Holy Orders or Higher Law? Praying for a Karlsruhe intervention

 

Jonas Siebold

Photo credit: ReinhardHauke, via Wikimedia commons

A lot is at stake for the Protestant Church in Germany. In the pending “Egenberger” case (2 BvR 934/19) before the German Federal Constitutional Court (FCC) in Karlsruhe, nothing less than the church’s right to self-determination itself is at issue. “Egenberger? Karlsruhe?” Wait a minute. Attentive European Union lawyers will certainly be familiar with this case. But first things first.

I. The Case

In 2012, Vera Egenberger applied for a position at a Protestant organisation (the Evangelisches Hilfswerk für Diakonie und Entwicklung). The job description required a church membership, which Egenberger did not have. Ultimately, she was not invited for an interview, while the candidate who got the post was a Protestant Christian. Ironically enough, the position was for bout producing a report on the elimination of discrimination.

Assuming that her application had been rejected because she did not belong to any denomination, Egenberger claimed compensation under Section 15 (2) of the German General Act on Equal Treatment (Allgemeines Gleichbehandlungsgesetz, AGG). Nevertheless, Section 9 (1) of that Act allows for discrimination on religious grounds, if a religious requirement constitutes a justified occupational requirement, having regard to the self-perception of the religious society concerned, in view of its right of self-determination or because of the type of activity.

II. The Judgment

The German Federal Labour Court (Bundesarbeitsgericht), as court of last instance, referred several questions to the Court of Justice of the European Union (CJEU) as a preliminary reference. Questionable was the interpretation of Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, which includes a requirement of equal treatment on grounds of religion (subject to exceptions).

In its judgment (Case C-414/16), the CJEU responded that religious communities invoking the necessity of religious affiliation for filling positions only align with Article 4 (2) of Directive 2000/78/EC (which sets out a specific ‘genuine occupational requirements’ ground of justification as regards religious discrimination) when there is an “objectively verifiable existence of a direct link between the occupational requirement imposed by the employer and the activity concerned”. Whether this is the case is subject to effective review by national courts. The Federal Labour Court then carried out the interpretation required by EU law and concluded that religious affiliation was not necessary for the position to be filled.

III. The Complaint

With a constitutional complaint to Karlsruhe, the Protestant organisation now aims to ensure that the question of the necessity of religious affiliation for a church position may only be answered based on the church’s self-perception, without control by national courts. As the Federal Labour Court followed the CJEU’s preliminary ruling, its judgment is insofar determined by EU law. Although the constitutional complaint is directed against the Federal Labour Court’s final judgment, the complainant indirectly aims for more – a review of the CJEU’s judgment.

Is that even possible? In principle not, according to the primacy of EU law, established in the CJEU’s landmark decision Costa/E.N.E.L. from 1964. Six years later the CJEU explicitly clarified in Internationale Handelsgesellschaft that this even applies for national constitutional law. Furthermore, the CJEU is exclusively responsible for the interpretation and application of EU law, according to Article 19 TEU.

So why is the Protestant organisation now coming up with the apparently far-fetched idea of taking legal action before the FCC? Admittedly, one or two European Union lawyers and CJEU judges would certainly agree with this approach. However, Karlsruhe is less monotheistic than its Luxembourg colleagues when it comes to the principle of primacy of EU law. While it accepts the primacy of EU law, it does not accept it in the absolute terms set out by the CJEU.

IV. The National Court’s Control

Under admittedly strict requirements, Karlsruhe reserved for itself three reservations of control over the primacy of EU law. In exceptional cases it reviews whether the European Union level of fundamental rights protection generally shrinks to a level below that which essentially corresponds to the German (Solange II review). Furthermore, if EU institutions manifestly overstep their competences (ultra vires review) or pursuant to article 23 (1) 3 in conjunction with article 79 (3) of the Basic Law, the inviolable core of the national constitutional identity is affected (identity review).

Even if perhaps the dogmatic amount of reasoning seems unique, numerous Member States’ courts share the perspective of a merely relative primacy of EU law. Such an understanding is a test for the Union’s cohesion but bearable due to the utmost restraint in reviewing. For Germany, this is demanded and ensured by the Basic Law’s openness towards European Union Law.

V. The Argumentation

But let’s get back on track. Which review could be considered for our complainant? The level of European Union Fundamental Rights protection is arguably stronger than ever before, so realistically only the ultra vires or identity review seem possible.

The defendants claimed that the CJEU fails to respect the status of religious communities as guaranteed in Article 17 TFEU. This is arguably not correct, as primary law and the directive require a balance to be struck between the self-determination of religious communities, which is anchored in national law but also protected by EU law and protection against discrimination. But this is a question of the judgment’s compliance with EU law and not exceeding competences.

Then, is the church’s right to self-determination, as enshrined in article 140 of the Basic Law in conjunction with article 137 (2) of the German Constitution of 11 August 1919 (Weimar Constitution), part of the inviolable core of the national constitutional identity? In principle, this can be considered. But not in general for every individual case, particularly for less strictly ecclesiastical activities like in Egenberger. This would hardly align with Karlsruhe’s narrow understanding of the constitutional identity, including only the core of human dignity in fundamental rights and fundamental principles like democracy or the rule of law. Finally, it would unduly jeopardise the fundamental rights of job applicants and employees.

VI. Conclusion

Therefore, the odds for a Karlsruhe intervention seem small and due to the argumentation presented unconvincing. It would be surprising if, after the fiercely debated PSPP-judgment from May 2020, the FCC revolts against the CJEU again, in this case of all cases. But who knows, maybe the Protestants’ prayers will be heard in Karlsruhe.

A decision is scheduled for 2025.

“Good IED !” - The CJEU Grand Chamber “Ilva” judgment : a Kirchberg view of conciliating environmental law and human rights

 

 

Jacques Bellezit, University of Strasbourg (France)

 

Photo credit: mafe de baggis, via Wikimedia Commons

 

If one wants to trace back the history of European construction, it would necessarily have to mention the European Coal and Steel Community (ECSC). Inspired by the Schumann Declaration of May 9th 1950, it was the first attempt to put in a common market, strategic materials (coal and steel). This was done in order not only to enhance European post-war reconstruction but also to impede re-weaponization policies on both side of the Rhine, in the first years of the Cold War.

If the ECSC now belongs to history, and the use of coal is (theoretically) aimed to follow the same path under environmental treaties (such as the Paris Agreement), steel production can always be an issue in EU aw, especially under Directive 2010/75/EU of the European Parliament and of the Council of 24 November 2010 on industrial emissions (integrated pollution prevention and control  (“The IED”). 

