Should the EU sanction its Member States for breaches of rule of law and human rights? Part 1: The Legal Framework

Professor Steve Peers, University of Essex

I’ve taught EU law and human rights for over twenty years now, and the issue of sanctions against Member States for human rights breaches used to be the easy bit. Why? Because the procedure to enforce such sanctions (set out in Article 7 TEU) had never been used – and there was no apparent prospect that it ever would be. So there was no need to discuss it in any detail. A more theoretical sort of academic might have spent time counting the angels on the head of this constitutional pin, but I was anxious to move on to the real world issues of arrest warrants and asylum seekers.

Everything has since changed. Like Article 50 – which similarly raises fundamental issues about the EU’s relationship with its Member States – Article 7 was apparently dashed off in previous Treaty amendment talks without much thought to its detailed application in practice, perhaps because its authors thought it would never be used. Yet here we are, with both Articles now a live political and legal issue: the Ragnarok of EU law.

There are two recent parallel major developments. First of all, the Article 7 process has been triggered both against Poland (by the European Commission) and Hungary (by the European Parliament). Secondly, there are case law developments raising general questions about Member States’ observance of human rights and the rule of law outside the very specific (and very political) Article 7 process. In this context, last week the CJEU delivered its first judgment that a Member State is infringing judicial independence by means of reforms to its judicial system (see discussion here).

The prospect of the EU sanctioning its Member States for breaches of human rights and the rule of law raises a number of fundamental legal and political issues – and is best understood in a broader historical context. In light of the recent developments (and ongoing disputes), this is an opportune moment to provide an overview and analysis of this issue.

I’ll do this in a series of three blog posts, addressing in turn:

a)      the legal framework for sanctions under Article 7

b)      the overlap of the sanctions rules with other aspects of EU law

c)       the historical context and broader constitutional dynamics.

The legal framework for sanctions

Although many people refer to Article 7 TEU, there are other Treaty provisions which are inextricably linked: Article 2 TEU sets out the values which Article 7 is used to enforce; Article 354 TFEU describes voting rules for the EU institutions; and Article 269 TFEU provides for limited jurisdiction for the CJEU over the sanctions procedure.  All of this must be distinguished from the normal rules of EU law, discussed in the second blog post.

First of all then, what are the values of the EU, legally speaking? Article 2 TEU states:

The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.

Article 7 then sets out the process of enforcing those values. It begins with Article 7(1), which provides for a kind of ‘yellow card’ – a warning if there is there is ‘a clear risk of a serious breach’ of those EU values:  

1. On a reasoned proposal by one third of the Member States, by the European Parliament or by the European Commission, the Council, acting by a majority of four fifths of its members after obtaining the consent of the European Parliament, may determine that there is a clear risk of a serious breach by a Member State of the values referred to in Article 2. Before making such a determination, the Council shall hear the Member State in question and may address recommendations to it, acting in accordance with the same procedure.

The Council shall regularly verify that the grounds on which such a determination was made continue to apply.

Notice that the ‘yellow card’ process can be triggered by the European Parliament, or a group of Member States, or the Commission. There is no requirement of unanimity of Member States to approve a Council decision to issue a ‘yellow card’ (this is a common misunderstanding), but the threshold of four-fifths of Member States’ governments in the Council is nevertheless fairly high. Triggering the process (as the EP did for Hungary, and the Commission did for Poland), does not, as some think, mean that the Council will agree to issue a ‘yellow card’, or has done so already. Indeed, the Council is still considering the proposals to issue a ‘yellow card’ against both Poland and Hungary, having held several of the hearings referred to in Article 7(1). If the Council ever did issue a ‘yellow card’, note that this does not entail a sanction as such: it is only a finding of a risk to EU values, with possible recommendations. Nevertheless, the issue of a ‘yellow card’ is perceived as extremely politically serious.

This brings us to Article 7(2), which is the ‘red card’ of the process:

2. The European Council, acting by unanimity on a proposal by one third of the Member States or by the Commission and after obtaining the consent of the European Parliament, may determine the existence of a serious and persistent breach by a Member State of the values referred to in Article 2, after inviting the Member State in question to submit its observations.

The procedure here is even tougher: unanimity of the Member States. The European Parliament cannot trigger the process, but could veto it  if the Commission or a group of Member States trigger it. The threshold to be met is higher: not just the risk of a serious breach, but the ‘existence of a serious and persistent breach’ of those values. It’s likely that the EU would get to the ‘red card’ stage after issuing a ‘yellow card’, but that’s not a legal requirement: a ‘straight red’, for (say) a country which had suddenly undergone a military coup, is also conceivable.

What are the consequences of a ‘red card’? Article 7(3) sets them out:

…the Council, acting by a qualified majority, may decide to suspend certain of the rights deriving from the application of the Treaties to the Member State in question, including the voting rights of the representative of the government of that Member State in the Council. In doing so, the Council shall take into account the possible consequences of such a suspension on the rights and obligations of natural and legal persons.

The obligations of the Member State in question under the Treaties shall in any case continue to be binding on that State.

Notice that the Member States don’t have to act unanimously in the Council when deciding exactly what sanctions to apply to the black sheep amongst them. The unanimity threshold only applies when taking the previous step of deciding whether there’s a serious and persistent breach of the EU values.  As for the specific sanctions which might be imposed, the Treaty mentions suspension of voting rights, but that’s just one example. The Council might instead (or additionally) impose other sanctions, such as suspension of MEPs’ voting rights (which raises the awkward question of whether they might also end up sanctioning any opposition MEPs from the Member State in question – whose voices would ideally need to be heard). However, there’s an obligation to consider the rights of individuals and businesses, which suggests that trade sanctions might be problematic. It might also be hard to justify restricting free movement rights, but in any event note that there are specific rules on asylum for EU citizens fleeing from a Member State subject to a ‘red card’. (I discuss them further in the second blog post).

Most significantly, there’s no provision to expel a Member State from the EU as such. Having said that, a Member State subject to suspension might be so outraged to be in that position that it triggers the process of leaving the EU under Article 50. The UK’s withdrawal process has been complicated and controversial enough; now imagine the legal and political complexities of a Member State subject to an Article 7 ‘red card’ triggering Article 50. Should its political authorities’ actions be considered legally and morally valid? What if a group of exiles claim to be the legitimate government of that Member State (a la the USSR-era Baltic States), and that purported government does not wish to leave the EU?  What if a part of that Member State, at odds with the government in power over EU membership and its violation of EU values, attempts to secede?

Of course, the possibility of withdrawal (alongside concerns about sovereignty, and the workings of partisan politics) may also have influenced the pronounced reluctance of the EU to use the Article 7 process. Does the EU really want Michel Barnier’s main task to be crowd control?

