ruling (Question 4(a) to (c) and Question 5). Thus, by his two decisions, the referring judge referred the following questions to the Court for a preliminary ruling: 

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2 (a) Must the principle of judicial independence referred to in the second subparagraph of Article 19(1) TEU, Article 47 of the [Charter] and the case-law of the Court of Justice of the European Union be interpreted as meaning that that principle is breached where the president of the [NOJ], who is responsible for the central administration of the courts and who is appointed by the parliament, the only body to which he or she is accountable and which may remove him or her from office, fills the post of president of a court – a president who, inter alia, has powers in relation to organisation of the allocation of cases, commencement of disciplinary procedures against judges, and assessment of judges – by means of a direct temporary nomination, circumventing the applications procedure and constantly disregarding the opinion of the competent self-governance bodies of judges?

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3 (a) Must the principle of judicial independence referred to in the second subparagraph of Article 19(1) TEU, Article 47 of the [Charter] and the case-law of the Court of Justice of the European Union be interpreted as precluding a situation in which, since 1 September 2018 – unlike the practice followed in previous decades – Hungarian judges receive by law lower remuneration than prosecutors of the equivalent category who have the same grade and the same length of service, and in which, in view of the country’s economic situation, judges’ salaries are generally not commensurate with the importance of the functions they perform, particularly in the light of the practice of discretionary bonuses applied by holders of high level posts?

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5 Must the principle of judicial independence, established in the second subparagraph of Article 19(1) TEU, Article 47 of the [Charter] and the case-law of the Court of Justice, read in the light of Article 267 TFEU, be interpreted as meaning that that principle precludes disciplinary proceedings being brought against a judge for having made a request for a preliminary ruling?’

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58) Given the facts which gave rise to the main proceedings and with a view to providing a useful and as complete an answer as possible to the question referred, consideration of the question referred cannot be confined solely to the aspects explicitly raised by the referring court. It is appropriate to widen its scope by taking into consideration several other provisions of Directives 2010/64 and 2012/13, as well as Directive 2016/343 and Article 47 of the Charter. It is therefore proposed that both parts of the question be reformulated as follows:

• Must Articles 2, 3 and 5 of Directive 2010/64 be interpreted as requiring Member States to ensure the right of suspected or accused persons who do not speak or understand the language of the criminal proceedings to interpretation of a quality sufficient to safeguard the fairness of the proceedings by establishing a register of independent translators and interpreters who are appropriately qualified and/or judicial control of that quality?
• Must the combined provisions of Directives 2010/64, 2012/13 and 2016/343, and Article 47 of the Charter be interpreted as precluding the trial in absentia of an accused person who does not speak or understand the language of the criminal proceedings and who cannot be established to have been informed, in the course of the investigation, of the suspicions or accusation against him or her owing to a lack of adequate interpretation?

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60) Directives 2010/64, 2012/13 and 2016/343 form part of that set of legal instruments giving tangible expression to the Roadmap, adopted by the Council in 2009, designed to strengthen the rights of individuals in criminal proceedings, which was welcomed by the European Council and declared an integral part of the Stockholm Programme. ( 32 ) All those provisions of secondary law are intended to enhance the procedural rights of suspects or accused persons in criminal proceedings in order to safeguard their right to a fair trial and accordingly are based, pursuant to their respective recitals, on the rights set out in Articles 6, 47 and 48 of the Charter among other provisions. The respective scopes of those directives are, moreover, defined in almost identical terms so as to cover the full course of criminal proceedings from the time when persons are informed by the competent authorities of a Member State that they are suspected or accused of having committed a criminal offence until the conclusion of the proceedings with the decision on the final determination of whether the suspect or accused person has committed the criminal offence concerned. ( 33 ) A holistic approach to and understanding of Directives 2010/64, 2012/13 and 2016/343 are, in my view, necessary to answer the question referred.

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80) As stated, in essence, in recitals 14 and 41 of Directive 2012/13, that directive builds on the rights set out, inter alia, in Article 47 of the Charter and seeks to promote those rights. More specifically, Article 6 of that directive is intended to ensure the effective exercise of the rights of the defence and the fairness of the proceedings and thus expressly establishes an aspect of the right to an effective remedy, enshrined in Article 47 of the Charter. ( 42 ) The fact that Directive 2012/13 does not regulate the procedures whereby the information about the accusation, provided for in Article 6 of that directive, must be provided to the accused person cannot undermine the objective of that provision. ( 43 )

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84) In the light of the foregoing considerations, I propose that the answer to the second part of the first question should be that the combined provisions of Directives 2010/64, 2012/13 and 2016/343 must be interpreted as meaning that, in circumstances such as those at issue in the main proceedings, they do not preclude the trial in absentia of an accused person who does not speak or understand the language of the criminal proceedings and who cannot be established to have been informed in the course of the investigation of the suspicions or accusation against him or her owing to inadequate interpretation as long as the lawyer representing the accused person has the opportunity to challenge the lawfulness of procedural steps and, if necessary, the proceedings as a whole on the grounds of an infringement of that right to information. Article 6(3) of Directive 2012/13, read in the light of Article 47 of the Charter, must be interpreted as not precluding the disclosure of detailed information on the accusation to the defence of an accused person tried in absentia before the court begins to examine the merits of the accusation and to hear argument, provided that all necessary measures are taken by the court in order to ensure respect for the rights of the defence and the fairness of the proceedings.