This was the case with the Italian Ilva SpA factory, which has led to the 25/06/2024 CJEU Grand Chamber judgment in case C‑626/22, C.Z. and Others v Ilva SpA in Amministrazione Straordinaria. 

 

I) Facts and background of the case

 

The Ilva SpA steel producing plant (ISSPP) is located in the city of Tarantino (Italy) and is one of the major steel factories of the region : AG Kokott recalls in her Opinion (point 49) that the ISSP “ is the largest industrial steelworks complex in Europe, covering an area of roughly 1 500 ha and employing around 11 000 workers” in 2019. She also reminds the reader that “the Italian State still holds almost 40% of the shares” in Ilva  and “exerts particular influence” on it (point 64 of the Opinion).

Neighbours and residents of Tarantino and nearby cities seized the Milano district court for violation of their right to health, their right to peace and tranquillity in the conduct of their lives and their right to a clean climate, due to the activities of the ISSPP. 

If the ISSPP was unknown to the Kirchberg’s judges in the CJEU before the present case, the European Court of Human Rights, on its side, was very familiar with this facility. Indeed, the Strasbourg Court has condemned Italy for violations of articles 8 (right to private life) and 13 of the European Convention of Human Rights (right to effective remedies) due to Italian management of the ISSPP:

- on the part of 161 neighbours of the facility (ECHR 01/24/2019 Cordella and others v Italy)
- on the part of 39 of its current or former employees (ECHR 5/5/2022 Ardimento and others v Italy)

- on the part of 3 former employees (ECHR 5/5/2022 Briganti and others v Italy) 

All of these applicants have suffered from occupational or environment-caused conditions (such as cancers) due to exposure to toxic rejects of SO² (Sulphur dioxide) and  PM10 particulate matter emitted by the ISSPP. These rejects were consistently assessed during twenty years, by several scientific reports, from both national and international specialists between 1997 and 2017 (§13 to 31 of the Cordella judgment).

 

IED provisions and the case of the Ilva factory

Under Italian law, the IED provisions were transposed through the Legislative Decree No 152 on Environmental rules of 3 April 2006.

In 2012, the Taranto District Court ordered a provisional seizure “of the equipment of the ‘hot zone’ of the Ilva plant and all Ilva’s materials” stopping the production (Point 27 of the Ilva judgment). To counter this Order, the Italian authorities adopted several regulations, from 2012 to 2016, creating a tailor-made, sui generis legal regime aiming to maintain the ISSPP’s activities (points 27 to 35 of the Ilva judgment): 

- the ISSP was classified as “‘plant or facility of strategic national importance’”, so the “Minister for the Environment and the Protection of the Land and Sea may, when the Integrated Environmental Permit is reconsidered, authorise the continuation of the activity in question for 36 months” under the previous permit;

- the facilities were under the control of “provisional administrators designated by the government”;

- several deadlines for environmental rehabilitation plans of the facilities were rescheduled;

- in 2016 and in the frame of the ISSPP’s cession of shares to ArcelorMittal, the Environmental Impact assessment (EIA) regime was replaced by an ad hoc “Decree of the President of the Council of Ministers, which was to be regarded as constituting an Integrated Environmental Permit”.

II) Procedure and preliminary ruling of the CJEU

 

In the current CJEU case, residents and neighbours of the ISSPP seized the Milano District Court of a class-action request for “an injunction in respect of the operation of the installation or at least parts thereof to protect their rights to health, to peace and tranquillity in the conduct of their lives and to the climate. In their view, those rights have been very seriously affected for decades by the operation of the steelworks” (point 46 of the “Ilva” judgment). 

The CJEU, after having dealt with an admissibility issue that we will exclude from the present analysis, was sent a request for a preliminary ruling request with 2 questions: 

- Does Directive 2010/75, read in the light of Article 191 TFEU, must be interpreted as meaning that the Member States are required to impose a prior assessment of the effects of the activity of the installation concerned on the environment and on human health as an integral part of the procedures for granting or reconsidering a permit to operate such an installation under the directive ? 

- Must Directive 2010/75 be interpreted as meaning that, for the purposes of granting or reconsidering a permit to operate an installation under that directive, the competent authority must take into account, in addition to the polluting substances that are foreseeable having regard to the nature and type of industrial activity concerned, all those polluting substances which are the subject of emissions scientifically recognized as harmful which result from the activity of the installation concerned, including those generated by that activity which were not assessed during the initial authorisation procedure for that installation?

  

The CJEU preliminary rulings

The CJEU Grand Chamber rules that  the IED Directive « read in the light of Article 191 TFEU and Articles 35 and 37 of the Charter of Fundamental Rights of the European Union »   must be interpreted as meaning that:

- Member States are required to provide that the prior assessment of the effects of the activity of the installation concerned on the environment and on human health must be an integral part of the procedures for granting or reconsidering a permit to operate such an installation under that directive;

-  for the purposes of granting or reconsidering a permit to operate an installation under that directive, the competent authority must take into account, in addition to the polluting substances that are foreseeable having regard to the nature and type of industrial activity concerned, all those polluting substances which are the subject of emissions scientifically recognised as harmful which are liable to be emitted from the installation concerned, including those generated by that activity which were not assessed during the initial authorisation procedure for that installation;

- it precludes national legislation under which the period granted to the operator of an installation to comply with the measures for the protection of the environment and human health provided for in the permit to operate that installation has been repeatedly extended, whereas serious and significant risks to the integrity of the environment and human health have been identified. Where the activity of the installation concerned presents such risks, [...] in any event, that the operation of that installation be suspended.

 

III) Analysis

If the Ilva Grand Chamber judgment condemns specific regimes such as the one tailor-made for the case’s steelworks activities, it nevertheless extends in a pretorian way, the field of the IED.

The Luxembourg Court does not only states that environmental impact assessments are an “integral part of the procedures” of granting or re-considering permits for IED’s facilities, but also extends the frames of the these assessments by including “polluting substances which are the subject of emissions scientifically recognized as harmful which are liable to be emitted from the installation concerned” and not only foreseeable ones. 

This extension is motivated by the protection of health and environmental, in accordance with Articles 35 and 37 of the Charter of Fundamental Rights of the European Union; but it might put a burden on national EIA authorities.

If the hazards of polluting substances can be determined especially in regard to relevant ban-conventions or EU Law (ex the 2001 Stockholm Convention on Persistent Organic Pollutants, enforced in EU law by Regulation (EU) 2019/1021 of the European Parliament and of the Council of 20 June 2019 on persistent organic pollutants (recast)), the presence of such polluting substances on a designated industrial site as well the impact of this presence on human health, might be a scientific and legal challenge.

So as EIA authorities are now required to examine substances “which are liable to be emitted”, it would expand the weight and the complexity of EIA documents. 