Article 7(4) TEU then provides that the Council, again by qualified majority, may ‘vary or revoke’ its sanctions against a Member State ‘in response to changes in the situation which led to their being imposed’. Article 7(5) notes that the rules on voting within the institutions when Article 7 is being applied are set out in Article 354 TFEU. The latter provides that the Member State which is the subject of potential sanctions has no vote at any stage of Article 7, as otherwise this would obviously have made the adoption of any decision on breach of EU values impossible. Abstentions cannot prevent the adoption of a ‘red card’ decision. Where the Council votes to implement a ‘red card’ decision, a higher threshold for adopting EU laws applies (72% of participating Member States in favour, instead of the usual 55%). If a Member State’s voting rights are suspended, the usual rules on Council voting with only some Member States participating apply. For its part, the EP ‘shall act by a two-thirds majority of the votes cast, representing the majority of its component Members’.

Finally, Article 269 TFEU significantly limits the role of the CJEU over the sanctions procedure:

The Court of Justice shall have jurisdiction to decide on the legality of an act adopted by the European Council or by the Council pursuant to Article 7 of the Treaty on European Union solely at the request of the Member State concerned by a determination of the European Council or of the Council and in respect solely of the procedural stipulations contained in that Article.

Such a request must be made within one month from the date of such determination. The Court shall rule within one month from the date of the request.

The legal issues

Given the limit on judicial control of the Article 7 process, it is almost entirely political. So the legal questions arising from it may be largely hypothetical in practice. However, they do exist.

The first important point is the wide scope of issues which can be the subject of the Article 7 process. It is sometimes claimed that the process can only be used to sanction Member States for breaches of EU law, but this is clearly false. There is no reference to EU law breaches in Articles 2 or 7. Indeed, such a limit on the scope of Article 7 would be odd, given that Article 269 TFEU limits the Court’s jurisdiction, yet other provisions of the Treaties (discussed further in the next blog post) give the Court extensive jurisdiction over the enforcement of ordinary EU law.

This claim about the limited scope of Article 7 is also absurd if you consider the broader context. Imagine, for instance, a Member State placing LGBT citizens in concentration camps. A narrow interpretation of Article 7 would mean that the EU could only complain about this to the extent that being locked up in camps would have a discriminatory effect on the detainees’ access to employment. Yes it would, but that would hardly be the most outrageous aspect of detaining LGBT people in camps because of their sexual orientation. (EU law is also relevant to LGBT refugees, but the Article 7 process would have to be triggered first for it to be relevant to refugees who are EU citizens).

So obviously Article 7 is not intended to be limited in this way. Indeed, its broad scope partly explains why the CJEU’s jurisdiction is limited – to avoid giving it jurisdiction to rule on issues which are not normally within the scope of EU law. (Another reason is the intention to keep the Article 7 process in the hands of politicians, not judges).

On the other hand, the Article 7 process and ordinary EU law can overlap. The Court can use its ordinary jurisdiction to rule on an issue being discussed in the Article 7 process, and vice versa. This was confirmed implicitly in last week’s judgment on Poland and the rule of law, given that the issues in that judgment also formed a part of the Commission’s Article 7 case against Poland. In fact, the Advocate-General’s opinion addressed the overlap explicitly (paras 48-50), arguing that ‘[t]here are firm grounds for finding that Article 7 TEU and Article 258 TFEU are separate procedures and may be invoked at the same time’.  As noted already, this alternative option of using ordinary EU law to restrain Member States’ breaches of human rights or the rule of law is discussed in the next blog post in this series.

Exactly how does the Court’s limited jurisdiction over Article 7 work? The wording of Article 269 TFEU definitely covers the decisions on the ‘yellow card’ or the ‘red card’. At first sight, it also applies to the implementation of sanctions, since the text refers to any Council actions pursuant to Article 7 TEU. But on this point, the use of the word ‘determination’ is confusing, as Article 7 doesn’t use that word to refer to the implementation of sanctions,  but only the decisions on whether EU values have been (or might be) breached.

Note also that the only possible challenger is the Member State sanctioned under Article 7 – not any other Member State, an EU institution, or an individual or business. If individuals are barred from challenging the validity of Article 7 implementation decisions, even indirectly via national courts to the CJEU, how else can the Council’s obligation to ‘take into account the possible consequences of such a suspension on the rights and obligations of natural and legal persons’ be enforced? At any rate, there’s no limit on the Court being asked by national courts to interpret the decisions implementing sanctions, which could be significant in working out the impact of sanctions on individuals. In particular, if Council decisions under Article 7 disapply ordinary EU law in some way, there should be no objection to the Court’s ordinary jurisdiction to interpret such ordinary EU law applying.

A Court judgment under Article 269 TFEU can only address procedural issues, not substance. In other words, the Court cannot be asked to rule on the question of whether the Member State concerned has actually breached EU values (or seriously risks breaching them). As we will see in the second blog post, however, the developing case law on the overlap between Article 7 and ‘ordinary’ EU law renders this firewall a little diffuse. Also, one can imagine that a Member State may make arguments about the fairness of the hearings, even where (as in the case of Poland and Hungary) some hearings have been held. (Update, Sep 1 2019: the Council's internal rules on Article 7 hearings have now been published). Finally, the time limits in Article 269 require significant fast-tracking: the challenge must be made one month after the determination (the usual deadline to bring an action to challenge an EU act is two months after publication) and (uniquely in EU law) one month for the Court to give its ruling.  

Even though Article 7 has not resulted in any sanctions decision yet, some issues about its scope may be addressed in the near future, because Hungary has brought a legal challenge to the European Parliament’s decision merely to trigger Article 7. This case might be inadmissible, because usually it is not possible to challenge the start of an EU legal procedure, but only a legal act once adopted, which may explain why Article 269 TFEU makes no reference to challenging acts of the European Parliament at all (or indeed, to challenging acts of the Commission or the Member States). The substance of the Hungarian government’s argument is that the European Parliament wrongly ignored abstentions when counting votes cast to trigger the Article 7 process.

One key legal and political question is the interpretation of the unanimity requirement to issue a ‘red card’ determination of a serious breach of EU values. Some have suggested that since two Member States are facing Article 7 procedures, and they would have a natural tendency to stick together and vote for each other, unanimity can never be reached. Therefore, for the ‘red card’ procedure to be effective, it must be interpreted to mean that any Member State facing an Article 7 procedure must lose its vote even as regards issuing a ‘red card’ against another Member State.

With respect, this interpretation is untenable. Article 354 TFEU refers to ‘the Member State in question’ not voting in its own case – clearly using the singular, as well as the definite article. There is no way to stretch the canons of interpretation for this to refer to multiple Member States. Such wild leaps of legal fancy are particularly inappropriate when a main point of the process is to ensure protection of the rule of law in the European Union.

