European norms on the independence of the judiciary and the rule of law
The following is a precise of the most recent developments on the question of independence of the judiciary and the rule of law. It is to be read in conjunction with paragraphs 47.349 to 47.359 in S. Peers, T. Hervey, J. Kenner, and A. Ward (eds.) The EU Charter of Fundamental Rights: a Commentary (2021, Bloomsbury, second edition).
Manifestly irregular judicial appointments
Manifestly irregular judicial appointments
1. The question of manifestly irregular judicial appointments has been addressed in case law of both the European Court of Human Rights and the CJEU. The former tribunal has confirmed that Article 6(1) ECHR is also applicable to proceedings before constitutional courts. It follows that a panel of a constitutional court which includes an individual irregularly elected to this body, and manifestly violating, inter alia, the said constitutional court’s previous judgments, cannot be said to be a ‘tribunal established by law’. In two subsequent judgments, the European Court of Human Rights has further established that Poland’s two newly chambers created by Poland’s current governmental coalition do not constitute tribunals established by law within the meaning of Article 6(1) ECHR due inter alia to the undue influence exercised by the legislative and executive powers and the fundamental irregularities that adversely affected the procedure for appointing judges to these two new chambers.
2. The CJEU has equally held in its ruling in Case C-487/19 with reference to the second subparagraph of Article 19(1) TEU and the principle of primacy of EU law that the order by which a judge dismissed the action of a judge transferred against his will must be declared null and void if the appointment of the deciding judge ‘took place in clear breach of fundamental rules which form an integral part of the establishment and functioning of the judicial system concerned’ and ‘the integrity of the outcome of that procedure is undermined … with the result that that order may not be regarded as being made by an independent and impartial tribunal previously established by law’. Most recently, the European Commission launched its first ever infringement action against a Member State on account of the unlawful appointments made to the national constitutional court in breach of the fundamental rules forming an integral part of the establishment and functioning of the system of constitutional review in the Member State, which led the Commission to conclude that the said constitutional court no longer meets the requirements of a tribunal previously established by law, as required by Article 19(1) TEU.
3. It is now firmly established that compliance by a Member State with the values enshrined in Article 2 TEU is a condition for the enjoyment of all of the rights deriving from the application of the Treaties to that Member State. In consequence, a Member State cannot amend its legislation in such a way as to bring about a reduction in the protection of the value of the rule of law, a value which is given concrete expression by, inter alia, Article 19 TEU. The Member States are thus required to ensure that, in the light of that value, any regression of their laws on the organisation of justice is prevented, by refraining from adopting rules which would undermine the independence of judges.
4. Development of jurisprudence on manifestly irregular judicial appointments has not emanated exclusively from Poland. In this context, one must also take due note of the CJEU’s Grand Chamber judgment as regards the provisions governing judicial appointments in Malta in which the Court was asked inter alia to clarify whether the second subparagraph of Article 19(1) TEU and Article 47 of the Charter must be interpreted as precluding national laws conferring a decisive power to the Prime Minister with respect to the appointment of new judges. For the Court, Article 47 of the Charter was not, as such, applicable to the dispute, because the plaintiff was not relying on a right conferred on it by a provision of EU law. The second subparagraph of Article 19(1) TEU was, by contrast, relevant and applicable as it sought ‘to ensure that the system of legal remedies established by each Member State’ guaranteed ‘effective judicial protection in the fields covered by EU law’. For the first time, the Court also explicitly held that ‘the second subparagraph of Article 19(1) TEU must be interpreted as precluding national provisions relating to the organisation of justice which are such as to constitute a reduction, in the Member State concerned, in the protection of the value of the rule of law, in particular the guarantees of judicial independence’. The Court did not, however, detect any regression as far as the situation in Malta was concerned, to the extent the process of appointing judges appeared to have been made more objective following the establishment of a sufficiently independent Judicial Appointments Committee.
Objective legitimate doubts with respect to independence
5. The CJEU has clarified that the second subparagraph of Article 19(1) TEU must be interpreted as precluding national legislative changes where it is apparent that these changes ‘are capable of giving rise to legitimate doubts, in the minds of subjects of the law, as to the imperviousness of the judges appointed, by the President of the Republic of Poland, on the basis of those decisions of the KRS [National Council of the Judiciary], to external factors, in particular, to the direct or indirect influence of the legislature and the executive, and as to their neutrality with respect to the interests before them and, thus, may lead to those judges not being seen to be independent or impartial with the consequence of prejudicing the trust which justice in a democratic society governed by the rule of law must inspire in subjects of the law’. This rule extends to appointment of judges to managerial posts and to the designation of prosecutors, with the CJEU having held that Member State rules governing the personal liability of judges for judicial error can be inconsistent with Article 2 TEU and the second subparagraph of Article 19 (1) TEU.