Meanwhile, treaties such as the Aarhus Convention on access to information, public participation in decision‐making and access to justice in environmental matters require “environmental information [to be] available to the public [...] transparent and […] effectively accessible” (Article 5§2 of the Aarhus Convention). Conciliating the right to environmental information with the complexity of the matter is a conundrum, as even lawyers and judges are “unable to, on their own,  to assess and weigh complex scientific evidence” in environmental matters (cf. Point 4 of the Joint dissenting opinion of Judges AL-KHASAWNEH and SIMMA  under the 2010 ICJ “Pulp Mills on the River Uruguay” judgment).

The Italian authorities, by organizing an ad hoc legal regime for the Ilva factories, have also contributed to create this legal, political and scientific muddle, even if it was in order to keep jobs in an economically stricken area.

How would it be possible for the common man, the one the Clapham omnibus, to deal with such information in a “transparent” and “effectively accessible” manner? Especially if this man suffers from pollution-induced conditions.

The “Ilva” case is, according to a French ecologist newspaper, “an ecological monster [or] […] an ecological bomb”, dealt twice by the Strasbourg Court and now by the CJEU Grand Chamber. 

Would it be sufficient to avoid further pollution? Probably not.

Would it be enough to relieve the victims of such pollution? Certainly not. 

However, with the “Ilva” judgment, the CJEU gives an example of the way IED’s provisions have to be conciliated with the EU Charter of Fundamental Rights.

Such conciliation between Human Rights law and Environmental law was previously established by the ECHR’s Grand Chamber “Klima v Switzerland” judgment (in the field of climate change) and the CJEU cannot not ignore such conciliation anymore due to the authority it grants to its Strasbourg counterpart.

 

The Ilva judgment, a step closer in Strasbourg-Luxembourg dialogue?

 

Indeed, since 1970 and the CJEU “Nold” judgment, the Court recognizes that “international treaties for the protection of human rights on which the Member States have collaborated or of which they are signatories, can supply guidelines”, and chiefly the European Convention of Human Rights.

If the “principle of equivalence” in protection of human rights between the ECHR and EU legal systems was recognized by Strasbourg judges (in cases “Bosphorus Airways v Ireland” and “Avotins v Latvia”), the CJEU was more reluctant to follow its Strasbourg counterpart, wanting to preserve its authority over EU Law interpretation (cf. the CJEU Full Court Opinion 2/13 of 2014). 

However, in the present case, the Luxembourg Court takes into consideration the previous cases by the Strasbourg Court rendered on the “Ilva” issue. 

Might this consideration be a paving stone to the road leading to a EU membership of the European Convention of Human rights? Maybe. 

But one has to never forget that is road is not a “yellow brick road” any more, as some of its cobbles are now tainted by the “Ilva” steelworks’ polluting substances, and dampened by the tears of the victims.

A Further Step to Gender-Sensitive EU Asylum Law: The Case of ‘Westernised Women’

 

Türkan Ertuna Lagrand, Assistant Professor, and Salvo Nicolosi, Senior Assistant Professor, University of Utrecht

Photo credit: Mystslav Chernov, via Wikimedia Commons

 

Gender-based asylum claims have been gaining momentum in EU law. On 11 June 2024, the Court of Justice of the European Union (CJEU) published its most recent judgment in the case of K, L v Staatssecretaris van Justitie en Veiligheid (C-646/21) concerning the interpretation of ‘membership of a particular social group’ under Article 10 (1) (d) of the Qualification Directive with reference to ‘westernised women’ who, because of the identity and lifestyle they have acquired in the host country, namely the Netherlands, fear persecution if they were returned to the home country, namely Iraq. The judgment follows the ruling in WS (C‑621/21) in which the Court last 16 January 2024 recognised that women in a country as a whole may be regarded as belonging to ‘a particular social group’, leading, as analysed here, to the recognition of refugee status.

Following this thread, this post aims to shed some more light on the Court of Justice’s contribution to a more gender-sensitive reading of international refugee law. To this aim, drawing from the judgment in K, L, attention will be paid to the axiological dimension of the concept of ‘equality between women and men’ and its use by the Court for the purposes of constructing the ‘particular social group’ under EU asylum law. A short synopsis of the case will be first provided.

The Factual Background

The judgment is the landing point of a case originating from a reference made on 25 October 2021 by the Tribunal of the Hague. The main proceedings concerned two minor sisters (10 and 12 years old) who left Iraq in 2015 together with their parents who unsuccessfully applied for international protection in the Netherlands. In 2019, the applicants lodged subsequent claims for international protection, which were rejected as manifestly unfounded. On 28 December 2020, they appealed to the referring court in The Hague. At the time of the hearing before the referring court, the applicants had been continuously resident in the Netherlands for over five years and were both still minors. They argued that, due to their long stay in the Netherlands, they have adopted Western norms, values and actual conduct and, because of this, they fear persecution if they were returned to Iraq.

The referring court, therefore, asked the CJEU whether third country nationals who have lived in a Member State for a significant part of their life during which they developed their identity by adopting Western norms, values and actual conduct, may be considered members of a ‘particular social group’ within the meaning of Article 10 (1) (d) of the Qualification Directive, because (applying the definition of ‘particular social group’ in the Directive) they have ‘a common background that cannot be changed’ or characteristics that are ‘so fundamental to identity that a person should not be forced to renounce’ them. (The UN Refugee Convention, as applied in EU law by the EU Directive, defines a ‘refugee’ as someone outside their country of nationality or (if stateless) habitual residence, who is unable or unwilling to avail themself of the protection of that country owing to a well-founded fear of persecution on various grounds, including ‘particular social group’; but unlike the EU Directive, the Convention does not elaborate further on the meaning of the term).

In his Opinion, Advocate General Collins, first of all, rejected the application of the terms “Eastern” and “Western” in the context of moral codes and values as projecting a false dichotomy that constitutes part of a divisive dialogue. He underlined that ‘“the East” and “the West” are vast regions with a multitude of religious traditions, moral codes and values’ making terms such as “a Western lifestyle” or “Westernised women” ‘largely meaningless’. More importantly, by setting the centrality of ‘gender equality’ within EU law, the Advocate General provided a valuable background against which the Court could frame its ratio decidendi.

 

The axiological dimension of gender equality in the Court’s Judgment

In its reasoning, the CJEU reiterates the approach followed in the previous case of WS in which the Court declared the Istanbul Convention and the UN Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) as being relevant treaties under Article 78 (1) TFEU according to which EU Asylum law, including the Qualification Directive, is to be interpreted. In pursuing such an approach, the Court provides a broad and rights-based interpretation of gender equality, explaining that, in light of Articles 1, 3 and 4 (2) of the Istanbul Convention as well as Articles 3, 5, 7, 10 and 16 of CEDAW, equality between women and men includes the right of every woman to be protected from all forms of gender-based violence, the right not to be forced to marry, to choose whether to adhere to a religion, to hold one’s own political views and to make one’s own life choices, especially in terms of education, career or activities in the public sphere.