Conclusions

Article 7 TEU recently turned 20 years old. It was conceived as a political process par excellence, and it remains supremely political at childhood’s end, even as the first attempts to trigger it are made. Due to its impact on national sovereignty, and the web of transnational partisan politics in which the governments concerned are embedded, Article 7 has long been seen as a ‘nuclear weapon’ – only to be used as a last resort, in a political emergency such as a military coup. Although the attempt to nuance Article 7, by adding a ‘yellow card’ process, dates from 2003, in practice this version of the process is perceived as politically ‘nuclear’ too.

The obvious problem here – which the ‘yellow card’ reform sought but failed to address – is that democracy rarely collapses overnight. In the famous words of Michael Rosen, ‘people think that fascism arrives in fancy dress’, but in fact ‘it arrives as your friend’ – promising to:

…restore your honour, 

make you feel proud, 

protect your house, 

give you a job, 

clean up the neighbourhood, 

remind you of how great you once were, 

clear out the venal and the corrupt, 

remove anything you feel is unlike you...

And to that end, and for those reasons, it often gains a foothold through the democratic process. Yet the values of the EU to be protected also include democracy – and the Article 7 process is in the hands of the governments of fellow Member States. All have some skeletons in their own closet; and all have backs that might need some scratching by the governments of the States being criticised.

So is the Article 7 process doomed? In fact, the expansion of EU law in areas with significant relevance to human rights – and the willingness of the CJEU to rule on the judicial independence of national courts in general – means that recourse to the nuclear option may arguably not be necessary. In effect, the conflict over the protection of human rights and the rule of law in Member States can also be fought by conventional means: the ordinary system for the enforcement of EU law as such, to which we will turn in the second post in this series. As for the broader tension when concerns about the rule of law and human rights stem from a democratic outcome, this will be assessed as part of the broader discussion in the third post.  

Barnard & Peers: chapter 9

Photo credit: euobserver

The beginning of the end for Poland’s so-called “judicial reforms”? Some thoughts on the ECJ ruling in Commission v Poland (Independence of the Supreme Court case)

Laurent Pech, Professor of European Law, Middlesex University London

Sébastien Platon, Professor of Public Law, University of Bordeaux

Imagine a faraway land where a government and a parliament dominated by the same party decide to retroactively lower the retirement age of the judges working for the country’s supreme court. Imagine that this change is being presented as a “reform” (allegedly) needed to hold to account judges (allegedly) “shamefully involved” in the country’s previous communist regime which however ended about thirty years ago. Imagine that all of this done with authorities claiming “there is nothing going on in [the country] that contravenes the rule of law” as “judges should always be on the side of the state”.

Surely we cannot be talking about a country belonging to the EU. Sadly, you would be wrong to think so. Indeed, the retirement measure described above was at the heart of the infringement action initiated by the European Commission against Poland last July and which resulted, earlier this week, in the European Court of Justice’s first ruling on the compatibility with EU law of one of Poland’s so-called “judicial reforms”. 

This post will explain the extent to which the Court’s ruling may be considered a landmark one, and the Court’s main findings, before assessing the ruling’s immediate and potential impact.

1. A landmark ruling

For the very first time, the Court of Justice has found a national government to have failed to fulfil its obligations under the second paragraph of Article 19(1) TEU which provides that “Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law.” This is far however from the only “EU law first” one may “credit” to the current Polish authorities:

-          Poland was indeed the first ever EU Member State to be subject to the Commission’s Rule of Law Framework in January 2016;

-          The first EU Member State to be threatened with the payment a fine of at least €100,000 per day in November 2017 by the ECJ should it continue to ignore an interim order adopted by the same Court in July 2017;

-          The first EU Member State to be subject to Article 7(1) TEU proceedings in December 2017;

-          The first EU Member State to have seen its “judicial reforms” provisionally suspended by the ECJ via two interim orders adopted in October and December 2018.

It has now become the first EU Member State to have been found by the ECJ to have failed to fulfil its Treaty obligations by violating both the principles of the irremovability of judges and judicial independence.

As will be shown below, the Court has forcefully and compellingly rejected each one of claims made by the Polish government, including the most recurrent one whereby the Court of Justice would lack jurisdiction to review the multiple, never-ending changes made to the organisation of the Polish judiciary.

2. The Court’s findings

2.1 Organisation of the Polish national justice system as an allegedly exclusive competence immune to EU review

According to the Polish government, supported by the Hungarian government, the organisation of the national justice system constitutes a competence reserved exclusively to the Member States, which would imply that that EU institutions, including the Court of Justice, cannot examine Poland’s “judicial reforms” in light of EU law requirements.

The Court easily explains why this argument cannot survive any serious scrutiny and does so by initially and unusually reminding the Polish government that “as is apparent from Article 49 TEU, which provides the possibility for any European State to apply to become a member” of the EU, Poland “freely and voluntarily committed” itself to respecting and promoting “the common values referred to in Article 2 TEU”, including the rule of law (§ 42). Furthermore, while the Court agrees that “the organisation of justice in the Member States falls within the competence of those Member States”, this obviously cannot be construed as a carte blanche to violate its EU law obligations, not to mention the fact that requiring Poland to comply with its EU law obligations is not akin in any way to exercising “that competence itself” (§ 52). This is merely a reminder of the longstanding difference between the applicability of EU law and the competence of the EU, which explains why EU law can apply in situations where the EU has no competence to legislate.

With respect to the Polish government’s argument that the EU principle of judicial independence can be applicable only in situations governed under EU law, the Court merely reiterates what it previously held in the Portuguese judges ruling. National authorities must respect the principle of judicial independence even in situations where national “judicial reforms” do not implement EU law. Article 19(1) TEU indeed covers any national court which may rule “on questions concerning the application or interpretation of EU law”, in which case any national measure affecting the independence of the said court falls within the fields covered by EU law.

In the present case, it was obvious that Article 19(1) TEU was applicable as it was common ground that Poland’s Supreme Court “may be called upon to rule on questions concerning the application or interpretation of EU law and that, as a ‘court or tribunal’, within the meaning of EU law, it comes within the Polish judicial system in the ‘fields covered by Union law’ … so that that court must meet the requirements of effective judicial protection” (§ 52). It follows that Polish authorities cannot adopt measures which undermine its independence without activating the application of EU law.

2.2 The lowering of retirement age as allegedly required to bring the Supreme Court’s retirement regime in line with the general retirement regime

According the Polish government, it follows from the Court’s own case law, that “that the Member States retain the option to adapt the employment conditions applicable to judges and, thus, their retirement age, in particular in order, as in the present case, to bring that retirement age into line with that provided for in the general retirement scheme, while improving the age structure of officers of the court concerned” (§ 67).

