The Concept of ‘Appearances’ in the Case-law of the Court of Justice of the European Union

Studiu publicat în volumul In Honorem Flavius Antoniu Baias. Aparența în drept, tomul III, Ed. Hamangiu, 2021, p. 285-294.

Introduction

It is well known that the concept or the doctrine of appearances^[1] was developed by the Romans, more than 2000 years ago. This concept is still, however, largely applied nowadays both in civil law systems^[2] and in the common law system^[3]. More recently, this has concept penetrated the European supra national system^[4] through the case-law of the European Court of Human Rights (E.C.H.R.) and the case-law of the Court of Justice of the European Union (C.J.E.U.), as we will further present.

The concept of appearances has numerous philosophical and legal definitions. The most common one comes via the French legal dictionary: “ce qui, dans une situation juridique, peut être connu, sans recherches approfondies (et qui ne correspond pas nécessairement à la réalité)”^[5]. It can be noticed that there is the possibility that the appearances do not meet the reality. Therefore, the external elements offer an erroneous image of the reality.

This article will depart from the traditional approach towards appearances, meaning the civil law framework^[6], and it will present how the concept has been used by the C.J.E.U. in its case-law^[7]. We will seek to show that the concept of appearances is applied by the Court in Luxembourg in many areas of EU law, and that the concept never loses its importance as a tool of interpretation and ruling. In this article, the “concept of appearances” is used interchangeably with the “doctrine of appearances”^[8].

In a similar manner to civil law systems, in the legal order of the EU the doctrine of appearances has a protective role for a third party. We will analyse below three areas of EU law where the C.J.E.U. has made use of this concept: the Value Added Tax (VAT), the independence of judges, and the mandate of a judge at the General Court.

§1. Appearances or fraud?

The VAT is probably the first area in which the Court used the concept of appearances. This happened in the context of the conditions for a taxable person to deduce VAT. In the famous Halifax case^[9], the Court assessed whether the Sixth Directive^[10] must be interpreted as meaning that a taxable person has no right to deduct input VAT where the transactions on which that right is based constitute an abusive practice. The Court stated that in order to determine the existence of an abusive practice, it is necessary, first, that the transactions concerned, notwithstanding formal application of the conditions laid down by the relevant provisions of the Sixth Directive and of national legislation transposing it, result in the accrual of a tax advantage the grant of which would be contrary to the purpose of those provisions. Second, it must also be apparent from a number of objective factors that the essential aim of the transactions concerned is to obtain a tax advantage^[11]. In this context of transactions, the Court also interpreted the term “supply of services”, while taking an objective approach. The C.J.E.U. stated that the term is objective in nature and applies without regard to the purpose or results of the transactions concerned and without being necessary for the tax authorities to carry out inquiries to determine the intention of the taxable person^[12].

In Axel Kittel and Recolta Recyclin cases^[13] the Court judged that where a recipient of a supply of goods is a taxable person who did not and could not know that the transaction concerned was connected with a fraud committed by the seller, Article 17 of the Sixth Directive precludes a rule of national law under which the fact that the contract of sale is void causes that taxable person to lose the right to deduct the VAT he has paid. It is irrelevant in this respect whether the fact that the contract is void is due to fraudulent evasion of VAT or to other fraud^[14]. By contrast, where it is ascertained, having regard to objective factors, that the supply is to a taxable person who knew or should have known that, by his purchase, he was participating in a transaction connected with fraudulent evasion of VAT, it is for the national court to refuse that taxable person entitlement to the right to deduct^[15]. It was apparent for the Court that traders who take every precaution which could reasonably be required of them to ensure that their transactions are not connected with fraud, be it the fraudulent evasion of VAT or other fraud, must be able to rely on the legality of those transactions without the risk of losing their right to deduct the input VAT^[16].