While relying on these international law sources, the Court contributes to upholding the axiological dimension of gender equality, as ensuing from Articles 2 and 3 (3) TEU enshrining gender equality as one of the EU’s core values and fundamental objectives. In this connection, concurring with Advocate General Collins, it is worth mentioning that EU primary law contains a number of provisions that establish an obligation to mainstream equality and non-discrimination. This is the case of Article 8 or Article 10 TFEU, which, as clarified by the Court itself in VT (C-304/21, para. 34) set out obligations on the Union, not on the Member States. It is equally noteworthy that the Court clarified that the provisions of the Qualification Directive must be interpreted in a manner that is consistent with the EU Charter’s rights, including Article 21 (1) of the Charter, which prohibits any discrimination based on, inter alia, sex.

This axiological dimension of gender equality is especially significant because it constitutes an attempt to frame equality as a ‘central concern.’ In other words, by insisting on the value of gender equality, the Court was not only able to expand the interpretation of refugee law concepts, as will be explained below, but sent a clear message about gender mainstreaming, which has been very challenging to implement, as noted by Timmer.

 

Equality and the construction of the ‘particular social group’

Even if partly calibrating the emphasis permeating the Advocate General’s Opinion, the Court used this axiological framework to acknowledge that women, who have spent most of their lives in the Netherlands, will have been influenced by the value of gender equality. This value constitutes an indelible part of their identity and reflects core values, principles, and fundamental rights deeply rooted in the EU legal tradition.

Accordingly, the Court finds that the fact that a female third country national identifies herself with the fundamental value of equality between women and men can be regarded as ‘a characteristic or belief which is so fundamental to the identity or moral integrity of the concerned person that she should not be asked to renounce it’. According to the Court, the crystallisation of such a fundamental characteristic stems from the exposure to the fundamental value of equality between women and men during a phase of life in which a young woman forms her identity. What is striking is that such a fundamental characteristic is established, as in casu, outside of the country of origin and whilst the applicant was living in the host State, waiting for the asylum application to be processed. Essentially, the Court decides that the applicants are to be seen de facto as sur place refugees, because of their actions outside the country of origin, as clarified by the United Nations High Commissioner on Refugees (UNHCR).

The Court also takes a chance to clarify the relationship with other possible grounds for persecution, such as religion or political opinion. The fact these grounds could also connect with the personal affinity with the value of equality between women and men did not prevent the Court from affirming that these women could be regarded as belonging to a particular social group. As is known, this ground requires two cumulative conditions, namely the identification of a common essential characteristic and that those sharing such a characteristic are seen as “different” from the surrounding society (or part of it). According to the Court, the latter condition is satisfied by the specific circumstances in the country of origin. In this regard, by echoing the argument made in WS, the Court reiterates that ‘it is for the Member State concerned to determine which surrounding society is relevant when assessing whether such a social group exists.’ Nonetheless, even if much more engagement by the Court with issues related to cultural differences could be necessary, the Court seems to indicate that the value of equality between women and men constitutes the element through which the Member States have to assess the perception of the group in the surrounding society.

 

Waiting for the next episode…

This judgment represents another episode of a series of developments towards a more gender-sensitive EU asylum law. In WS the Court has already established that women in a country as a whole may be regarded as belonging to ‘a particular social group’,  thereby ending once and for all the discussion whether the size of the group may prevent such qualification.

In K, L, by recognising that refugee status may be granted to women who identify themselves in the value of equality between women and men, the Court makes a twofold contribution. First, the Court indirectly contributes to gender mainstreaming in EU law by upholding gender equality as a core value of the EU. Following up on the previous ruling in WS, the CJEU uses the Istanbul Convention and CEDAW as ‘relevant treaties’ in the meaning of Article 78 (1) TFEU, to interpret EU Asylum Law. This is an important step in preventing legal fragmentation in the protection of women against discrimination and violence and in creating a coherent framework across legal fields at the international and European levels.

Second, the Court’s ruling in K, L opens the way to the next episode in promoting a more gender-sensitive EU asylum law. A case in point concerns the pending joined cases in AH (C‑608/22) and FN (C‑609/22). The Court will decide whether the requirement for individual assessment may be relinquished for women fleeing the Taliban regime in Afghanistan, as proposed by Advocate General de la Tour in his Opinion, analysed here. Such a case is directly related to gender equality and the systematic discrimination against women. Therefore, the centrality and axiological dimension given to gender equality by the Court in  K, L will play a crucial role in future decisions. It is legitimate to expect that when the circumstances in the country of origin reach a point where gender equality is utterly demolished, as in the case of Afghanistan under Taliban rule, even the need for an individual assessment for the recognition of refugee status could be put aside.

 

The Dillon Judgment, Disapplication of Statutes and Article 2 of the Northern Ireland Protocol/Windsor Framework

 

 

Anurag Deb, PhD researcher, Queens University Belfast, and Colin Murray, Professor of Law, Newcastle Law School

Photo credit: Aaronward, via Wikicommons media

Extensive provisions of an Act of Parliament have been disapplied by a domestic court in the UK for the first time since Brexit. That is, in itself, a major development, and one which illustrates the power of the continuing connections between the UK and EU legal orders under the Withdrawal Agreement. It is an outcome which took many by surprise, even though we have argued at length that the UK Government has consistently failed to recognise the impact of Article 2 in rights cases. So here is the story of this provision of the Withdrawal Agreement, the first round of the Dillon case, and why understanding it will matter for many strands of the current government’s legislative agenda.

Article 2 of the Windsor Framework, as the UK Government insists on calling the entirety of what was the Northern Ireland Protocol (even though the Windsor Framework did nothing to alter this and many other provisions), is one of the great survivors of this most controversial element of the Brexit deal. Whereas other parts of the Brexit arrangements for Northern Ireland have been repeatedly recast, the wording of this provision has remained remarkably consistent since Theresa May announced her version of the Brexit deal in November 2018 (although it was Article 4 in that uncompleted version of the deal).

The provision was tied up relatively early in the process. Indeed, it suited the UK Government to be able to claim that rights in Northern Ireland were being protected as part of the Withdrawal Agreement, to enable them to avoid claims that Brexit was undermining the Belfast/Good Friday Agreement of 1998. Although the 1998 Agreement makes limited mention of the EU in general, it devotes an entire chapter to rights and equality issues, and EU law would play an increasing role with regard to these issues in the years after 1998.   