6. The same applies to the appointment of judges to disciplinary chambers. Such appointments are to contain safeguards to secure the independence of judges subject to disciplinary regimes, seen from this objective standard. Further, in order to avoid any risk of a disciplinary regime being used as a system of political control of the content of judicial decision, such a regime must include rules defining the forms of conduct which constitute a disciplinary offence, and with sufficient clarity.
7. In addition to this, too broader a discretion in the hands of an individual judge in the designation of the competent disciplinary tribunal to adjudicate on a given case is inconsistent with the requirement under EU law (notably Articles 19 (1) TEU, 47 and 48 of the Charter) for tribunals to be ‘established by law’. The rights of the defence and adjudication within a reasonable time are also to be protected in such proceedings.
8. Finally, given that the Article 267 reference mechanism is a keystone of the EU judicial edifice, provisions of national law which expose national judges to disciplinary proceedings as a result of the fact that they made a reference for a preliminary ruling to the CJEU cannot be permitted. Equally, objections to the effect that the referring body did not amount to a ‘court or tribunal’ under Article 267 TFEU for failure to comply with domestic requirements with respect to its composition will not be reviewed by the CJEU, given the established rule that ‘it is not for the Court, in view of the distribution of functions between itself and the national court, to determine whether the order for reference was made in accordance was made in accordance with the rules of national law governing the organisation of the courts and their procedure.’ The CJEU is therefore bound by an order for reference in so far as that order has not been rescinded on the basis of means of redress provided by Member State law.
9. Thus, a rule of national law cannot prevent a national court from exercising the discretion to refer under Article 267 TFEU, which is inherent part of the system of cooperation between the national courts and the Court of Justice established in Article 267 TFEU. In consequence, a national court must be able to maintain a reference for a preliminary ruling after it has been made. A national rule the effect of which may inter alia be that a national court will choose to refrain from referring questions for a preliminary ruling to the Court in order to avoid having the case withdrawn from it is detrimental to the prerogatives thus granted to national courts and tribunals by Article 267 TFEU and, consequently, to the effectiveness of the cooperation between the Court and the national courts and tribunals established by the preliminary ruling mechanism. Consequently, while it is in principle permissible for a Member State, for example, to amend its domestic rules conferring jurisdiction, with the possible consequence that the legislative basis on which the jurisdiction of a national court which has made a reference for a preliminary ruling has been established will disappear, or to adopt substantive rules that have the incidental consequence of rendering the case in which such a reference was made devoid of purpose, a Member State cannot, without infringing Article 267 TFEU, read in conjunction with the third subparagraph of Article 4(3) TEU, make amendments to its national legislation the specific effects of which are to prevent requests for a preliminary ruling addressed to the Court from being maintained after they have been made, and thus to prevent the latter from giving judgment on such requests, and to preclude any possibility of a national court repeating similar requests in the future. Similarly, EU law precludes a national supreme court from declaring a request for a preliminary ruling submitted by a lower court unlawful on the ground that the questions are not relevant and/or necessary with EU law directly granting national courts the authority to disregard any national judicial practice which is prejudicial to their right to make a reference to the Court of Justice.
Consequences following from the obligations enshrined in Article 19 (1) TEU
10. Where it is proved that the second subparagraph of Article 19(1) TEU has been infringed, the principle of primacy of EU law must be interpreted as requiring the referring court to disapply relevant national provisions, even in the face of impediments to so doing under domestic constitutional law. Interim relief must also be available under Member State law to guarantee the independence of the judiciary, just as it is before the CJEU to secure compliance of a Member State with a judgment issued in consequence of a direct action instituted by the Commission for non-compliance with respect for the rule of law and the independence of the judiciary inconsistently with Article 2 TEU and the second sub-paragraph of Article 19(1) TEU. Pending a ruling on independence, a judge should not be appointed, and any order issued by such a judge must be voided, in accordance with the primacy of EU law.
