Speech is silver: Is silence golden?

The first three waves of the Romanian ‘rule of law’ requests for preliminary ruling allow inter alia the CJEU to explicitly qualify the long-established right of national ordinary courts to referunder Article 267 TFEU, without any limitations, as an expression of the principle of rimacy of the European Union law. Also, since the Romanian context has transformed the ‘rule of law’ questions into genuine appeals for assistance from judges concerned by or even subject to disciplinary proceedings, the concept of ‘res judicata’ gains here a dimension other than strictly legal. On the other hand, the rule of law crisis has challenged the caselaw of the ECtHR as well, ‘rule of law’ cases being declared admissible under art. 34 ECHR and adjudicated as individual applications of magistrates in high-ranking national positions (see, in the Romanian context, Kövesi v Romania, no. 3594/19, but also the leading case of Baka v Hungary, no. 20261/12). Against this specific national background and drawing a comparison with the Hungarian IS case - the first instance when a Hungarian judge has stayed proceedings to ask the CJEU preliminary questions about the independence of national courts - this paper aims to underline the synergies between Article 267 TFEU and Article 10 ECHR. If Article 267 TFEU enshrines cooperation mechanisms between the CJEU and the “courts or tribunals” of a Member State, its efficiency relies in fact on the national judges. Would that allow the assumption that national judges trigger rights from the essentially procedural provisions of the said article? Moreover, since however judges hold public offices and are entitled to refer to the CJEU only in an official, not in a private capacity, could the state interference with this right – a fortiori if it takes the form of individual disciplinary sanctions – be qualified as a violation of an individual human right? It is noteworthy that relevant synergies between the two European supranational courts have already occurred in many a case in which the mechanism of Article 267 TFEU has been at stake, so far from the perspective of the parties in the main national proceedings and mostly under Article 6 ECHR. While a clear answer to these questions remains difficult at the present moment, the paper integrates the standards recently developed by the ECtHR in Żurek v. Poland.