The UK Government made great play of explaining, in 2020, that its Article 2 obligations reflected its ‘steadfast commitment to upholding the Belfast (“Good Friday”) Agreement (“the Agreement”) in all its parts’ (para 1). Even as it appeared ready to rip up large portions of the Protocol, in the summer of 2021, the Article 2 commitments continued to be presented as ‘not controversial’ (para 37). It might more accurately have said that these measures were not yet controversial, for no one had yet sought to use this provision to challenge the operation of an Act of Parliament. In a powerful example of Brexit “cake-ism”, the UK Government loudly maintained that Article 2 was sacrosanct only because it had convinced itself that the domestic courts would not be able to make much use of it.

Little over a month ago, the Safeguarding the Union Command Paper all-but sought to write the rights provision out of the Windsor Framework (para 46):

The important starting point is that the Windsor Framework applies only in respect of the trade in goods - the vast majority of public policy is entirely untouched by it. … Article 2 of the Framework does not apply EU law or ECJ jurisdiction, and only applies in the respect of rights set out in the relevant chapter of the Belfast (Good Friday) Agreement and a diminution of those rights which arises as a result of the UK’s withdrawal from the EU.

Article 2 is a complex and detailed provision, by which (read alongside Article 13(3)) the UK commits that the law in Northern Ireland will mirror developments in EU law regarding the six equality directives listed in Annex 1 of the Protocol and, where other aspects of EU law protect aspects of the rights and equality arrangements of the relevant chapter of the 1998 Agreement, that there will be no diminution of such protections as a result of Brexit. But notwithstanding the complexity of these multi-speed provisions, by no construction can it be tenable to suggest that ‘the Windsor Framework applies only in respect of the trade in goods’.

The Dillon judgment marks the point at which the Government’s rhetoric is confronted by the reality of the UK’s Withdrawal Agreement obligations, and the extent to which they are incorporated into domestic law by the UK Parliament’s Withdrawal legislation. The case relates to the controversial Northern Ireland Troubles (Legacy and Reconciliation) Act 2023, heralded by the UK Government as its vehicle for addressing the legal aftermath of the Northern Ireland conflict. This Act, in preventing the operation of civil and criminal justice mechanisms in cases relating to the conflict, providing for an alternate body for addressing these legacy cases (Independent Commission for Reconciliation and Information Recovery) and requiring this body to provide for immunity for those involved in causing harms during the conflict, has provoked widespread concern within and beyond Northern Ireland.

The Act has been the subject of challenges under the Human Rights Act 1998 and an inter-state action against the UK launched before the European Court of Human Rights by Ireland. In the interest of brevity, however, this post will explore only the challenges under the Protocol/Windsor Framework. This is not the first case to invoke Article 2 (see here and here for our analysis of earlier litigation to which the UK Government should have paid more attention), but this remains the most novel element of the litigation, testing the operation of this element of the Withdrawal Agreement. It is also offers the most powerful remedy directly available to those challenging the Act; disapplication of a statute to the extent that it conflicts with those elements of EU law which this provision preserves.

These requirements are explained by the operation of Article 4 of the Withdrawal Agreement, which spells out that elements of the Withdrawal Agreement and the EU law which continues to be operative within the UK as a result of that Agreement will continue to be protected by the same remedies as applicable to breaches of EU law by Member States. Section 7A of the European Union (Withdrawal Act) 2018 reflected this obligation within the UK’s domestic jurisdictions, as accepted by the UK Supreme Court in the Allister case (see here for analysis). For Mr Justice Colton, his task could thus be summarised remarkably easily; ‘any provisions of the 2023 Act which are in breach of the WF [Windsor Framework] should be disapplied’ (para 527). All he had to do, therefore, was assess whether there was a breach.

The rights of victims are a prominent element of the Rights, Safeguards and Equality of Opportunity chapter of the 1998 Agreement. These rights were, in part, given protection within Northern Ireland Law through the operation of the Victims’ Directive prior to Brexit and, insofar as this EU law is being implemented, through the operation of the EU Charter of Fundamental Rights with regard to its terms. The key provision of the Victims’ Directive is the guarantee in Article 11 that applicants must be able to review a decision not to prosecute, a right clearly abridged where immunity from prosecution is provided for under the Legacy Act. The breach of this provision alone was therefore sufficient to require the application of extensive elements of the Legacy Act (sections 7(3), 8, 12, 19, 20, 21, 22, 39, 41, 42(1)) (para 608):

It is correct that article 11(1) and article 11(2) both permit procedural rules to be established by national law. However, the substantive entitlement embedded in article 11 is a matter for implementation only and may not be taken away by domestic law. The Directive pre-supposes the possibility of a prosecution. Any removal of this possibility is incompatible with the Directive.

The UK Government cannot claim to have been blindsided by this conclusion. They explicitly acknowledged the specific significance of the Victims’ Directive for the 1998 Agreement commitments in their 2020 Explainer on Article 2 (para 13). Moreover, in the context of queries over the application of Article 2 to immigration legislation, the UK Government insisted that in making provisions for victims the 1998 Agreement’s ‘drafters had in mind the victims of violence relating to the conflict in Northern Ireland’. Exposed by these very assertions, the Government hoped to browbeat the courts with a vociferous defence of the Legacy Act (going so far as to threaten consequences against Ireland for having the temerity to challenge immunity arrangements which raised such obvious rights issues).

The strange thing about the Dillon case, therefore, is not that the court disapplied swathes of the Legacy Act. This outcome is the direct consequence of the special rights protections that the UK agreed for Northern Ireland as part of the Withdrawal Agreement. The strange thing is that Mr Justice Colton arrived at this position so readily, in the face of such a determined efforts by the UK Government to obscure the extent of the rights obligations to which it had signed up. In the context of the UK’s full membership of the EEC and its successors, it took many years and many missteps to get to Judicial Committee of the House of Lords applying the remedy of disapplication of statutory provisions which were in conflict with EU law (or Community law, as it then was) in Factortame (No. 2). The Northern Ireland High Court was not distracted from recognising that these requirements remain the same within Northern Ireland’s post-Brexit legal framework when it comes to non-diminution of rights as a result of Brexit.

Indeed, the Court could not be so distracted. As we set out above, once Colton J determined that relevant sections of the Legacy Act had breached the Victims’ Directive, the judge had no discretion in the matter of disapplying the offending sections. This marks perhaps one of the strangest revelations to emerge from Brexit. Disapplication of inconsistent domestic law (of whatever provenance) as a remedy extends across much of the Withdrawal Agreement, covering any and every aspect of EU law which the Agreement makes applicable in the UK. This fact – spelled out in the crisp terms of Article 4 of the Withdrawal Agreement – was nowhere to be found in the 1972 Accession Treaty by which the UK became part of the (then) EEC. This is unsurprising, considering that the primacy of Community law over domestic law was then a relatively recent judicial discovery. In the decades since then, however, the principle of EU law primacy and the requirement that inconsistent domestic laws be disapplied have become a firm and irrevocable reality. Small wonder then, that the UK Government accepted it as a price to pay for leaving Brussels’ orbit without jeopardising the 1998 Agreement – no matter how it has since spun the notion of “taking back control”.

