Darren Harvey, Senior Lecturer in Law, Kings College London
Photo
credit: Lukas Plewnia, via Wikimedia
Commons – see also www.polen-heute.de
Introduction
Much
has been written in praise of the Court of Justice’s role in promulgating legally
binding obligations pertaining to judicial independence on the basis of Article
19(1) TEU. To ensure
effective legal protection in the fields
covered by Union law, Member States must ensure that all national courts which
may rule on the interpretation or application of Union law meet the
requirements of independence, impartiality and previous establishment by law.
But might there be a trap door built into
the rather impressive stage that the Court has been constructing in recent
years? I happen to think so. Simply stated, my concern is this – what happens
when national courts try to interpret and apply the manifold legal principles flowing
from the CJEU’s judicial independence case law and get things wrong?
The stakes have recently been raised by
the CJEU’s confirmation in AW
“T” that provisions of national law may
need to be declared null
and void as a matter of domestic law whenever
they infringe EU judicial independence standards. This includes lower-instance
courts being obliged to find decisions of hierarchically superior national
courts to be null and void.
Thus, in the name of protecting the rule
of law, one now faces the very real prospect of national courts (either in good
or in bad faith) expunging measures from their domestic legal systems on the
basis of an erroneous application of EU judicial independence standards.
The
Risk of National Courts (incorrectly) Policing Judicial Independence
The recently decided Daka
case offers a good illustration of the concerns at play here. The case
concerned decisions taken by the President of a national court to re-assign
judges from one chamber to another chamber of that court. Those re-assignment
decisions were taken without the consent of the re-assigned judges, did not
contain any reasons and did not seem to be open to judicial challenge.
Furthermore, the appointment of the court President issuing the relevant decisions
was itself incompatible with Article 19(1) TEU. These factors prompted a
national court, composed of re-assigned judges, to refer questions on the
compatibility of the above with Article 19(1) TEU. In response, the CJEU surprised
commentators (here
and here)
by finding that the re-assignment decisions of the non-independent court
President were compatible with judicial independence standards flowing from
Article 19(1) TEU.
But what if, instead of seeking guidance
from the CJEU, the national court in Daka had concluded, not
unreasonably in my view, that the re-assignment decisions were contrary to EU
standards of judicial independence? In light of the abovementioned development
in AW
“T.” , a
national court in a position similar to that in Daka might plausibly
conclude that that national measure must be declared null and void.
The problem, however, is that we know that
in Daka itself such a finding would have been incorrect as a matter of
EU law. And it is here, I submit, that a possible trap door becomes partially
visible. The problem stems from the role that EU law requires national courts to
play in defending judicial independence on the ground in the Member States. According
to settled
case law, “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 check is an
essential procedural requirement, compliance with which is a matter of public
policy and must be verified of the court’s own motion,.” There is also an “inextricable
link” between the requirement of access to
a court or tribunal previously established by law and the guarantees of independence
and impartiality of judges. Finally, the requirements of judicial independence flowing
from Article 19(1) TEU are capable of direct
effect and must, therefore, be dutifully
applied by national courts. It follows that the main responsibility for ensuring compliance EU
judicial independence standards lies with national courts, whether in relation to
their own independence, or the independence of other courts.
Consider in this regard the recent
judgment on whether Article 19(1) TEU precluded
national rules on setting national judicial salaries.
In that case, the CJEU set down several very detailed principles that must henceforth
be considered when national authorities enact rules for setting national judicial
salaries. These principles also form the basis of any subsequent judicial
review. They are intended to be applied by national courts to national rules
and practices. Accordingly, what would prevent a national judge from incorrectly
applying those principles in a future case and deciding, as a result, that
national rules on judicial salaries must be disapplied or even declared null
and void? And what if that national judge erroneously finds a violation of
Article 19(1) TEU in such a case, without ever having referred the matter to
Luxembourg? Crucially, the wide-ranging scope of application of Article 19(1)
TEU means that virtually
all national laws and practices touching
upon the organization of justice within the State could now suffer a similar
fate. Thus, far greater disruption can be caused to national legal orders by a
misapplication of EU judicial independence principles than in other areas of EU
law. There is a world of difference between a national court erring in its
application of EU law governing free movement of workers, say, and the same
national court erring in its conclusion that the national supreme court lacks
independence under Article 19(1) TEU standards, with all the consequences that
that may now entail.
It is worth dwelling on what those consequences
might now be for national justice systems. As
Dougan points out, disapplication is an
individual remedy provided by a national court to resolve a particular dispute.
Once disapplied, the national law in question remains in existence and
operation for all other purposes. In contrast, declaring a provision of
national law to be null and void is a remedy of general effect and application.
The relevant national provision, once nullified, ceases to exist, including for
all other purposes. Thus, Dougan
notes that nullity is “a very different,
more robust and more far-reaching, response to incompatibility than
disapplication.” The former “carries potentially widespread and more
penetrating implications within and across the national legal system, for
example as regards the impact on other relationships, and for other powers or
actions, as well as for third parties.” Admittedly, the circumstances in which
this novel remedy of nullity will be required as a matter of Union law remain
uncertain. Nonetheless, there would appear to
be more at stake for the functioning of national justice systems in a world
where national courts may declare measures of national law to be null and void.
