Dimitry Kochenov, CEU Democracy Institute
Photo credit: Charles J Sharp, via Wikimedia commons
Past summer was marked by further
deterioration of the Rule of Law standards in the EU, especially weakening
judicial independence. In T.B. v. C.B. the Court of
Justice of the European Union (CJEU) ruled that unlawfully appointed judges on
lawfully established courts, although presumably unable to adjudicate, can
nevertheless be great administrators. Since they are not sitting as judges when
deciding on internal adminsitrative matters within their courts (86), and since
the establishment of the court, which the unlawfully appointed individuals
infiltrated is grounded in law, Article 19 TEU and the EU Charter do not prevent them from terrorising
lawfully appointed judges on the same court, since, in the words of the CJEU,
‘such measures do not constitute a means of exercising control over the content
of judicial decisions’ (88). To fall short of EU law standards it is thus not
sufficient for a fake person posing as a judge ‘appointed […] under the
conditions which are incompatible with the requirements arising from the second
sub-paragraph of Article 19(1) TEU’ (100) to abuse lawfully appointed members
of the court she has infiltrated: she also has to order those abused to reach
particular substantive outcomes, when they are judging, since we cannot doubt
the independence of the lawfully appointed judges (89), who are being abused by
the impostors harnessing the administrative powers on the court they have
usurped.
The case is a rare and interesting example
of deference in a field marred by untamed judicial activism and hands a clean
victory to those willing to abuse the very idea of judicial independence in
direct breach of national and ECHR standards. The bottom-line is humiliatingly
absurd. The CJEU states explicitly that
whether someone is actually a lawfully appointed judge or not in the sense of
Article 19 TEU is of no relevance in the light of EU law in the context of
administrative matters pertaining to the management of a Member State court,
where Article 19 TEU and Article 47 of the Charter are applicable. The idea of
internal judicial independence in the sence of shielding judges from direct
interference with the organization of their activities by known unlawful
appointees only pretending to be judges, has thus been declared as not a matter of judicial independence or
concern in the light of the application of the principle of Rule of Law as
expressed in Article 2 TEU. Moreover, the fact that an unlawfully appointed
individuals interfere with the work of a real judges by doubling such judges’ workloads (33) and assigning the real judges
to sit on the panels dealing with matters outwith of their expertise and with
no consultation or consent of the judges concerned (28), as well as with no
means to appeal such decisions, is of no relevance, as per the CJEU (100), for
the preservation of the EU value of the Rule of Law and, in particular,
judicial independence, in accordance with Articles 2 and 19 TEU.
Although this case was somewhat lost in the
harvest of other summer suprises, in particular Commission v. Malta, which has eliminated
liberal and empowering EU citizenship as we thought we knew it, as I have
argued with Guillermo Íñiguez in the pages of the ELRev., T.B. v. C.B. is of potentially immense
importance, adding to the significant track-record of deep ambiguity, and
half-heartedness, marking CJEU’s engagement with this area. This ambuguity goes
back to the Sharpston cases, where the Court has
denied itself structural independence from the Herren der Verträge in a contra-legem move I analysed in the ELJ
with Graham Butler and the Getin Noble Bank case law, analysed in JCMS in cooperation with Petra
Bárd, as well as by Barbara Grabowska-Moroz
where the Court established that a fake judge named as such in a final instance
decision of the Polish Supreme Court (as well as ECtHR) sitting on a lawfully
established court as a panel of one does
not diminish the standing of that court in the context of the operation of
preliminary references under Article 267 TFEU. In other words, the Court has a
long-standing track-record of aiding the actors sowing abusive
constitutionalism and ‘ruling
by cheating’ in András Sajó’s word. The ‘salami’ principle, introduced by
the Court following an ill-conceived opinion of AG Bobek as he then was, now
allows even 100% unlawfully composed courts, just as in Getin Noble Bank, to benefit from a newly-established presumption
of kosher-illegality, invented by the Grand Chamber in contradiction to the
long-established principle that it is up to the Court itself to decide who
among the national judicial actors is to be regarded as a ‘court or tribunal’
able to refer. Broberg and Fenger have exhaustively analyzed in their Magnum
Opus, which now needs significant watering down, following recent Court’s
departure from long established law to the detriment of the promise of Articles
2 and 19 TEU.