A couple of years later, in Newey case^[17], concerning again a supply of services transaction, the Court stated that it may become apparent that, sometimes, certain contractual terms do not wholly reflect the economic and commercial reality of the transactions^[18]. That is the case in particular if it becomes apparent that those contractual terms constitute a purely artificial arrangement which does not correspond to the economic and commercial reality of the transactions^[19]. The Court judged that the effect of the principle of prohibition of the abuse of rights^[20] is to bar wholly artificial arrangements which do not reflect economic reality and are set up with the sole aim of obtaining a tax advantage. It is for the referring court, however, by means of an analysis of all the circumstances of the dispute in the main proceedings, to ascertain whether the contractual terms do not genuinely reflect the economic reality^[21]. The CJEU concluded that contractual terms, even though they constitute a factor to be taken into consideration, are not decisive for the purpose of identifying the supplier and the recipient of a ‘supply of services’ within the meaning of Articles 2(1) and 6(1) of the Sixth Directive. They may in particular be disregarded if it becomes apparent that they do not reflect economic and commercial reality but constitute a wholly artificial arrangement which was set up with the sole aim of obtaining a tax advantage, which it is for the national court to determine^[22].

Based on the cases mentioned above, the Court recently ruled that the VAT Directive^[23] precludes a national practice by which the tax authorities refuse a taxable person the right to deduct input VAT on the ground that the conduct of that taxable person and of the issuer of the invoices amounts to fraud, under the following conditions. First, the contracts between the taxable person and the issuer were not necessary for the performance of the economic transactions in question and could be legally classified other than how the parties did (i.e. contrat d’entreprise). Secondly, the issuer has had recourse, without it being necessary or economically rational, to a chain of subcontractors, some of which did not have the necessary personnel and material resources in order to realize the object of the contract. Thirdly, the taxable person had personal or organisational links with that issuer as well as with one of those subcontractors, so that he would had been aware of the status of the subcontractors^[24].

Finally, a very interesting judgement was rendered this summer in the CB case^[25]. A self-employed person, carrying out an activity as an agent for performing artists which is subject to VAT, provided services to a group of undertakings responsible for the management of infrastructure and orchestras, for patron saint feast days and village festivals in Galicia (Spain). Payments made by the festival committees in that connection were in cash, without invoices being issued or accounting entries being made. As a result, they were not declared to the tax authorities for the purposes of either corporate tax or VAT. According to the contract, the agent would receive 10% of the group’s income, in cash, payments which were not declared, and no invoices were issued for them.

Following the inspection of CB’s tax situation, the tax authority took the view that the amounts which he had received for acting as an agent, did not include VAT and that, therefore, the taxable base of income tax had to be calculated taking those amounts into account in their entirety. Penalties were also imposed on CB.

The Court stated that the VAT Directive, in particular Articles 73 and 78 thereof, read in the light of the principle of neutrality of VAT, must be interpreted as meaning that, where taxable persons for VAT purposes, by fraud, have not indicated the existence of the transaction to the tax authority, issued invoices or shown the income generated during that transaction in a direct tax declaration, the reconstitution, as part of an inspection of that declaration, of the amounts paid and received during the transaction at issue by the tax authority concerned must be regarded as a price already including VAT, unless, under national law, the taxable persons have the possibility of subsequently passing on and deducting the VAT at issue, notwithstanding the fraud^[26].

§2. Appearances of independence of judges

We mentioned above that in the civil law systems, the doctrine of appearances confers a protective role for a third party. As a peculiarity, in this type of case-law of the C.J.E.U., contrary to the case-law of national courts, appearance has been used in the assessment of the independence of judges. Therefore, unlike in national systems where the theory of appearance confers protection on the third party by virtue of what the party legitimately knew, not by virtue of what he ignored, in the case-law of the C.J.E.U. the protective role has a systemic component, meaning the administration of justice at national level.