Anyone familiar with the situation in Poland would have immediately found this defence rather surprising. Indeed, the ruling party “has long rallied against what it calls a self-serving “caste” of judges who distort justice for ordinary citizens”. Furthermore, the Polish government’s own “White Paper” of March 2018 indicates that “the reform of judicial retirement age is justified with historical experiences of communism, the failure to account for the past for many years, and pathological [sic] mechanisms of the functioning of courts that have been perpetuated for years” (para 99).

Not unsurprisingly, the ECJ easily came to the conclusion that the forced early retirement of Supreme Court judges is not compatible with the principle of irremovabilily, which is a guarantee of independence. While phrasing this delicately, the Court all but explicitly states that the Polish government has deliberately sought to mislead it when it refers to the information contained in the “explanatory memorandum to the draft New Law on the Supreme Court” and on the basis of which one may have “serious doubts as to whether the reform of the retirement age” was not in fact made “with the aim of side-lining a certain group of judges of that court” (§ 82).

The Court could have stopped there but if only to make it clearer to any future government which might be tempted to follow a similar path, the Court proceeds to perform a proportionality test. In a few words, the Court sees no reason why, for the sake of standardising retirement age, the judges of the Supreme Court should be forced into retirement when all other workers have a right to retire (or not) before holding that the lowering of retirement age with immediate effect, without any transitional measure, is in any event disproportionate.

2.3 Discretionary prerogative granted to the Polish President as (allegedly) required to protect the judiciary

While possibly difficult to believe, the Polish government claimed that “the authorisation conferred on the President of the Republic to decide as to whether to allow” Supreme Court judges “to continue to carry out their duties once they have reached retirement age” constitutes a “prerogative, the specific purpose of which is to protect the judiciary both from interference by the legislative authority and from that by the executive authority” (§ 103).

In other words, it is suggested that the Polish President, itself part of the executive, is the best placed to protect the judiciary from interference by both the executive and legislative branches by deciding alone and in the absence of any substantive conditions, procedural rules and access to judicial review, when to authorise a Supreme Court judge not to be forcibly retired. This is by the way the same office holder who has deliberately ignored court orders, repeatedly attacked Polish judges while also questioning the independence of the Polish ECJ judge and the authority of the ECJ. Even Kafka could not have imagined something more Kafkaesque.

For the Court, the inescapable conclusion is that “by granting the President of the Republic the discretion to extend the period of judicial activity of judges of that court beyond the newly fixed retirement age”, Poland has violated Article 19(1) TEU (§ 124). While explaining why this is so, the Court makes noteworthy observations in relation to the new “National Council of the Judiciary” (NCJ), arguably established in breach of the Polish Constitution and since suspended from the European Networks of Councils for the Judiciary (ENCJ) due to its lack of independence. In a nutshell, the Court explains that the prior involvement of the NCJ cannot “save” the presidential extension regime organised by the Law on the Supreme Court as the NCJ has proved unable to deliver properly reasoned opinions based on objective and relevant criteria to the President for the purposes of authorising Supreme Court judges to continue to carry out their duties.

3. Immediate and potential impact

In a strong editorial, the Financial Times described the Court’s ruling as a landmark one which “will help buttress the rule of law in the EU against authoritarian leaders who have been chipping away at democratic checks and balances with impunity”.

We agree with this assessment.

While the ruling addresses only one of the multiple serious rule of law problems identified by the European Commission in its Article 7 proposal, it does not merely fully confirm the accuracy of the Commission’s diagnosis in the present infringement action but also indirectly its general diagnosis regarding the growing systemic threat to the rule of law in Poland. This legal win is also bound to considerably strengthen the weight of the Commission’s arguments within the framework of ongoing Article 7 proceedings.

The Court’s ruling also establishes a solid de facto precedent with respect to any future attempt in Poland or elsewhere to take control of a court via a retroactive lowering of the retirement age of judges under false pretences. The ruling will similarly add to the growing body of evidence which shows repeated violations by the Polish government of the principle of loyal cooperation in its dealings with the Commission, the Council and now the ECJ.

The Court does not explicitly tackle the question of the NCJ, which was established in 2018 in open violation of what the Commission recommended. The ruling however makes it apparent that the consultation of the NCJ cannot be viewed as an effective safeguard to protect judicial independence. The Court will get a chance to make this crystal clear in Joined Cases C-585/18, C-624/18 and C-625/18. One may expect the Court to follow AG Tanchev and find the new NCJ as lacking the required independence from the legislative and executive authorities. The ramifications of such a finding would be extremely significant as it would essentially mean that every single decision made by the ENCJ-suspended NCJ would be have been made by a compromised body acting in breach of its mandate to safeguard the independence of courts and judges. The potential impact could be extremely significant especially as regards the Polish courts which include the “judges” nominated by the tainted NCJ and appointed by the Polish President.

With respect to the new disciplinary system, the Court could not have more clearly indicated that it shares the Commission’s concerns when it stated that its case-law requires that the rules governing the disciplinary regime “must provide the necessary guarantees in order to prevent any risk of that disciplinary regime being used as a system of political control of the content of judicial decisions” (§ 77). This is virtually the same phrasing used by the Commission when it announced the launch of its latest infringement action regarding Poland’s “reforms” on 3 April 2019. We understand this as an implicit encouragement for the Commission to promptly continue with its action. This means inter alia that it is only a matter of time before the so-called “Disciplinary Chamber” is found to violate the requirements of judicial independence required by EU Law. Again, the ramifications of such a finding would be extremely significant as all of the Disciplinary Chamber’s decisions to date would then have been made by a body masquerading as a court.

Notwithstanding the above, the direct practical consequences of the Court’s ruling will remain modest. Indeed, a significant number of Supreme Court judges had previously refused to subject themselves to the plainly unlawful retirement regime both as a matter of Polish constitutional law and EU law, with all relevant Supreme Court judges requested to return to work following the first interim order by the Chief Justice (the President of the Supreme Administrative Court (SAC) did the same in relation to the SAC judges who were forcibly retired as well). Furthermore, Polish authorities essentially conceded defeat after the final interim order adopted by the ECJ last December (while doing so it however sought to discreetly neutralise some pending preliminary ruling requests in order to prevent the ECJ from examining the NCJ and the Supreme Court’s Disciplinary Chamber in light of the EU requirements of judicial independence).

Most importantly, this ruling does not directly engage with one of the decisive issues raised by the Commission: the decision of the Polish President to increase the number of posts within the Supreme Court, which will eventually enable the ruling party to capture it. However, considering the arguably unlawful nature of the procedure having been used by the Polish President to appoint individuals to the Supreme Court, this issue should eventually reach the ECJ as it was the subject of the most recent preliminary ruling request adopted by a not yet captured chamber of Poland’s Supreme Court on 12 June 2019.