What emerges is not only a double duality,
as it were, which includes the solidification of double standards in terms of a
principled departure from the well-established requirements of Article 6 ECHR,
as the Court has done in relation to own composition too, in the Sharpston cases – Opinion 2/13
on steroids – but also pretending that due process guarantees differ depending
on the Treaty provision in action in a particular case. To be a ‘court’ under
Article 267 TFEU is thus much easier than to remain such in the face of all the
harmful government mingling, when Article 19 TEU enters the picture.
Both dualities are as artificial as they
are principally wrong. This is because to pretend that Articles 19 and 267
refer to some different Courts is an
obviously dishonest and impermissible misinterpretation of the Treaties in
violation of Article 6 ECHR standards. This is because, as I explained in more
detail in the pages of the Cambridge Yearbook of European Legal Studies,
allowing an Article 19 TEU non-judge to be considered a lawful court in the
sense of Article 267 TFEU lands a victory to all those supporting attacks against
judicial independence: a kangaroo court, is then – under cover of a presumption
not grounded in the Treaties and newly-invented by the CJEU for this very
purpose – enters a ‘judicial dialogue’ (sic!) with the CJEU. The absurdity here
is that, plainly, dialoguing with a non-judge cannot be qualified as ‘judicial
dialogue’ and is only lawful in the eyes of the CJEU since the latter is, to
the astonishment of many, pretends not to be bound by Article 6 ECHR, thanks to
the low point of its own doing: Opinion
2/13. Whatever the non-judge appointed in violation of Article 6 ECHR does
on the bench, where that person is not supposed to be, as part of dialoguing
with CJEU is thus ok, among all the Courts of the European continent, only and
solely for the CJEU – not for the
lawfully established and appointed national courts and not for ECHR, for whom such double standard would be unthinkable.
The result is amusing to say the list: the
ECJ makes a strict distinction between an unlawfully appointed judge (even if
sitting alone), and an unlawfully established court – all this almost on the
assumption that the two are somehow not connected to each other. A variety of
interesting combinations is possible here, all of them in violation of the ECHR
case-law, which is as clear as day, as Laurent Pech also explained:
a court, whose composition is tainted by an unlawful appointment is not a court of law. We have seen the results
that the CJEU’s inability to align itself with such most basic ECHR standards
produces: a court with an unlawfully appointed member is ok (think of a fake
‘AG’ tainting CJEU’s composition following the Sharpston cases); a court sitting as a panel of one, with the one
judge being unlawfully appointed is also fine for the purposes of Article 267
TFEU (Getin Noble Bank) but a court
chamber, which is as a whole created
in breach of the law and staffed 100% by unlawful appointees, is not acceptable
under Article 19 TEU and does not enjoy the capacity of issuing decisions
producing legal effects (‘R’S.A. v. AW ‘T’ sp. Z o.o.). The bottom-line
is that hijacking existing courts by staffing them with fake judges is
acceptable to the CJEU, while forming new courts and chambers in breach of the
law and staffing them with similarly fake judges is not ok. It goes without
saying that the outcome is essentially the same and comes down to a square
violation of Article 6 ECHR either way.
T.B.
v. C.B. pushes the absurdity of this shameful
approach to the extremes: when the court itself is lawfully established, but
fake judges have hijacked all the key administrative positions and use this to
abuse the lawfully appointed members by interfering with their workloads is not
a violation of EU law, it is perfectly fine to let the impostors harass the
actual judges. CJEU thus passively assists the attacks against lawfully
appointed judges, constantly extending the baseless Getin Noble Bank presumption, which now also covers the context
where a known fake judge, posing as a court administrator purposefully doubles
workloads of lawfully appointed judges. In fact, the facts described are deemed
by the CJEU ‘irrelevant in this regard’ (90) and should not lead us to doubting
the independence of the court in question (89). The Court has thus clarified
that helping fake individuals posing as judges to terrorize lawfully appointed
members of lawfully established Member States’ courts is now one of the
functions of Article 19 TEU: this is EU law.
The Commission’s position here is most
surprising. The institution argued that the case was not even admissible (59)
clearly mindlessly and irresponsibly playing on the abusers team. In the end,
this is just what the CJEU ended up doing, by pretending that the harassment of
lawfully appointed judges by impostors having no right to sit on the courts in
question, who came to occupy administrative positions on lawfully established
courts, is of no relevance to the judicial independence standards of Article 19
TEU, 47 CFR and Article 2 TEU. Agreeing with the Commission’s proposal could at
least help the Court to save face. It chose the opposite: it is now the law
that known impostors appointed as ‘judges’ in breach of the standards of
Article 19(1) TEU are great court administrators and this has no implications
for judicial independence and the Rule of Law in the EU.
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