Where the government might have its own interests in attempting to obscure the clarity of Article 2 and its attendant consequences, Dillon is by some measure a wake-up call for Westminster. The report of the Joint Committee on Human Rights’ scrutiny of the Bill which became the Legacy Act contained no reference to the Windsor Framework, notwithstanding consistent work by the statutory Human Rights and Equality Commissions in Northern Ireland (the NIHRC and ECNI) to highlight the issue. Dillon marks not only some of the most extensive disapplication of primary legislation ever enacted by Parliament, but also the first such outcome after Brexit. But Dillon is only the beginning. It will be followed in the weeks to come by a challenge to the Illegal Migration Act 2023 by the NIHRC, where there are clear arguments that relevant EU law has been neglected. The Government, and Westminster in general, have not woken up to the legal realities of the Brexit deal. Dillon makes clear that Parliament needs to pay far greater attention to the Windsor Framework; not as a legal curio that only occasionally escapes its provincial relevance, but as a powerful source of law which impacts law-making and laws which are intended to apply on a UK-wide basis.

  

Update to the Commentary on the EU Charter of Fundamental Rights: Article 47 and the rule of law

 

 

 

European norms on the independence of the judiciary and the rule of law

 

The following is a precise of the most recent developments on the question of independence of the judiciary and the rule of law. It is to be read in conjunction with paragraphs 47.349 to 47.359 in S. Peers, T. Hervey, J. Kenner, and A. Ward (eds.) The EU Charter of Fundamental Rights: a Commentary (2021, Bloomsbury, second edition).

 

Manifestly irregular judicial appointments

 

Manifestly irregular judicial appointments

 

1.      The question of manifestly irregular judicial appointments has been addressed in case law of both the European Court of Human Rights and the CJEU. The former tribunal has confirmed that Article 6(1) ECHR is also applicable to proceedings before constitutional courts. It follows that a panel of a constitutional court which includes an individual irregularly elected to this body, and manifestly violating, inter alia, the said constitutional court’s previous judgments, cannot be said to be a ‘tribunal established by law’.[1] In two subsequent judgments, the European Court of Human Rights has further established that Poland’s two newly chambers created by Poland’s current governmental coalition do not constitute tribunals established by law within the meaning of Article 6(1) ECHR due inter alia to the undue influence exercised by the legislative and executive powers and the fundamental irregularities that adversely affected the procedure for appointing judges to these two new chambers.[2]

 

2.      The CJEU has equally held in its ruling in Case C-487/19 with reference to the second subparagraph of Article 19(1) TEU and the principle of primacy of EU law that the order by which a judge dismissed the action of a judge transferred against his will must be declared null and void if the appointment of the deciding judge ‘took place in clear breach of fundamental rules which form an integral part of the establishment and functioning of the judicial system concerned’ and ‘the integrity of the outcome of that procedure is undermined … with the result that that order may not be regarded as being made by an independent and impartial tribunal previously established by law’.[3] Most recently, the European Commission launched its first ever infringement action against a Member State on account of the unlawful appointments made to the national constitutional court in breach of the fundamental rules forming an integral part of the establishment and functioning of the system of constitutional review in the Member State, which led the Commission to conclude that the said constitutional court no longer meets the requirements of a tribunal previously established by law, as required by Article 19(1) TEU.[4]

 

3.      It is now firmly established that compliance by a Member State with the values enshrined in Article 2 TEU is a condition for the enjoyment of all of the rights deriving from the application of the Treaties to that Member State.  In consequence, a Member State cannot amend its legislation in such a way as to bring about a reduction in the protection of the value of the rule of law, a value which is given concrete expression by, inter alia, Article 19 TEU. The Member States are thus required to ensure that, in the light of that value, any regression of their laws on the organisation of justice is prevented, by refraining from adopting rules which would undermine the independence of judges.[5]

 

4.      Development of jurisprudence on manifestly irregular judicial appointments has not emanated exclusively from Poland. In this context, one must also take due note of the CJEU’s Grand Chamber judgment as regards the provisions governing judicial appointments in Malta in which the Court was asked inter alia to clarify whether the second subparagraph of Article 19(1) TEU and Article 47 of the Charter must be interpreted as precluding national laws conferring a decisive power to the Prime Minister with respect to the appointment of new judges.[6] For the Court, Article 47 of the Charter was not, as such, applicable to the dispute, because the plaintiff was not relying on a right conferred on it by a provision of EU law. The second subparagraph of Article 19(1) TEU was, by contrast, relevant and applicable as it sought ‘to ensure that the system of legal remedies established by each Member State’ guaranteed ‘effective judicial protection in the fields covered by EU law’.[7] For the first time, the Court also explicitly held that ‘the second subparagraph of Article 19(1) TEU must be interpreted as precluding national provisions relating to the organisation of justice which are such as to constitute a reduction, in the Member State concerned, in the protection of the value of the rule of law, in particular the guarantees of judicial independence’.[8] The Court did not, however, detect any regression as far as the situation in Malta was concerned, to the extent the process of appointing judges appeared to have been made more objective following the establishment of a sufficiently independent Judicial Appointments Committee.

 

 

Objective legitimate doubts with respect to independence

 

5.      The CJEU has clarified that the second subparagraph of Article 19(1) TEU must be interpreted as precluding national legislative changes where it is apparent that these changes ‘are capable of giving rise to legitimate doubts, in the minds of subjects of the law, as to the imperviousness of the judges appointed, by the President of the Republic of Poland, on the basis of those decisions of the KRS [National Council of the Judiciary], to external factors, in particular, to the direct or indirect influence of the legislature and the executive, and as to their neutrality with respect to the interests before them and, thus, may lead to those judges not being seen to be independent or impartial with the consequence of prejudicing the trust which justice in a democratic society governed by the rule of law must inspire in subjects of the law’.[9] This rule extends to appointment of judges to managerial posts and to the designation of prosecutors,[10] with the CJEU having held that Member State rules governing the personal liability of judges for judicial error can be inconsistent with Article 2 TEU and the second subparagraph of Article 19 (1) TEU.[11] 

 