While not addressed by the Court’s ruling, it is to be hoped that within the framework of the infringement action regarding the Polish law on ordinary courts, the ECJ will tackle the forced retirement/dismissal of 61 ordinary court judges. In the absence of any pending actions raising this issue, the ECJ is unlikely to be able to address the dismissal of over 70 court presidents (and 70 vice‑presidents) which took place in 2017-18 on the back of a six-month transitional regime “which gave the Minister of Justice the power to arbitrarily dismiss them without any specific criteria, without justification and without judicial review”. Similarly, to the best of our knowledge, there is no legal action which would enable the ECJ to look into the “the very high number of dismissals and demotions among the Polish prosecutors”.

Lastly, one fundamental issue which is yet to reach the ECJ is the lack of effective constitutional review in Poland ever since the Constitutional Tribunal was unlawfully captured in December 2016, and whose independence and credibility, as recently noted by the Council of Europe Commissioner for Human Rights, “have been seriously compromised by the persisting controversy surrounding the election and the status of its new President and several of its new judges”. This is a key issue which is however bound to arise sooner or later especially if, on the back of successful electoral results, the current ruling party is unable to resit the temptation to further instrumentalise the captured “Constitutional Tribunal”, for instance to justify non-compliance refuse to comply with ECJ rulings on specious constitutional grounds. 

4. Key lesson

The key lesson we draw from this ruling is that any “dialogue” with authorities engaged in rule of law backsliding should be systematically accompanied with the launch of as many infringement actions as possible and as soon as possible.

In the present case, one may not forget how seemingly difficult some within the Commission found it to accept the need for prompt legal action in the first place. To justify legal inaction, we often heard the argument that Article 7 TEU should be considered a lex specialis and therefore exclude the launch of Article 258 infringement actions on issues already highlighted as problematic under any ongoing Article 7 procedure. As observed by AG Tanchev, Article 7 TEU And Article 258 TFEU must however be considered as separate yet complementary procedures which can be invoked in parallel.

To maximise the effectiveness of infringement actions and “prevent the completion of constitutional capture before any eventual ECJ ruling”, accelerated infringement actions ought to be the default position when a Member State openly violates the rule of law. The Commission ought to also systematically request the ECJ to decide these actions under an expedited procedure while also simultaneously request relevant interim measures so as to prevent authorities from changing the facts on the ground before the ECJ is able to issue final rulings.

What the Commission has done and achieved in the present case should be commended. It should also be “considered the new template to follow” whenever judicial independence of national courts is under threat due to autocratically-minded authorities.

Barnard & Peers: chapter 9, chapter 10

Photo credit: France 24

Judicial Independence and Maltese courts: Is a microstate about to provide EU rule of law with its Van Gend moment?

Justin Borg-Barthet, Senior Lecturer in EU Law at the University of Aberdeen*

In fifteen years of EU membership, Maltese courts have been remarkably reluctant to refer questions of interpretation to the CJEU.  This could be about to change in litigation which could have far-reaching consequences for the direct effect of member states’ rule of law and human rights obligations.  The dispute raises important, novel questions concerning the extent to which EU law of a classical constitutional nature could be democratised in much the same manner as the law of the internal market was democratised through Van Gend.

In the case of Pace Axiaq et al vs Prim Ministru, an NGO has asked the Civil Court to seek a preliminary ruling concerning the compatibility with EU law of Malta’s system of judicial appointments.  The NGO contends that a system which grants the executive absolute power over appointment and promotion breaches the right to a fair trial and the right to an effective remedy (Art 19 TEU and Art 47 Charter of Fundamental Rights).  The applicants also seek to enjoin the government to refrain from making further appointments to the bench until constitutional reforms have been implemented.

In a decree issued on 22 May 2019, the Civil Court rejected the Maltese government’s request to summarily dismiss the case.  The Court found that, while the applicants could not rely on the Maltese Constitution or the ECHR, they did have a juridical interest insofar as they rely on EU law. 

The case, should it be referred to the CJEU, would enable the further development of jurisprudence through which the Luxembourg court has operationalised the rule of law in the EU.  In particular, it could render individuals enforcers of the principles in the Juizes Portugueses judgment (discussed here) in which it was held that “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 that law, meet the requirements of effective judicial protection” (para 37).

Systematic backsliding in the absence of systemic change

The applicants in Pace Axiaq rely in great measure on the ongoing proceedings in Commission v Poland (discussed further here).  Their submissions refer also to the damning indictment of Malta’s rule of law failings in a report by the Council of Europe’s Venice Commission.  The report, which was prompted by the assassination of journalist Daphne Caruana Galizia, noted that the independence of the judiciary is severely compromised by the present system of appointments.

The Maltese government has, in fact, committed to introducing legislation which will make the judiciary self-perpetuating, thereby severing the executive’s control over the judicial branch.  The catch, however, is that appointments to the bench have continued; indeed, six appointments were made quite hurriedly following the filing of Pace Axiaq.  The net effect is that partisan capture could be perpetuated if a secure partisan majority of judges is installed by the executive prior to any legislative innovation.  As former ECHR judge Giovanni Bonello observes, permanent capture is quite likely given that the vast majority of judicial appointees since the 2013 change of government have either occupied a prominent role in the governing party or have close family or business relations with persons who do. 

Equally importantly, the threat to the independence of the judiciary is to be considered in a broader context of institutional capture.  The Maltese constitution relies on trust insofar as the separation of powers is concerned.  The executive has extensive powers of appointment and removal of officials responsible for the enforcement of criminal law, including financial regulation required by EU law. This has always been problematic in conceptual terms, and internal criticism is not a new phenomenon.  Recent events, however, demonstrate that there has been significant movement towards a deliberate culture of impunity in the highest political offices.  Erosion of the independence of the judiciary therefore takes on an altogether more worrisome flavour given many considered the judiciary to be a significant bar to the further (or complete, by some accounts) erosion of the rule of law, and the principle of sincere cooperation.

Malta is not Poland, but…

The Maltese rule of law crisis is distinguishable from its better-known Polish counterpart, however.  Poland has adopted regressive laws following EU membership, and thereby compromised the standard of judicial independence which had been scrutinised prior to accession.  The European Commission has been clear that this type of formal backsliding engages EU law, specifically Article 7 TEU, and requires redress as a matter of Union law.

In Malta, in contrast, the laws which the applicants in Pace Axiaq contend are contrary to EU law have been in place for as long as Malta has been an independent state.  Of course, nowhere in the treaties is the enforcement of fundamental rights and rule of law obligations contingent on regression, but the absence of formal regression means that a clear demarcation between compliance and its absence is lacking.  Indeed, the Maltese government, cognisant of the Commission’s formulaic systemic backsliding criteria, has been eager to emphasise the Commission’s role in the enforcement of rule of law obligations, arguing that there is no private route to enforcement. 