As a parallel, in the case-law of the E.C.H.R., this type of assessment has been done since the 1970s. It started with the famous dictum “justice must not only be done; it must also be seen to be done” in Delcourt v. Belgium^[27]. The expressis verbis reference to the doctrine came with Borges v. Belgium^[28] and Kress v. France^[29]. These cases^[30] concerned the intervention of a third party magistrate (e.g. avocat general, commissaire du gouvernement) in the process of deliberation of the court. In the ECtHR’s opinion, the benefit for the trial bench of even a purely technical assistance is to be weighed against the higher interest of the litigant, who must have a guarantee that the magistrate will not be able, through his presence at the deliberations, to influence their outcome^[31]. The ECHR doubted that such a guarantee was ensured by those legal systems. The ECHR concluded that there had been a violation of Article 6 § 1 of the Convention on account of the third party magistrate’s participation in the deliberations of the trial bench^[32]. The ECHR used the doctrine of appearances^[33] to underline that there cannot be any doubt, for an external observer, regarding the interference of a third party magistrate at the deliberations.

It must be pointed out that in the EU Judicial System, even if Advocates General exist, as Members of the C.J.E.U. like the judges, they never attend the Court judicial deliberations, strictly reserved to the panel of judges.

One can say that the C.J.E.U. started to integrate the doctrine of appearances only recently in this particular matter. Given the existing E.C.H.R. case-law, the Council of Europe Member States changed their legislation concerning the organization of the judicial system in order to meet the requirements of the Court in Strasbourg. As for the European Union, the C.J.E.U. case-law started with cases involving the independence and impartiality of judges, in the context of appointments of judges and their term of office (i.e. the reform of the judicial system in Poland). Before, there were no similar problems in the EU and the Member States’ legal order. We will concentrate here strictly on the references to appearances in the case-law of the C.J.E.U., without discussing extensively the background of the cases and other implications. The legal doctrine discusses these last issues abundantly^[34].

The 2018 LM case^[35], a preliminary reference from the Irish High Court concerning the possibility to surrender a crime suspect to Poland despite the controversial judicial reforms, started a series of concerns. Indeed, in the context of the European Arrest Warrant (EAW), the lack of appearance of judicial independence would translate in the lack of mutual trust^[36] between the EU Member States. The C.J.E.U., however, did not applied the doctrine of appearances here. It stated that an approach on a case-by-case basis should be follow by the national courts.

One year later, in a preliminary ruling procedure, where questions came from the Supreme Court of Poland^[37] regarding the independence of the judges of its Disciplinary Chamber (a newly created chamber enjoying significant autonomy, which was established to deal with violations of judicial ethics) and in other cases on the status of ordinary judges, the C.J.E.U. used the E.C.H.R. case-law. For the E.C.H.R., as we already mentioned, it has been settled case-law that in order to establish whether a tribunal is independent, regard must be had, inter alia, to the mode of appointment of its members and their term of office, the existence of guarantees against outside pressures and the question whether the body at issue presents an appearance of independence. What was at stake for the C.J.E.U. was the confidence, which such tribunals must inspire in the public in a democratic society, and first and foremost in the parties to the proceedings^[38]. This is practically a translation of the dictum “not only must justice be done; it must also be seen to be done”^[39].

As regards the condition of impartiality, discussed in the case at stake, it can be tested in various ways, namely, according to a subjective one, where regard must be had to the personal convictions and behaviour of a particular judge. It can also be assessed according to an objective test, that is to say by ascertaining whether the tribunal itself and, among other aspects, its composition, offer sufficient guarantees to exclude any legitimate doubt in respect of its impartiality. As to the objective test, it must be determined whether, quite apart from the judge’s conduct, there are ascertainable facts which may raise doubts as to his or her impartiality. In this connection, even appearances may be of a certain importance^[40]. Once again, the C.J.E.U. repeated that what was at stake was the confidence which the courts in a democratic society must inspire in the public, and first and foremost in the parties to the proceedings. This approach was, in fact, proposed by Advocate General Tanchev^[41]. He stressed that the appearance of independence and impartiality is one of the components of judicial independence^[42].