6.      The same applies to the appointment of judges to disciplinary chambers. Such appointments are to contain safeguards to secure the independence of judges subject to disciplinary regimes,[12] seen from this objective standard. Further, in order to avoid any risk of a disciplinary regime  being used as a system of political control of the content of judicial decision, such a regime must include rules defining the forms of conduct which constitute a disciplinary offence,[13] and with sufficient clarity.[14] 

 

7.      In addition to this, too broader a discretion in the hands of an individual judge in the designation of the competent disciplinary tribunal to adjudicate on a given case is inconsistent with the requirement under EU law (notably Articles 19 (1) TEU,  47 and 48 of the Charter) for tribunals to be ‘established by law’.[15] The rights of the defence and adjudication within a reasonable time are also to be protected in such proceedings.[16]

 

8.      Finally, given that the Article 267 reference mechanism is a keystone of the EU judicial edifice, provisions of national law which expose national judges to disciplinary proceedings as a result of the fact that they made a reference for a preliminary ruling to the CJEU cannot be permitted.[17] Equally, objections to the effect that the referring body did not amount to a ‘court or tribunal’ under Article 267 TFEU for failure to comply with domestic requirements with respect to its composition will not be reviewed by the CJEU, given the established rule that ‘it is not for the Court, in view of the distribution of functions between itself and the national court, to determine whether the order for reference was made in accordance was made in accordance with the rules of national law governing the organisation of the courts and their procedure.’[18] The CJEU is therefore bound by an order for reference in so far as that order has not been rescinded on the basis of means of redress provided by Member State law.[19]

 

9.      Thus, a rule of national law cannot prevent a national court from exercising the discretion to refer under Article 267 TFEU, which is inherent part of the system of cooperation between the national courts and the Court of Justice established in Article 267 TFEU. In consequence, a national court must be able to maintain a reference for a preliminary ruling after it has been made. A national rule the effect of which may inter alia be that a national court will choose to refrain from referring questions for a preliminary ruling to the Court in order to avoid having the case withdrawn from it is detrimental to the prerogatives thus granted to national courts and tribunals by Article 267 TFEU and, consequently, to the effectiveness of the cooperation between the Court and the national courts and tribunals established by the preliminary ruling mechanism. Consequently, while it is in principle permissible for a Member State, for example, to amend its domestic rules conferring jurisdiction, with the possible consequence that the legislative basis on which the jurisdiction of a national court which has made a reference for a preliminary ruling has been established will disappear, or to adopt substantive rules that have the incidental consequence of rendering the case in which such a reference was made devoid of purpose, a Member State cannot, without infringing Article 267 TFEU, read in conjunction with the third subparagraph of Article 4(3) TEU, make amendments to its national legislation the specific effects of which are to prevent requests for a preliminary ruling addressed to the Court from being maintained after they have been made, and thus to prevent the latter from giving judgment on such requests, and to preclude any possibility of a national court repeating similar requests in the future.[20] Similarly, EU law precludes a national supreme court from declaring a request for a preliminary ruling submitted by a lower court unlawful on the ground that the questions are not relevant and/or necessary with EU law directly granting national courts the authority to disregard any national judicial practice which is prejudicial to their right to make a reference to the Court of Justice.[21]

Consequences following from the obligations enshrined in Article 19 (1) TEU

 

10.  Where it is proved that the second subparagraph of Article 19(1) TEU has been infringed, the principle of primacy of EU law must be interpreted as requiring the referring court to disapply relevant national provisions, even in the face of impediments to so doing under domestic constitutional law.[22] Interim relief must also be available under Member State law to guarantee the independence of the judiciary,[23] just as it is before the CJEU to secure compliance of a Member State with a judgment issued in consequence of a direct action instituted by the Commission for non-compliance with respect for the rule of law and the independence of the judiciary inconsistently with Article 2 TEU and the second sub-paragraph of Article 19(1) TEU.[24]  Pending a ruling on independence, a judge should not be appointed,[25] and any order issued by such a judge must be voided, in accordance with the primacy of EU law.[26]

 

11.   More broadly, the second subparagraph of Article 19(1) TEU requires Member States to provide remedies that are sufficient to ensure effective legal protection, within the meaning in particular of Article 47 of the Charter, in the fields covered by EU law, meaning that the latter provision must be duly taken into consideration for the purposes of interpreting the second subparagraph of Article 19(1) TEU.[27] Given that the Article 47 of the Charter has been held to have direct effect,[28] the second subparagraph of Article 19(1) TEU imposes on the Member States a clear and precise obligation as to the result to be achieved and that obligation is not subject to any condition as regards the independence which must characterise the courts called upon to interpret and apply EU law.[29]  Under the second subparagraph of Article 19(1) TEU, every Member State must ensure that the bodies which, as ‘courts or tribunals’ within the meaning of EU law, come within its judicial system in the fields covered by EU law and which, therefore, are liable to rule, in that capacity, on the application or interpretation of EU law, meet the requirements of effective judicial protection.[30]

 

12.  The remedial rights of Member States are protected, in the sense that the CJEU has ruled that it had jurisdiction to judicially review a resolution of the European Parliament on a proposal calling on the Council of the European Union to determine the existence of a clear risk of a serious breach of the values on which the European Union is founded.[31]

Photo credit: Razvan Orendovici, via wikicommons

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[1]Xero Flor w Polsce sp. z o.o. v. Poland, CE:ECHR:2021:0507JUD000490718. For further analysis, M. Szwed, ‘What Should and What Will Happen After Xero Flor: The judgement of the ECtHR on the composition of the Polish Constitutional Tribunal’, VerfBlog, 9 May 2021, <https://verfassungsblog.de/what-should-and-what-will-happen-after-xero-flor>; M. Leloup, ‘The ECtHR Steps into the Ring: The Xero Flor ruling as the ECtHR’s first step in fighting rule of law backsliding’, VerfBlog, 10 May 2021, <https://verfassungsblog.de/the-ecthr-steps-into-the-ring>.

[2] See Judgment of 22 July 2021, Reczkowicz v. Poland, CE:ECHR:2021:0722JUD004344719 (the Disciplinary Chamber of the Poland’s Supreme Court is not a tribunal established by law); Judgment of 8 November 2021, Dolińska-Ficek and Ozimek v. Poland, CE:ECHR:2021:1108JUD004986819 (the Chamber of Extraordinary Review and Public Affairs of Poland’s Supreme Court is not an independent and impartial tribunal established by law).

[3] Case C-487/19, W.Ż., EU:C:2021:798, paragraph 162. See also Opinions of AG Tanchev in W.Ż., C-487/19, EU:C:2021:289 and M.F., C-508/19, EU:C:2021:290.