The potential innovation in Pace Axiaq, and the reason why a preliminary ruling is in fact necessary, is that the petitioners rely instead on the direct effect of certain human rights obligations: Article 19(1) TEU, which requires national courts to “provide remedies sufficient to ensure effective legal protection in the fields covered by Union law”, and Article 47 of the Charter of Fundamental Rights, which guarantees the right to an effective remedy and the right to a fair trial.  The matter is then brought within the scope of the Wachauf formula by way of the duty of sincere cooperation in Article 4(3) TEU; it is argued that the entire substance of the effectiveness of EU law may be at stake, and that all future judgments could be called into question should judicial independence be further compromised.

Paradoxically, Pace Axiaq could provide the Maltese courts with an opportunity to make their greatest contribution to the rule of law at a time when their own independence is most under threat.  Much like the establishment of the internal market required the development of direct effect and citizen-led enforcement of the law, supranational judicial oversight would go a long way towards fulfilling EU law’s promise of a system founded on the rule of law and fundamental rights.

*Reblogged from Verfassungsblog

Barnard & Peers: chapter 9

Photo credit: The Judiciary of Malta

Does Poland infringe the principle of effective judicial protection? Recent developments in the CJEU

Femke Gremmelprez, PhD Researcher and Academic Assistant, Department of European, Public and International Law, Research group Ghent European Law Institute

Despite the Court of Justice’s prominent role in the enforcement of EU law via the infringement procedure of Article 258 TFEU and the preliminary ruling procedure of Article 267 TFEU, the Court of Justice has predominantly been left out the enforcement of EU values, and the rule of law in particular. The EU Treaties remain silent with respect to an explicit competence for the Court of Justice to reinforce the rule of law in case deviant behaviour of Member States emerges. In addition, rule of law deficiencies have been prominently dealt with within the political discourse of dialogue in the context of the Rule of Law Framework and the Article 7 TEU procedure. However, the Court of Justice’s Associação Sindical dos Juízes Portugueses judgment of 2018 has been a turning point in this regard. This blogpost will comment on the hearing in the Commission v. Poland case of 8 April 2019 (C-192/18) (hereafter ‘Ordinary Courts case’) and the opinion in the Commission v. Poland case rendered on 11 April 2019 (Case C-619/18) (hereafter ‘Supreme Court case’), two infringement procedures launched by the Commission before the Court of Justice after the Associação Sindical dos Juízes Portugueses judgment.

The initial impulse of the Court of Justice

Although the outcome of the Associação Sindical dos Juízes Portugueses judgment as such cannot be considered to be ground-breaking, the reasoning of the Court of Justice, in contrast, is all the more so. The Court of Justice, after all, established in this judgment that national courts which may be called upon to apply EU law, have to guarantee an effective judicial protection in accordance with the second subparagraph of Art. 19(1) TEU (para. 40 of the judgment). This ‘may’ formulation suggests that this applies to any court within the meaning of EU law. As Pech and Platon stipulate, “most if not all national courts are, at least theoretically, in this situation”, and therefore have to fulfil the requirement of effective judicial protection (see L. Pech and S. Platon, “Rule of Law Backsliding in the EU: the Court of Justice to the rescue? Some thoughts on the ECJ ruling in Associação Sindical dos Juízes Portugueses”, on this blog).

As a consequence of the Associação Sindical dos Juízes Portugueses judgment, judicial independence has become a criterion verifiable by the Court of Justice, and as such confirmed as essential in the enforcement of the rule of law (para. 40 of that judgment; see also last year’s judgment in LM (discussed here), para. 48). The Court of Justice has thereby shown itself committed to upholding the rule of law within the EU by operationalising the rule of law as enshrined in Article 2 TEU, reinforcing this value with a reference to the principle of sincere cooperation as enshrined in Article 4(3) TEU. This is necessary in order to achieve the proper functioning of the judicial cooperation system pursuant the preliminary reference procedure under Article 267 TFEU (Associação Sindical dos Juízes Portugueses, paras. 41-43). Judicial independence not only presupposes that judges are remunerated sufficiently, but in light of the rule of law crisis, more importantly, also the protection against the removal from the office of the members of the national courts (Associação Sindical dos Juízes Portugueses, para. 45).

Poland has made several reforms regarding the functioning and organisation of the Constitutional Tribunal, the Supreme Court and the ordinary judiciary whereby the independence of these bodies has been endangered (for an extensive overview of all the measures Poland has adopted over the last two years, see the Commission’s Reasoned Proposal in accordance with Art. 7(1) of the Treaty on European Union regarding the rule of law in Poland. In particular, the Polish government has adopted a law on the basis of which the general retirement age of the Supreme Court judges and the judges of the ordinary courts is lowered from 70 to 65, entailing that all judges currently in office who attained the age of 65 years, or will attain that age within 3 months from the entry into force of the law, will be retired. Following the reasoning of the Court of Justice in Associação Sindical dos Juízes Portugueses, this measure would – to use the Court of Justice’s formulation – “impair the independence” of relevant courts and their members and as such be held incompatible with Art. 19(1) TEU, because these members of the judiciary are removed from their offices before the end of their initial term.

The revolutionary Associação Sindical dos Juízes Portugueses judgment is the initial impulse of a series of cases before the Court of Justice within the context of the compatibility of national measures concerning the national judicial system with the standards following Article 19 TEU. Both the Commission, in the form of infringement procedures pursuant to Article 258 TFEU, and the national judges, in accordance with the preliminary ruling procedures as foreseen in Art. 267 TFEU, have raised issues about developments in Poland (see for instance the infringement procedures respectively lodged by the Commission against Poland on 15 March 2018 (Case C-192/18, the Ordinary Courts case) and on 2 October 2018 (Case C-619/18, the Supreme Court case), and the preliminary questions respectively referred by Polish judges on 9 August 2018 (Case C-522/18), on 3 September 2018 (Case C-558/18) and on 5 September 2018 (Case C-563/18).

The hearing in the Ordinary Courts case

On the 8th of April 2019, the hearing of the Ordinary Courts case took place before the Grand Chamber of the Court of Justice. This case concerns, in particular, the Commission’s claims that the Polish measures lowering the retirement age applicable to the ordinary court judges, on the one hand, and granting the Minister for Justice the discretionary power to decide whether or not to extend the active service of the judge concerned, on the other hand, are contrary to Article 19 TEU, read in conjunction with Article 47 EU Charter (the right to a fair trial before an independent court). Although the Commission also raised the issue regarding the distinction between the retirement age for men and women working as a judge in its infringement action, the Court of Justice asked the parties to focus solely on the first plea during the hearing.