It follows that the Court in Luxembourg chose a complex deliberative and balancing approach, largely based on the concept of the ‘appearances’ of independence^[43]. The main idea here is that, since it is impossible to know how the judge thinks, it is necessary to ensure that the substantive conditions and detailed procedural rules governing the adoption of appointment decisions are such that they cannot give rise to reasonable doubts, in the minds of individuals, as to the imperviousness of the judges concerned to external factors and as to their neutrality with respect to the interests before them, once appointed as judges^[44]. This was mentioned also in Commission v. Poland (Independence of the Supreme Court)^[45]. Finally, the Court explains how the concept of appearances could be applied in practice: the assessment is contextual and it is based on factual circumstances^[46]. Thus, it is for the referring court to assess in concreto^[47].

§3. Appearances and the nomination in a high position

The case we will discuss here do not directly show the application of the doctrine of appearances. This is so because the Court did not, in fact, used this doctrine; however, it could have easily done this, all the more the case was related to the constitution of the panel of judges. The case^[48] concerned proceedings to review judgments of the General Court setting aside a decision and an order of the European Union Civil Service Tribunal (CST).

The Council launched a public call for applications in anticipation of the expiry of the terms of office of two Judges of CST. After this, the Council decided on a reform of the General Court that would put an end to the CST. During this period, the mandate of another judge at the CST ended, and the Council decided to appoint three, not two judges, to fill all the vacancies of the time. This was, however, for a short time, until the termination of the CST and the transfer of its competences to the General Court.

Chamber of the CST in which the three newly appointed judges sat continued to rule on cases until its closure. According to the applicants on appeal against those decisions, the appointment of the three judges was unlawful and they should have never sat in those cases, since the Council had only called the position for the appointment of two judges, not three.

The review concerned the question whether the judgments under review affected the unity or consistency of EU law in so far as the General Court, as court of appeal, held that the composition of the panel of judges of the CST had been irregular, on the basis of an irregularity affecting the procedure for the appointment of one of the members of that panel of judges, leading to a breach of the principle of the lawful judge, laid down in Article 47 of the Charter.

What should happen if candidates duly qualified to perform the duties of judge (at the CST) are appointed following a procedure that proves to be irregular^[49]? What role can the doctrine of appearances can play in this context? AG Sharpston made some references to the case-law on the right to an effective legal remedy, as interpreted by Strasbourg in its most recent decisions, and she concluded that a distinction must be made between the irregularities that shed a doubt on the confidence of citizens in the proper administration of justice as a whole, and those irregularities that do not raise such doubts. AG Sharpston also argued that the decision to appoint three judges instead of two, whilst respecting the selection criteria and ensuring that all three candidates comply with the conditions required by the call, does not pose a risk to the credibility of the administration of justice as a whole^[50].

The Court^[51] stated that the plea alleging the irregularity of the composition of the panel of judges that had delivered the contested decisions had to be verified of the court’s own motion. The guarantees of access to an independent and impartial tribunal previously established by law, and in particular those which determine what constitutes a tribunal and how it is composed, represent the cornerstone of the right to a fair trial. That right means that every court is obliged to check whether, as composed, it constitutes such a tribunal where a serious doubt arises on that point. Such a doubt did indeed exist in the present case since the composition of the panel of judges had been found to be irregular in an earlier judgment of the General Court^[52].

The Court also ruled that the irregularity in the appointment procedure resulted exclusively from the Council’s disregard for the public call for applications. However, the use of the list of candidates for the purpose of making the appointment to the third post appears otherwise to have accorded with the rules governing the procedure for the appointment of judges to the Civil Service Tribunal^[53].

