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’.[1] 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]
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’.[3] 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.[4]
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.[5]
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.[6] 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’.[7] 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’.[8] 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’.[9] This rule extends to
appointment of judges to managerial posts and to the designation of
prosecutors,[10] 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.[11]
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,[12]
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,[13] and
with sufficient clarity.[14]
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’.[15]
The rights of the defence and adjudication within a reasonable time are also to
be protected in such proceedings.[16]
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.[17]
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.’[18]
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.[19]
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.[20]
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.[21]
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.[22]
Interim relief must also be available under Member State law to guarantee the
independence of the judiciary,[23]
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.[24] Pending a ruling on independence, a judge
should not be appointed,[25]
and any order issued by such a judge must be voided, in accordance with the
primacy of EU law.[26]
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.[27]
Given that the Article 47 of the Charter has been held to have direct effect,[28]
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.[29] 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.[30]
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.[31]
[1]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>.
[2] 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).
[3]
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.
[4] 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.
[5] E.g. judgment of 15
July 2021, Commission v Poland (Régime disciplinaire des juges) EU:C:2021:596,
[51], (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, [162]. 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).
[6] Judgment of 20 April 2021, Repubblika v Il-Prim Ministru, C-896/19, EU:C:2021:31.
[7] [52].
[8] [65].
[9] Judgment of 2 March
2021, A.B. et al (Appointment of judges
to the Supreme Court – Actions), C-824/18, EU:C:2021: [153], [150] and [167]. 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.
[10] 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
[11] Ibid, [224 to 241].
[12] 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, [114]
[13] Judgment of 15 July 2021, Commission v Poland (Régime disciplinaire des
juges), C-791/19, EU:C:2021:596, [134]. 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/
[14] Ibid [140] and the case law
cited.
[15] 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/
[16] 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]
[17] Ibid [227] 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.
[18]
Judgment of 16 November 2021, WB and Others, Joined Cases
C-748/19 to C-754/19, EU:C:2021:931, [44]
[19] Ibid. See also
the judgment of 2 March 2021, AB and Others, C-824/18; EU:C:2021:153 [74
and 75].
[20] 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 [141] of the judgment
of 2 March 2021, AB and Others, C-824/18; EU:C:2021:153.
[21] Judgment of 23 November 2021, IS (Illegality of the order for
reference), C-564/19, EU:C:2021:949.
[22] 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, [81] 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.
[23] Judgment of 6 October 2021, WZ,
C-487/19? EU:C:2021:798 [142]
[24] 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.
[25] Judgment of 6
October 2021, WZ, C-487/19, EU:C:2021:798 [143].
[26] Ibid, [155]
[27] Judgment of 2 March 2021, AB and Others,
C-824/18; EU:C:2021:153, [143], 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.
[28] Ibid, [145].
[29] Ibid, [146].
[30] Ibid [114] and the case law
cited.
[31] 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.
This comment has been removed by a blog administrator.
ReplyDelete