The Commission started with emphasising the importance of the adherence to the principle of effective judicial protection enshrined in Artilce 19 TEU, which is further clarified by Article 47 EU Charter as the right to be heard by independent and impartial judges, because the principle of effective judicial protection is not only the very essence of the rule of law, but also the very basis of the EU. Indeed, the Court decided already in the Achmea case (discussed here) that the EU judicial system, consisting of the Court of Justice and the national courts as EU courts, aims at ensuring the uniformity, effectiveness and autonomy of EU law (Achmea, para. 37).

Non-adherence to the principle of effective judicial protection would affect these key characteristics of EU law and the EU as such. Therefore, the contested measures violate the principle of judicial independence, and, thus, also the principle of effective judicial protection as foreseen by Article 19 TEU. In particular, as the Commission clarified by answering a related question posed by the Judge Rapporteur, the discretion of the Minister of Justice is problematic in the light of Article 19 TEU since he or she can decide to grant or refuse an extension of the active service of a judge beyond the retirement age without clear criteria, without motivation, without a possible appeal and without a clear time framework of the prolongation period. Referring back to the case law of the European Court of Human Rights with regard to Article 6(1) ECHR, the Commission invokes that this can be qualified as a means to put pressure on the judiciary, which constitutes an infringement of Art. 19 TEU.

Furthermore, the Commission reminded the Court of Justice of its own interim measures order of 17 December 2018 in the Supreme Court case (see also the interim measures order of November) in which it refuted that the Commission based itself on mere hypotheses and it held that the contested provisions could lead to a violation of Article 19(1) TEU (paras. 55-56 of that order). Nevertheless, the Polish representative argued that the contested provisions of the Polish law have been amended in compliance with EU law, as a consequence of which the Commission should withdraw its application of Article 258 TFEU. Moreover, the Polish representative emphasised that the Minister of Justice has no wide scope of discretion, as the Minister considers the workload of the other ordinary courts and the need for human resources in other courts when granting or refusing an extension of the activity of an ordinary court judge.

At the same time, the Polish representative acknowledged, in response to a question raised by the Judge Rapporteur, that the Minister of Justice does not have to motivate his decision and that there is no judicial review against this decision. During the hearing, the President of the Court noted that the lack of motivation makes the situation all the more suspicious. The Judge Rapporteur also appeared puzzled on how the retirement of a certain judge will remedy the workload in other courts. Instead she suggested the transfer from personnel as a possible solution. The Polish representative explicitly rejected this “opinion” of the Judge Rapporteur by stating that the Polish law does not foresee in such a possibility.

More fundamentally, the Polish representative submitted that the Commission’s infringement action is an unjustified interference in the national judicial system of a Member State, which is a purely internal affair. The lowering of the retirement age cannot be considered to be a removal of judges from their office since it would simply be an exception to the constitutional rule regarding the general retirement age, justified by the need of effective allocation of judges among the various ordinary courts in Poland.

Following this argument the President requested the Commission to divulge on whether the competences conferred on the EU by virtue of Article 19(1) TEU can be limited considering the autonomy of the Member States to organise its judicial system. The Commission conceded that it had to respect the attribution of competences and the autonomy of the Member States regarding the functioning and organisation of its judiciary but equally noted that Member States have to guarantee some minimum standards that have to be adhered to, as the Court of Justice has specified in its previous case law, such as the Associação Sindical dos Juízes Portugueses and LM judgments. The Polish representative, nevertheless, objected the use of double standards regarding the principle of judicial independence by the Court of Justice, since the renewal of a judge’s mandate at the Court of Justice for 6 years entails, similar to the extension of a Polish ordinary court judge, a decision of the governments.

Of course, the decision of Member States’ governments with regard to the (re)appointment of the Court of Justice judges can hardly be compared to the discretionary power of the Minister of Justice to grant or refuse an extension of the active service of an ordinary court judge. Admittedly, the appointment procedure for judges at the Court of Justice is not completely transparent (see for instance M. A. Simonelli, “Quod Licet Iovi non Licet Bovi. The Appointment Process to the Court of Justice and the Reform of Judiciary in Poland”, on the European Law Blog). Yet, in accordance with Article 253 TFEU and Article 255 TFEU, criteria, such as the independence beyond doubt and the right qualifications, have to be considered and a(n) (re)appointment is decided by common accord of the governments of the Member States. In addition, a decision will be taken after the consultation of an expert panel consisting of former members of the Court of Justice and the General Court, members of national supreme courts and lawyers of recognised competence.

Advocate General Tanchev’s approach on upholding the rule of law

It is now up to the Advocate General to deliver his opinion in the Ordinary Courts case, expected on the 20th of June 2019, before the Court of Justice will render a decision. However, his opinion in the Supreme Court case was released on the 11th of April 2019 and already sheds light on the outcome of his opinion in the Ordinary Courts case. The Supreme Court case deals with the Polish measures lowering the retirement age of the Supreme court judges from 70 to 65 years of age and granting the President of Poland the power to extend the active service of Supreme court judges. As a result it is very much comparable to the Ordinary Courts case.

As compellingly highlighted by Advocate General, the Supreme Court case will be the first infringement action in which the Court of Justice has to rule on the compatibility of measures adopted by Member States regarding the organisation of the national judicial system with the standards foreseen in Art. 19(1) TEU (Opinion, para. 47). According to the Advocate General, the Court’s decisions in these currently pending cases will strengthen the respect for the rule of law by Member States and will further offer guidance on the standards upon which the rule of law is based. The fact that an Article 7(1) TEU procedure has been invoked against Poland does not change the admissibility of the case. Notably, the Advocate General applied a clear delimitation between both procedures, Article 258 TFEU being a legal procedure and Article 7 TEU a political procedure, as they have a different scheme and purpose (Opinion, para. 50).

Confirming the Associação Sindical dos Juízes Portugueses case: the verification of rule of law compatibility falls within the scope of Article 19(1) TEU

The Advocate General examines the scope of application of Article 19(1) TEU and Article 47 EU Charter separately, as Advocate General Saugmandsgaard Øe also proposed in his opinion in the Associação Sindical dos Juízes Portugueses case. Yet, the Court of Justice reformulated the question in the Associação Sindical dos Juízes Portugueses case by leaving out a reference to Article 47 EU Charter. The Court of Justice merely referred to Article 47 EU Charter in order to explain that the principle of effective judicial protection requires that everyone has a right to an effective remedy before a tribunal which is independent and impartial.