[4] European Commission, Rule of Law: Commission launches infringement procedure against Poland for violations of EU law by its Constitutional Tribunal, Press release IP/21/7070, 22 December 2021: https://ec.europa.eu/commission/presscorner/detail/en/IP_21_7070.

[5] E.g. judgment of 15 July 2021, Commission v Poland (Régime disciplinaire des juges) EU:C:2021:596, [51], (referring to judgments of 20 April 2021, Repubblika, C‑896/19, EU:C:2021:311, [63 to 65] and the case-law cited, and judgment of 18 May 2021,  Asociaţia ‘Forumul Judecătorilor din România’ and Others, C-83/19, C-127/19, C-195/19, C-291/19, C-355/19, and C-397/19, EU:C:2021:393, [162]. For a transversal and comprehensive overview of the Court’s case law starting with ASJP, C-64/16, EU:C:2018:117 and ending with Repubblika, C-896/19, EU:C:2021:31, see L Pech and D Kochenov, Respect for the Rule of Law in the Case Law of the European Court of Justice: A Casebook Overview of Key Judgments since the Portuguese Judges Case (Stockholm, SIEPS, 2021).

[6] Judgment of 20 April 2021, Repubblika v Il-Prim Ministru, C-896/19, EU:C:2021:31.

[7] [52].

[8] [65].

[9] Judgment of 2 March 2021, A.B. et al (Appointment of judges to the Supreme Court – Actions), C-824/18, EU:C:2021: [153], [150] and [167]. See further judgment of 15 July 2021, Commission v Poland (Régime disciplinaire des juges), C-791/19, EU:C:2021:596, [99 to 110]. See further on Poland’s K.R.S, the judgments of 19 November 2019, A.K. and others (Independence of the Disciplinary Chamber of the Supreme Court, C-585/18, C-624/18, and C-625/18, EU:C:2019:982, and of 2 March 2021, AB and Others, C-824/18; EU:C:2021:153.

[10] Judgment of 18 May 2021, Asociaţia ‘Forumul Judecătorilor din România’ and Others, C-83/19, C-127/19, [C-195/19, C-291/19, C-355/19, and C-397/19, EU:C:2021:393

[11] Ibid, [224 to 241].

[12] See most recently judgment of 15 July 2021, Commission v Poland (Régime disciplinaire des juges), C-791/19, EU:C:2021:596. For a The rules developed in the context of disciplinary procedures have been extended by the CJEU to the secondment of judges, see the judgment of 16 November 2021, WB, C-748/19, EU:C:2021:931, and transfer of judges to another court without consent, judgment of 6 October 2021, WZ, C-487/19, EU:C:2021:798, [114]

[13] Judgment of 15 July 2021, Commission v Poland (Régime disciplinaire des juges), C-791/19, EU:C:2021:596, [134]. For further analysis, see L. Pech, ‘Protecting Polish Judges from Political Control: A brief analysis of the ECJ’s infringement ruling in Case C-791/19 (disciplinary regime for judges) and order in Case C-204/21 R (muzzle law)’, VerfBlog, 20 July 2021: https://verfassungsblog.de/protecting-polish-judges-from-political-control/

[14] Ibid [140] and the case law cited.

[15] Ibid [164 to 176]. See recently on the concept of ‘established by law’ the Opinion of Advocate General Bobek of 8 July 2021, C-132/20, Getin Noble Bank, EU:C:2021:557, judgment pending. For a critical assessment of this Opinion, see L. Pech and S. Platon, ‘How not to deal with Poland’s fake judges’ requests for a preliminary ruling: A critical analysis of AG Bobek’s proposal in Case C-132/20’, Verfblog, 28 July 2021: https://verfassungsblog.de/how-not-to-deal-with-polands-fake-judges-requests-for-a-preliminary-ruling/

[16] Ibid [187 to 214]. See further on the rights of the defence, in the context of the presumption of innocence with respect to termination of the secondment of a judge, the judgment of 16 November 2021, WB, Joined Cases C-748/19 and C-754/19, EU:C:2021:931 [88-89]

[17] Ibid [227] and the case law cited. See also the judgment of 23 November 2021, IS (Illegality of the order for reference), C-564/19, EU:C:2021:949.

[18]  Judgment of 16 November 2021, WB and Others, Joined Cases C-748/19 to C-754/19, EU:C:2021:931, [44]

[19] Ibid. See also the judgment of 2 March 2021, AB and Others, C-824/18; EU:C:2021:153 [74 and 75].

[20] Judgment of 2 March 2021, AB and Others, C-824/18; EU:C:2021:153, [93 – 95], referring to, inter alia, judgment of 19 November 2019, A.K. and others (Independence of the Disciplinary Chamber of the Supreme Court, C-585/18, C-624/18, and C-625/18, EU:C:2019:982. See also [141] of the judgment of 2 March 2021, AB and Others, C-824/18; EU:C:2021:153.

[21] Judgment of 23 November 2021, IS (Illegality of the order for reference), C-564/19, EU:C:2021:949.

[22] Judgment of 18 May 2021, Asociaţia ‘Forumul Judecătorilor din România’ and Others, C-83/19, C-127/19, C-195/19, C-291/19, C-355/19, and C-397/19, EU:C:2021:393 [242 to 252]. See also judgments of 6 October 2021, WZ, C-487/19? EU:C:2021:798 [155 to 161], and of 2 March 2021, AB and Others, C-824/18; EU:C:2021:153, [81] and [140 to 148]; judgment of 21 December 2021, Euro Box Promotion e.a., C-357/19, C-379/19, C-547/19, C-811/19 and C-840/19, C:2021:1034. 

[23] Judgment of 6 October 2021, WZ, C-487/19? EU:C:2021:798 [142]

[24] E.g. judgment of 6 October 2021, Poland v Commission, C-204/21 R – RAP, EU:C:2021:834; judgment of 27 October 2021 R, Commission v Poland, C-204/21 R, EU:C:2021:878.

[25] Judgment of 6 October 2021, WZ, C-487/19, EU:C:2021:798 [143].

[26]  Ibid, [155]

[27]  Judgment of 2 March 2021, AB and Others, C-824/18; EU:C:2021:153, [143], referring to, inter alia, judgment of 19 November 2019, A.K. and others (Independence of the Disciplinary Chamber of the Supreme Court, C-585/18, C-624/18, and C-625/18, EU:C:2019:982.

[28] Ibid, [145].

[29] Ibid, [146].

[30] Ibid [114] and the case law cited.

[31] Judgment of 3 June 2021, Hungary v European Parliament, C-650/18, EU:C:2021426. See also the Opinion of Advocate General Bobek of 3 December 2020, EU:C:2020:985, and the Opinion of Advocate General Sánchez Bordona, Hungary v European Parliament and Council, C-156/21, EU:C:2021:974.