One must also be attentive to an
altogether more worrying prospect that, I believe, is now in play here. In the
name of EU judicial independence standards, lower-instance courts may utilise
these developments to disapply or invalidate judgments of hierarchically
superior national courts. It is perfectly foreseeable that, in some national
legal orders, first instance courts and tribunals will be far more susceptible
to having their independence eviscerated by the ruling executive than apex
courts in that state. In circumstances where the constitutional or supreme
court remains independent, but the lower courts do not, Article 19(1) TEU,
coupled with the primacy principle, can now be used (in bad faith) by those
captured lower courts to effectively neutralize decisions of their
(independent) superior courts that would otherwise be binding upon them. Again,
this can be done (disingenuously of course) in the name of upholding EU
standards of independence.
Case
C‑448/23, Commission v Poland (Polish Constitutional Tribunal) as a Possible
Solution?
Now, the response here might be to fall
back on the classic doctrines of EU law. The risk that national courts might
err in their application of EU law has always been a structural feature of the
EU legal system. There is nothing novel or surprising about EU law disrupting
national judicial hierarchies. The above may be nothing more than an extension
of Simmenthal to the rule of law context. Moreover, tools such as Article 258 TFEU infringement
proceedings and actions for state liability
in damages serve to mitigate
against these risks. It may also be possible to appeal against a judgment of a
national court that allegedly misapplies Article 19(1) TEU, and for any
appellate court to subsequently refer the matter to Luxembourg. However, all these
corrective mechanisms have shortcomings
that will be familiar to readers of this blog.
It is with this in mind that we can turn,
in closing, to the recent CJEU judgment concerning the Polish
Constitutional Tribunal. In my view, the judgment
makes some important points about the role of national courts in ensuring
compliance with Article 19 TEU standards, particularly in light of the problem I
have identified above. The judgment hints in places (paras 102-120) at a
solution to those problems that would centralize review in Luxembourg. The
Court stresses that it has exclusive jurisdiction to give definitive and
binding interpretations of EU law, including the requirements flowing from
Article 19(1) TEU. Then, “in order to ensure the uniform application of EU law in
all the Member States, as is required by Article 19(1) TEU, those requirements
cannot depend on the interpretation of provisions of national law, or on the
interpretation of provisions of EU law by a national court, which does
not correspond to that of the Court (para 210, emphasis added). Thus, Article
267 TFEU sets up a system of judicial dialogue between national courts and the
CJEU with the aim of securing the uniform interpretation of EU law. “This is consequently the path that a
national court must take when it has doubts as to the compatibility of
national law with a provision of EU law requiring interpretation of the
latter.” (para 212, emphasis added). Moreover, the obligation upon national
courts to disapply any national rule that is inconsistent with Article 19 TEU
arises “in the event of an established infringement of the second
subparagraph of Article 19(1).” (para 115, emphasis added). Finally, the
obligation to declare provisions of national law to be null and void is said to
arise when “a national court or tribunal which has referred a question to the
Court for a preliminary ruling” and subsequently “concludes that it is apparent
from all the conditions and circumstances” that national law is incompatible
with Article 19(1) TEU (para 120).
To my mind, these passages hint in the
direction of finding that national courts must refer questions to
Luxembourg whenever they harbour doubts as to the compatibility of national law
with Article 19 TEU standards. How else would a national court ensure that it
did not arrive at an interpretation
of Article 19(1) TEU that does not correspond to that of the CJEU? How else
might a national court determine that there had been an “established
infringement” of Article 19(1) TEU before disapplying or nullifying the
infringing provision of national law? Such a centralized solution, if
confirmed, would essentially
extend the Foto-Frost
obligation to refer to Luxembourg questions of validity of national law when
they arise in relation to Article 19(1) TEU. Such a solution would certainly
mitigate against the risks of national courts causing major disruption to the
organization of national justice systems whenever they incorrectly apply EU
judicial independence standards. However, it would sit uncomfortably with the
structure and wording of Article 267 TFEU, which affords lower-instance
national courts with a discretion to refer (or not refer) questions of
interpretation to Luxembourg. It would also sit uncomfortably with the obligation
that direct effect and primacy place on all national courts to give full and
immediate effect to Article 19(1) TEU standards by disapplying inconsistent
provisions of national law. The alternative reading is that determinations of
whether national rules and practices comply with Article 19(1) TEU standards remains
a task that is primarily for national courts, most of whom are not obliged to
refer such matters to Luxembourg.
Conclusion
The above is an attempt to
articulate what I take to be a difficulty in the law of judicial independence
as it currently stands. There is always a risk in such endeavours that one is
identifying a problem that does not really exist. Perhaps there is no trap door
built into the stage. It is also possible that the problem identified does exist,
but is not as significant or difficult to solve as the above analysis might suggest.
To be corrected on either of these points would be very helpful. It would mean
that the stage rests on a firmer foundation than first feared. Alternatively,
the above analysis might well be on to something. If that proves to be true, it
will at least offer the consolation of being persistently troubled about the
right sort of thing.
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