Next, the Court held that that irregularity does not constitute a breach of the principle of the lawful judge laid down in the first sentence of the second paragraph of Article 47 of the Charter. An irregularity committed during the appointment of judges within the judicial system concerned entails a breach of that principle, particularly when that irregularity is of such a kind and of such gravity as to create a real risk that other branches of the State, in particular the executive, could exercise undue discretion undermining the integrity of the outcome of the appointment process and thus give rise to a reasonable doubt in the minds of individuals as to the independence and the impartiality of the judge or judges concerned^[54].

Finally, the Court held that the error of law vitiating the judgments under review affect the unity and consistency of EU law. Those judgments could constitute precedents that could have repercussions for other cases in which the appointment of a member of a panel of judges and, more generally, the right to an independent and impartial tribunal previously established by law is put in issue. That right is fundamental and cuts across all subject areas in the EU legal order, the interpretation and the consistency of which must be ensured by the Court of Justice^[55].

At a time in which the Court of Justice is being called to review judicial reforms in some Member States, this case is another chapter in the evolving development of a European framework on judicial integrity and the proper functioning of the courts in turbulent times^[56].

Footnotes

^[1] A work of reference in this filed is represented by a monograph of the person we celebrate in this volume, Fl.A. Baias, Simulația. Studiu de doctrină și jurisprudență, Ed. Rosetti, București, 2003.

^[2] E.g. C.-W. Chen, Apparence et représentation en droit positif français, BDP. Tome n° 340, LGDJ, 2000.

^[3] E.g. W.M. Gordon, Communis error facit ius, in A. Burrows, D. Johnston, QC, R. Zimmermann (eds.), Judge and Jurist: Essays in Memory of Lord Rodger of Earlsferry, OUP, Oxford, 2013, p. 447-454.

^[4] For an extensive assessment of „supranational”, see A. Skordas, L.D. Spieker, Supranational Law, in A. Peters, R. Wolfrum (eds.), Max Planck Encyclopedia of Public International Law, OUP, Oxford, 2021.

^[5] G. Cornu, Vocabulaire juridique, 13e édition, P.U.F., Paris, 2020. In the Romanian legal scholarship, M. David offers an extensive assessment of this doctrine: M. David, Eseu asupra cunoașterii in dreptul civil, Ed. Universul Juridic, București, 2017.

^[6] For an example of the applicability of the doctrine of appearances in the field of successions and wills, see C. Toader, R. Popescu, Considerații în legătură cu aplicarea principiului aparenței în drept în materia moștenirii, in Dreptul, no. 9/1993, p. 33-41.

^[7] It is our understanding that a similar approach has never been take in the legal scholarship, thus it represents a novelty.

^[8] In French “La théorie de l’apparence”. The civil law systems use appearance, singular, not plural. The plural form is common for the case-law of the E.C.H.R. and the C.J.E.U.

^[9] Judgement of 21 February 2006, Case C-255/02, Halifax, EU:C:2006:121. For an overview see, Y. Sérandour, L’abus de droit selon la C.J.C.E. À propos de l’arrêt Halifax, in Revue de droit fiscal, Comm. 16, 2006, p. 846-849; C.F. Costaș, Efectele practicilor abuzive în materie de TVA în dreptul comunitar, in R.R.D.A., no. 3, 2007, p. 127-133.

^[10] Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonization of the laws of the Member States relating to turnover taxes – Common system of value added tax: uniform basis of assessment, O.J. L 145 of 13.6.1977.

^[11] Case C-255/02, § 86.

^[12] Ibidem, § 56-57.

^[13] Judgement of 6 July 2006, Joined Cases, C-439/04 and C-440/04, Kittel and Recolta Recycling, EU:C:2006:446.

^[14] Ibidem, § 60.

^[15] Ibidem, § 61.

^[16] Ibidem, § 51.

^[17] Judgement of 20 June 2013, Case C-653/11, Newey, EU:C:2013:409.

^[18] Ibidem, § 44.