11. More broadly, the second subparagraph of Article 19(1) TEU requires Member States to provide remedies that are sufficient to ensure effective legal protection, within the meaning in particular of Article 47 of the Charter, in the fields covered by EU law, meaning that the latter provision must be duly taken into consideration for the purposes of interpreting the second subparagraph of Article 19(1) TEU. Given that the Article 47 of the Charter has been held to have direct effect, the second subparagraph of Article 19(1) TEU imposes on the Member States a clear and precise obligation as to the result to be achieved and that obligation is not subject to any condition as regards the independence which must characterise the courts called upon to interpret and apply EU law. Under the second subparagraph of Article 19(1) TEU, every Member State must ensure that the bodies which, as ‘courts or tribunals’ within the meaning of EU law, come within its judicial system in the fields covered by EU law and which, therefore, are liable to rule, in that capacity, on the application or interpretation of EU law, meet the requirements of effective judicial protection.
12. The remedial rights of Member States are protected, in the sense that the CJEU has ruled that it had jurisdiction to judicially review a resolution of the European Parliament on a proposal calling on the Council of the European Union to determine the existence of a clear risk of a serious breach of the values on which the European Union is founded.
Xero Flor w Polsce sp. z o.o. v. Poland, CE:ECHR:2021:0507JUD000490718. For further analysis, M. Szwed, ‘What Should and What Will Happen After Xero Flor: The judgement of the ECtHR on the composition of the Polish Constitutional Tribunal’, VerfBlog, 9 May 2021, <https://verfassungsblog.de/what-should-and-what-will-happen-after-xero-flor>; M. Leloup, ‘The ECtHR Steps into the Ring: The Xero Flor ruling as the ECtHR’s first step in fighting rule of law backsliding’, VerfBlog, 10 May 2021, <https://verfassungsblog.de/the-ecthr-steps-into-the-ring>.
 See Judgment of 22 July 2021, Reczkowicz v. Poland, CE:ECHR:2021:0722JUD004344719 (the Disciplinary Chamber of the Poland’s Supreme Court is not a tribunal established by law); Judgment of 8 November 2021, Dolińska-Ficek and Ozimek v. Poland, CE:ECHR:2021:1108JUD004986819 (the Chamber of Extraordinary Review and Public Affairs of Poland’s Supreme Court is not an independent and impartial tribunal established by law).
 Case C-487/19, W.Ż., EU:C:2021:798, paragraph 162. See also Opinions of AG Tanchev in W.Ż., C-487/19, EU:C:2021:289 and M.F., C-508/19, EU:C:2021:290.
 European Commission, Rule of Law: Commission launches infringement procedure against Poland for violations of EU law by its Constitutional Tribunal, Press release IP/21/7070, 22 December 2021: https://ec.europa.eu/commission/presscorner/detail/en/IP_21_7070.
 E.g. judgment of 15 July 2021, Commission v Poland (Régime disciplinaire des juges) EU:C:2021:596, , (referring to judgments of 20 April 2021, Repubblika, C‑896/19, EU:C:2021:311, [63 to 65] and the case-law cited, and judgment of 18 May 2021, Asociaţia ‘Forumul Judecătorilor din România’ and Others, C-83/19, C-127/19, C-195/19, C-291/19, C-355/19, and C-397/19, EU:C:2021:393, . For a transversal and comprehensive overview of the Court’s case law starting with ASJP, C-64/16, EU:C:2018:117 and ending with Repubblika, C-896/19, EU:C:2021:31, see L Pech and D Kochenov, Respect for the Rule of Law in the Case Law of the European Court of Justice: A Casebook Overview of Key Judgments since the Portuguese Judges Case (Stockholm, SIEPS, 2021).
 Judgment of 20 April 2021, Repubblika v Il-Prim Ministru, C-896/19, EU:C:2021:31.
 Judgment of 2 March 2021, A.B. et al (Appointment of judges to the Supreme Court – Actions), C-824/18, EU:C:2021: ,  and . See further judgment of 15 July 2021, Commission v Poland (Régime disciplinaire des juges), C-791/19, EU:C:2021:596, [99 to 110]. See further on Poland’s K.R.S, the judgments of 19 November 2019, A.K. and others (Independence of the Disciplinary Chamber of the Supreme Court, C-585/18, C-624/18, and C-625/18, EU:C:2019:982, and of 2 March 2021, AB and Others, C-824/18; EU:C:2021:153.
 Judgment of 18 May 2021, Asociaţia ‘Forumul Judecătorilor din România’ and Others, C-83/19, C-127/19, [C-195/19, C-291/19, C-355/19, and C-397/19, EU:C:2021:393
 Ibid, [224 to 241].