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86) By its second and third questions, the referring judge asks the Court, in essence, whether Article 19 TEU and Article 47 of the Charter must be interpreted as precluding:

• a national system for appointing senior members of the judiciary, responsible for allocating cases, appraising judges and bringing disciplinary proceedings and conferring on the President of the NOJ, an official appointed by the parliament, the power to make direct temporary appointments, circumventing calls for applications and ignoring the opinion of the competent judicial bodies;
• a national remuneration system providing for lower pay for judges than for prosecutors and the discretionary grant by the President of the NOJ and senior judges of various allowances that are exceedingly high compared to judges’ basic pay and may thus potentially constitute undue influence and entail a breach of judicial independence.

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90) Accordingly, the answers expected from the Court regarding the compatibility with EU law – in this case Article 19 TEU, read in conjunction with Article 47 of the Charter – of national law concerning the direct appointment by the President of the NOJ of temporary senior judges ( 48 ) and judges’ remuneration do not satisfy the criterion of necessity referred to above. ( 49 ) In other words, the main proceedings do not concern the Hungarian judicial system as a whole, of which some aspects are liable to undermine the independence of the judiciary and, more particularly, of the referring judge in his implementation of EU law.

91) The fact that there may be a substantive connection between the main proceedings and Article 47 of the Charter, if not more broadly with Article 19 TEU, is not sufficient to satisfy the criterion of necessity. It would also be necessary for the interpretation of those provisions, as requested in the second and third questions, to be objectively required for the decision to be taken by the referring judge, which is not the case here. It is not apparent how the referring judge might be required, following the guidance provided by an interpretation of those provisions in the light of the wording of those questions, to make a decision needed in order to rule on the main case. ( 50 )

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93) By his fifth question, the referring judge asks, in essence, whether Article 19(1) TEU, Article 47 of the Charter and Article 267 TFEU must be interpreted as precluding 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. Both the Hungarian Government and the Commission contend that this question is inadmissible, a submission which, in my view, can be accepted from a strictly legal point of view, despite the particularly worrying and regrettable circumstances – a euphemism if ever there was one – following the reference for a preliminary ruling.

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101) In the light of the foregoing considerations, I propose that the Court should answer the Pesti Központi Kerületi Bíróság (Central District Court, Pest, Hungary) as follows:

1. Where there are rules of national law relating to the exercise of an extraordinary appeal, intended to unify that law, against an order for reference, Article 267 TFEU must be interpreted as precluding the application of such rules allowing the higher court hearing the appeal to declare that order unlawful, without affecting the legal effects of that order as regards the stay of the main proceedings and the continuation of the preliminary ruling procedure, on the grounds that the questions referred are not necessary to determining the case and seek a declaration that national law is incompatible with EU law. The primacy of EU law requires national referring courts to disapply those rules and the judicial decisions which give effect to them.
2. Articles 2, 3 and 5 of Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the right to interpretation and translation in criminal proceedings must be interpreted as requiring Member States to ensure that suspects or accused persons who do not speak or understand the language of the criminal proceedings have the opportunity to complain that the quality of interpretation is not sufficient to enable them to have knowledge of the case against them and to exercise their rights of defence. Article 5(2) of Directive 2010/64 does not require Member States to establish a register of independent translators and interpreters who are appropriately qualified.
3. The combined provisions of Directives 2010/64, 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings and (EU) 2016/343 of the European Parliament and of the Council of 9 March 2016 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings must be interpreted as meaning that, in circumstances such as those at issue in the main proceedings, they do not preclude the trial in absentia of an accused person who does not speak or understand the language of the criminal proceedings and who cannot be established to have been informed in the course of the investigation of the suspicions or accusation against him or her owing to inadequate interpretation as long as the lawyer representing the accused person has the opportunity to challenge the lawfulness of procedural steps and, if necessary, the proceedings as a whole on the grounds of an infringement of that right to information. Article 6(3) of Directive 2012/13, read in the light of Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as not precluding the disclosure of detailed information on the accusation to the defence of an accused person tried in absentia before the court begins to examine the merits of the accusation and to hear argument, provided that all necessary measures are taken by the court in order to ensure due regard for the rights of the defence and the fairness of the proceedings.