^[19] Ibidem, § 45. For an overview of the regime of simulation in civil law procedure see Fl.A. Baias, C. Leaua, Unele considerații privind simulația în procesul civil, în R.R.D.P. no. 3/2012, p. 40-57.

^[20] See also Article 15 of the (New) Romanian Civil Code.

^[21] Ibidem, § 49.

^[22] Ibidem, § 52.

^[23] Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, O.J. L 347 of 11.12.2006.

^[24] Order of 3 September 2020, Case C-611/19, Crewprint, EU:C:2020:674, § 45; Order of 3 September 2020, Case C-610/19, Vikingo, EU:C:2020:673, § 66.

^[25] Judgement of 1 July 2021, Case C-521/19, CB, EU:C:2021:527.

^[26] Ibidem, § 39.

^[27] Judgement of 17 January 1970, Delcourt v. Belgium, Ap. no. 2689/65, § 31. The dictum was formulated by Lord Chief Justice Hewart in R v. Sussex Justices, ex parte McCarthy [(1924) 1 KB 256, (1923) All ER Rep 233].

^[28] Judgement of 30 October 1991, Borges v. Belgium, Ap. No. 12005/86.

^[29] Judgement of 7 June 2001, Kress v. France, Ap. no. 39594/98.

^[30] For a complete presentation of the judgements, see F. Sudre (ed.), Les grands arrêts de la Cour européenne des droits de l’homme, Thémis, 8th edition, 2019, p. 352-362.

^[31] Kress v. France, § 85-86.

^[32] Ibidem, § 87.

^[33] The concept has not been received smoothly neither by the legal scholarship, nor by the practice. See the numerous dissenting opinions in Borges v. Belgium and the partly dissenting opinion in Kress. v. France. See, equally, P. Martens, La tyrannie de l’apparence, Revue trimestrielle des droits de l’homme, 1996, p. 640-644.

^[34] See, for example, L. Pech, D. Kochenov, G. Butler, K. Cath with numerous articles on the independence of judges and the reform in Poland on platforms such as http://blog.renforce.eu/; https://reconnect-europe.eu/category/blog/; https://verfassungsblog.de/. See also M. Krajewski, The AG Opinion in the Celmer Case: Why the Test for the Appearance of Independence is Needed, VerfBlog, 2018/7/05, https://verfassungsblog.de/the-ag-opinion-in-the-celmer-case-why-the-test-for-the-appearance-of-independence-is-needed/, DOI: 10.17176/20180705-145922-0.

^[35] Judgement of 25 July 2018, Case C-216/18 PPU, LM, EU:C:2018:586. This case lead to numerous discussions in the legal academia. For example, D. Sarmiento, A comment on the C.J.E.U.’s judgment in LM, Maastricht Journal of European and Comparative Law, (25) 4, 2018, p. 385-387; M. Wendel, Indépendance judiciaire et confiance mutuelle: à propos de l’arrêt LM, Cahiers de droit européen, n° 1, 2019, p. 189-215; T. Konstadinides, Judicial independence and the Rule of Law in the context of non-execution of a European Arrest Warrant: LM, Common Market Law Review, (56) 3, 2019, p. 743-769.

^[36] For the principle of mutual trust, see C. Toader, La confiance mutuelle, fondement et témoignage de la valeur de l’Union européenne, in B. Hess, K. Lenaerts (eds), The 50^th Anniversary of the European Law of Civil Procedure, Nomos Verlag and Max Planck Institute for Procedural Law, Luxemburg, 2020; C. Toader, De la confiance mutuelle et des émotions dans l’acte de justice. Essai à l’occasion de l’anniversaire de Marek Safjan in K. Szczepanowska-Kozłowska (ed.), Profesor Marek Safjana znany i nieznany. Księga jubileuszowa z okazji siedemdziesiątych urodzin, C.H. Beck, Warsaw, 2020, p. 491-495; K. Lenaerts, La vie après l’avis: Exploring the principle of mutual (yet not blind) trust, Common Market Law Review, (54) 3, 2017, p. 805-840.