 See most recently judgment of 15 July 2021, Commission v Poland (Régime disciplinaire des juges), C-791/19, EU:C:2021:596. For a The rules developed in the context of disciplinary procedures have been extended by the CJEU to the secondment of judges, see the judgment of 16 November 2021, WB, C-748/19, EU:C:2021:931, and transfer of judges to another court without consent, judgment of 6 October 2021, WZ, C-487/19, EU:C:2021:798, 
 Judgment of 15 July 2021, Commission v Poland (Régime disciplinaire des juges), C-791/19, EU:C:2021:596, . For further analysis, see L. Pech, ‘Protecting Polish Judges from Political Control: A brief analysis of the ECJ’s infringement ruling in Case C-791/19 (disciplinary regime for judges) and order in Case C-204/21 R (muzzle law)’, VerfBlog, 20 July 2021: https://verfassungsblog.de/protecting-polish-judges-from-political-control/
 Ibid  and the case law cited.
 Ibid [164 to 176]. See recently on the concept of ‘established by law’ the Opinion of Advocate General Bobek of 8 July 2021, C-132/20, Getin Noble Bank, EU:C:2021:557, judgment pending. For a critical assessment of this Opinion, see L. Pech and S. Platon, ‘How not to deal with Poland’s fake judges’ requests for a preliminary ruling: A critical analysis of AG Bobek’s proposal in Case C-132/20’, Verfblog, 28 July 2021: https://verfassungsblog.de/how-not-to-deal-with-polands-fake-judges-requests-for-a-preliminary-ruling/
 Ibid [187 to 214]. See further on the rights of the defence, in the context of the presumption of innocence with respect to termination of the secondment of a judge, the judgment of 16 November 2021, WB, Joined Cases C-748/19 and C-754/19, EU:C:2021:931 [88-89]
 Ibid  and the case law cited. See also the judgment of 23 November 2021, IS (Illegality of the order for reference), C-564/19, EU:C:2021:949.
 Judgment of 16 November 2021, WB and Others, Joined Cases C-748/19 to C-754/19, EU:C:2021:931, 
 Ibid. See also the judgment of 2 March 2021, AB and Others, C-824/18; EU:C:2021:153 [74 and 75].
 Judgment of 2 March 2021, AB and Others, C-824/18; EU:C:2021:153, [93 – 95], referring to, inter alia, judgment of 19 November 2019, A.K. and others (Independence of the Disciplinary Chamber of the Supreme Court, C-585/18, C-624/18, and C-625/18, EU:C:2019:982. See also  of the judgment of 2 March 2021, AB and Others, C-824/18; EU:C:2021:153.
 Judgment of 23 November 2021, IS (Illegality of the order for reference), C-564/19, EU:C:2021:949.
 Judgment of 18 May 2021, Asociaţia ‘Forumul Judecătorilor din România’ and Others, C-83/19, C-127/19, C-195/19, C-291/19, C-355/19, and C-397/19, EU:C:2021:393 [242 to 252]. See also judgments of 6 October 2021, WZ, C-487/19? EU:C:2021:798 [155 to 161], and of 2 March 2021, AB and Others, C-824/18; EU:C:2021:153,  and [140 to 148]; judgment of 21 December 2021, Euro Box Promotion e.a., C-357/19, C-379/19, C-547/19, C-811/19 and C-840/19, C:2021:1034.
 Judgment of 6 October 2021, WZ, C-487/19? EU:C:2021:798 
 E.g. judgment of 6 October 2021, Poland v Commission, C-204/21 R – RAP, EU:C:2021:834; judgment of 27 October 2021 R, Commission v Poland, C-204/21 R, EU:C:2021:878.
 Judgment of 6 October 2021, WZ, C-487/19, EU:C:2021:798 .
 Ibid, 
 Judgment of 2 March 2021, AB and Others, C-824/18; EU:C:2021:153, , referring to, inter alia, judgment of 19 November 2019, A.K. and others (Independence of the Disciplinary Chamber of the Supreme Court, C-585/18, C-624/18, and C-625/18, EU:C:2019:982.
 Ibid, .
 Ibid, .
 Ibid  and the case law cited.
 Judgment of 3 June 2021, Hungary v European Parliament, C-650/18, EU:C:2021426. See also the Opinion of Advocate General Bobek of 3 December 2020, EU:C:2020:985, and the Opinion of Advocate General Sánchez Bordona, Hungary v European Parliament and Council, C-156/21, EU:C:2021:974.