By relying merely on Article 19(1) TEU, the Court of Justice refrained from opening a Pandora’s box on the discussion of the scope of application of the Charter. Although some commentators have argued to revisit the scope of application of the Charter, as set out in its Article 51, an extensive reading of this provision could be regarded as an unjustified intervention in the Member States’ national affairs endangering the sovereignty of national constitutional courts to observe the rule of law and fundamental rights enshrined in the national constitutions (T. von Danwitz, “The Rule of Law in Recent ECJ Jurisprudence” in W. Schroeder (ed.), Strengthening the Rule of Law in Europe, from a common concept to mechanisms of implementation, Hart Publishing, Portland, 2016, (155)165).

Indeed, this ‘national sovereignty’ argument has several times been repeated by the Polish representative during the hearing of the Ordinary Courts case. During the hearing however, the Commission highlighted that Article 47 EU Charter is merely called upon to help interpret the principle of effective judicial protection of Article 19(1) TEU. Moreover, the infringement action focuses on a breach of Article 19(1) TEU as a consequence of the Polish measures lowering the retirement age of the ordinary courts judges and the discretionary power of the Minister of Justice to decide on a possible extension of judicial mandates. The emphasis then is on the material scope of application of Article 19(1) TEU. In this regard, Advocate General Tanchev argues that Member States have the obligation to guarantee the full application of EU law and the judicial protection of individuals under Art. 19(1) TEU, which entails that measures impairing the independence of national courts hinder the EU Courts from carrying out their mandate under Article 19(1) TEU (Opinion in Commission v. Poland (Supreme Court case), para. 59). The Court of Justice thus has the competence to verify whether measures adopted by a Member State are in line with their obligations resulting from Art. 19(1) TEU.

As the Polish Supreme Court – mutatis mutandis the Polish ordinary courts – may rule on questions concerning the application or interpretation of EU law, and the infringement action concerns an alleged breach of the rule of law, concretised by Article 19 TEU, the infringement action brought by the Commission before the Court of Justice in the Supreme Court case – mutatis mutandis the Ordinary Courts case – should be deemed admissible according to Advocate General Tanchev (Opinion in Commission v. Poland (Supreme Court case), para. 63).

Poland infringes the rule of law as concretised by the principle of effective judicial protection

Following this finding of admissibility, Advocate General Tanchev opines that Poland infringes Article 19(1) TEU on two accounts. Firstly by violating the principle of irremovability of judges and by violating the principle of judicial independence by granting the President of Poland the discretionary power to extend the active service upon the retirement age of a judge on the other hand.

Remarkably the Commission did not raise any arguments with regard to the irremovability during the hearing of the Ordinary Courts case, as it focussed on the discretionary power of the Minister. While it considered the lowering of the retirement age of the ordinary courts judges a relevant aspect of the overall discussion, it did not consider it as a breach of Article 19(1) TEU as such. In contrast the Advocate General stressed the principle of irremovability as one of the guarantees essential to judicial independence.

It is, furthermore, noteworthy how the Advocate General in the Supreme Court case is guiding the Court of Justice in defining the principle of irremovability by referring to soft law created by other international bodies, such as the Council of Europe, the International Bar Association, and the United Nations. In addition, the Advocate General highlights the value of such non-binding norms, as they imply normative consensus of rules and principles shared by the Member States or other jurisdictions which provide a useful reference for the Court of Justice (Opinion in Commission v. Poland (Supreme Court case), footnotes 51-52).

Namely, this principle of irremovability entails that a judge should have “a guaranteed tenure until a mandatory retirement age or the expiry of their term of office, and can be subject to suspension or removal from office in individual cases only for the reasons of incapacity or behaviour rendering them unfit for office. Early retirement should be possible only at the request of the judge concerned or on medical grounds, and any changes to the obligatory retirement age must not have retroactive effect” (Opinion in Commission v. Poland (Supreme Court case), para. 72). Moreover, in Associação Sindical dos Juízes Portugueses the Court of Justice assessed the circumstances of the case, such as the impact on the composition of the court, the nature of the legislation adopted in respect of the members of the court concerned, and the duration of the application of the legislation, to verify whether the lowering of the remuneration level was violating the principle of judicial independence. Advocate General Tanchev uses these factors to verify whether the lowering of the retirement age is breaching the principle of irremovability of judges (Associação Sindical dos Juízes Portugueses, paras. 46-50; Opinion in Commission v. Poland (Supreme Court case), para. 76).

Furthermore, the Advocate General adds that a sudden and unforeseen removal of a large number of judges creates difficulties in terms of public confidence. This argument could also be used to refute the closing remark of the Polish representatives during the hearing of the Ordinary Courts case, namely that the infringement procedure brought by the Commission is counterproductive and confuses the Polish judicial system. By lowering the retirement age and obliging a large number of judges to retire before the end of the initial termination of their active service, the Polish government precisely creates public confusion and uncertainty.

In respect to the discretionary power of the Polish President to extend the term of the office upon the retirement age of the Supreme court judge, Advocate General Tanchev holds that also this Polish measure is contrary to the principle of judicial independence enshrined in Article 19(1) TEU. In particular, the external aspect of judicial independence is violated, since the measure exposes the Supreme court judges to external intervention and pressure from the Polish President considering the link between the lowering of the retirement age and the requirement to request an extension of the retirement age to the President (Opinion in Commission v. Poland (Supreme Court case), para. 89). Applying these elements mutatis mutandis to the measure granting the Minister of Justice the discretionary power to grant or refuse an extension of the retirement age of the ordinary court judges, it seems obvious that the Advocate General would come to the same conclusion in his opinion on the Ordinary Courts case. The lack of clear criteria for granting an extension and the absence of judicial review against a refusal of the extension without a persuasive explanation of the Polish representative would a fortiori lead to the existence of external intervention and pressure from the Minister of Justice, contrary to Article 19(1) TEU.

Will the assist of the Court of Justice lead to the winning goal in the rule of law crisis?

Consequently, the opinion of Advocate General Tanchev in the Ordinary Courts case will probably not come as a surprise and will most likely be comparable, if not similar, to his opinion in the Supreme Court case. Considering the outcome of the Associação Sindical dos Juízes Portugueses case, it can be expected that the Court of Justice will act upon its judgment and ultimately take a firm stance in the rule of law crisis. As the political tools to enforce the rule of law are unable to cope with the rule of law deficiencies in certain Member States, the ‘legal route’ should be further deployed by the Court of Justice in light of the pending infringement and preliminary ruling procedures. Although much more has to be done by Poland in order to restore the independence of the judiciary in compliance with Article 19(1) TEU, the Court of Justice’s intervention by means of the interim measures in the Supreme Court case led to the reinstatement of the Supreme Court judges who were forced into early retirement.

Barnard & Peers: chapter 9, chapter 10

Photo credit: France24