^[37] Judgement of 19 November 2019, Joined Cases C-585/18, C-624/18 and C-625/18, A.K. (Independence of the Disciplinary Chamber of the Supreme Court), EU:C:2019:982. For a complete assessment, see M. Leloup, An uncertain first step in the field of judicial self-government, ECJ 19 November 2019, joined cases C-585/15, C-624/18 and C-625/18, A.K., CP and DO, European Constitutional Law Review, (16) I, 2020, p. 145-169 (EN).

^[38] Joined Cases C-585/18, C-624/18 and C-625/18, §127.

^[39] For the interaction between C.J.E.U. and E.C.H.R., see A. Rosas, The European Union and Fundamental Rights/Human Rights: Vanguard or Villain?, Adam Mickiewicz University Law Review, no. 7, 2017, p. 7-24.

^[40] Joined Cases C-585/18, C-624/18 and C-625/18, § 128.

^[41] Opinion of AG Tanchev, Joined Cases C-585/18, C-624/18 and C-625/18, EU:C:2019:551, § 119-123.

^[42] Ibidem, § 71.

^[43] M. Krajewski, M. Ziółkowski, The Power of ‘Appearances’, VerfBlog, 2019/11/26, https://verfassungsblog.de/the-power-of-appearances/, DOI: 10.17176/20191126-122149-0.

^[44] Joined Cases C-585/18, C-624/18 and C-625/18, § 134.

^[45] Judgement of 24 June 2019, Case C-619/18, Commission v. Poland, EU:C:2019:531. For an overview, see H. Pauliat, Abaissement de l’âge de la retraite des magistrats: une atteinte à l’indépendance de la justice reconnue en Pologne, La Semaine Juridique (édition générale), nº 29,2019, p. 1424-1428.

^[46] The AK Judgement, § 135-154.

^[47] The Romanian legal system and the issue of independence of justice was assessed recently by the E.C.H.R., see Judgement of 5.08.2020, Kovesi v. Romania, Ap. no. 3594/19. The Court of Justice ruled equally recently on a series of Romanian reforms in the areas of judicial organisation and the disciplinary regime applicable to judges, see Judgement of 18.05.2021, Joined Cases C-83/19, C-127/19, C-195/19, C-291/19, C-355/19, and C-397/19, Asociația ‘Forumul Judecătorilor din România’, EU:C:2021:393. See, more recently, C-204/21R Commission v. Poland, Order of 14 July 2021 of the Vice-president of the C.J.E.U., interim measures, EU:C:2021:593

^[48] Judgement of 26 March 2020, Joined Cases C-542/18 RX-II and C-543/18 RX-II, Simpson v. Council, EU:C:2020:232.

^[49] Question asked by AG Sharpston, Opinion of AG Sharpston, Joined Cases C-542/18 RX-II and C-543/18 RX-II, Simpson v Council, EU:C:2019:977, § 1.

^[50] Ibidem, § 82-87.

^[51] For a complete assessment, see M. Leloup, The appointment of judges and the right to a tribunal established by law: The ECJ tightens its grip on issues of domestic judicial organization: Review Simpson, Common Market Law Review, (57) 4, 2020, p. 1139-1162.

^[52] Joined Cases C-542/18 RX-II and C-543/18 RX-II, § 53-57.

^[53] Ibidem, § 64-67.

^[54] Ibidem, § 77-83.

^[55] Ibidem, § 84-87.

^[56] D. Sarmiento, Judicially reviewable appointments at the Luxembourg court? A comment on Simpson (C-542/18 RX-II and C-543/18 RX-II), 18 September, 2019, available at https://eulawlive.com/blog/2019/09/18/judicially-reviewable-appointments-at-the-luxembourg-court-a-comment-on-the-ags-opinion-in-simpson-c-542-18-rx-ii-and-c-543-18-rx-ii/.