Abstract
Judicial independence is a cornerstone of the rule of law. This notion is gaining relevance as a result of the judiciary reforms implemented in many non-liberal democracies. Both the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR) have often addressed judicial independence. However, only recently have they tied judicial independence with the rule of law. The CJEU has moved from a specific vision tied to the EU notion of national court or tribunal to a constitutional dimension whereby, through a creative interpretation of the second subparagraph of Article 19(1) TEU, considers that the principle of judicial independence is inherent to this provision. As for the ECtHR, some individual complaints arising from measures adopted by states signatories of the ECHR where there are systemic deficiencies in the rule of law related to judicial independence have resulted in interesting decisions. Nevertheless, the ECtHR’s individual right-oriented approach, and the fact that judicial review is implemented by means of individual complaints, narrow the ECtHR’s scope of action to tackle potential systemic risks entailed by the violations of judicial independence. In any case, the protection of judicial independence as an inherent element of the rule of law should not be dealt with in comparative terms, but rather in terms of cooperation. To this date, the contributions of both courts have proven the importance of the judicial dimension to counter the threats to the independence of the judiciary.
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Notes
- 1.
Report on the rule of law—Adopted by the Venice Commission at its 86th plenary session (Venice, 25-26 March 2011), CDL-AD(2011)003rev-e (https://www.venice.coe.int/webforms/documents/?pdf=CDL-AD(2011)003rev-e; all websites have last been accessed on 14 April 2021).
- 2.
“Challenges for judicial independence and impartiality in the member states of the Council of Europe,” Report prepared jointly by the Bureau of the CCJE and the Bureau of the CCPE for the attention of the Secretary General of the Council of Europe as a follow-up to his 2015 report entitled “State of Democracy, Human Rights and the Rule of Law in Europe – a shared responsibility for democratic security in Europe,” 24 March 2016, p. 17 (Information Documents, SG/Inf(2016)3rev, https://rm.coe.int/168066d624).
- 3.
Case 61/65, Vaassen-Göbbels, Judgment of 30 June 1966, EU:C:1966:39.
- 4.
Case C-506/04, Wilson, Judgment of 19 September 2006, EU:C:2006:587, paragraphs 51-52.
- 5.
Nonetheless, there is an exception: Judgment of 4 February 1999 delivered in Köllensperger and Atzwanger, C-103/97. When ruling on whether an Austrian body (the Landesvergabeamt) was independent, the Court of Justice reviewed a provision from a piece of legislation whose capacity to guarantee such independence was in question. The CJEU asserted that “[i]t is not for the Court to infer that such a provision is applied in a manner contrary to the Austrian Constitution and the principles of a State governed by the rule of law” (paragraph 24).
- 6.
Case C-64/16, Judgment of the CJEU (Grand Chamber) of 27 February 2018, EU:C:2018:117.
- 7.
Paragraph 29.
- 8.
In the view of Roeben (2019, p. 39): “TEU Art. 19 as interpreted by Portuguese Judges effectuates the meta-norm of judicial protection by overriding the limits that Charter Art. 51 imposes”.
- 9.
Paragraph 32. As noted by Spieker (2019): “In establishing this connection, the Court seems to render Article 2 TEU judicially applicable. It implicitly rejected an isolated, direct application of Article 2 TEU and opted for a ‘combined approach.’ The CJEU uses a provision containing a specific obligation to ‘operationalise’ the values enshrined in Article 2 TEU”.
- 10.
Paragraph 37.
- 11.
Paragraph 41.
- 12.
Paragraph 44.
- 13.
Paragraph 45.
- 14.
Paragraphs 46–51.
- 15.
See points 61, 64 and 66–67.
- 16.
Pech and Platon (2018), p. 1839.
- 17.
Ibid. As has been underlined by K. Lenaerts (2018, p. 8): “where a national court qualifies as a ‘court or tribunal’ as defined by EU law and such a court enjoys jurisdiction to rule on questions of EU law, that court acts as a European court and accordingly, Article 19(1) TEU protects its independence”.
- 18.
García-Valdecasas Dorrego (2019), p. 84.
- 19.
García-Valdecasas Dorrego (2019), p. 76.
- 20.
Bonelli and Claes (2018), p. 623.
- 21.
Case C-216/18 PPU, LM , Judgment of the CJEU (Grand Chamber) of 25 July 2018, EU:C:2018:586.
- 22.
Paragraphs 50–54, 63–67.
- 23.
- 24.
- 25.
Case C-49/18, Judgment of 7 February 2019, EU:C:2019:106.
- 26.
See paragraphs 62–67. As for whether the specific measure had an impact on judicial independence, in Escribano Vindel the CJEU added some nuances (see García-Valdecasas Dorrego (2019) p. 89).
- 27.
COM(2017) 835 final. In the words of Sarmiento (2018), the decision “is certainly not mostly about Portuguese judges, but rather about Polish and Hungarian judges”. Also, according to Bonelli and Claes (2018, p. 636): “The ruling of the Court of Justice in C-64/16 can best be understood by shifting the attention from Lisbon to Warsaw”.
- 28.
Cases 619/18, 192/18 and C-791/19.
- 29.
Joined cases C-585/18, C-624/18 and C-625/18; Joined cases C-558/18 and C-563/18; Joined cases C-522/18 and C-668/18; Case C-537/18; Case C-623/18; Case 824/18.
- 30.
- 31.
From the standpoint of judicial independence, the relevant one is Case C-286/12 on the retirement of judges.
- 32.
Specifically, the European Commission requested that the Court declare that, first, by lowering the retirement age of the judges appointed to the Sąd Najwyższy (Supreme Court, Poland) and by applying that measure to the judges in post appointed to that court before 3 April 2018 and, secondly, 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, the Republic of Poland has failed to fulfil its obligations under the combined provisions of the second subparagraph of Article 19(1) TEU and Article 47 of the Charter of Fundamental Rights of the European Union. The influence of the ASJP Judgment was evident in the Commission’s action, since in this case the Commission had criticized that these provisions were relied on in the referral for a preliminary ruling, contending that the referring court had not set out the reasons for choosing those specific EU law provisions (see paragraph 19 of Judgment of 27 February 2018).
- 33.
Case C-619/18 R, EU:C:2018:852. Interestingly enough, the Order fails to mention the ASPJ case or Article 19 TEU. The legal foundations included in this Order briefly refer to the case Minister for Justice and Equality (Deficiencies in the system of justice) (see paragraph 20).
- 34.
Case C-619/18 R, EU :C :2018 :1021 (text rectified by order of 2 July 2019). The legal grounds included in the Order refer to the ASPJ case and to the second subparagraph of Art. 19(1) TEU (see paragraphs 40 and 43–44), although the case Minister for Justice and Equality (Deficiencies in the system of justice) retains a more significant presence (see paragraphs 40–42, 66–67, 74 and 77).
- 35.
Case C-619/18, EU:C:2019:531. By Order of 15 November 2018 (EU:C:2018:910), the case was determined under the expedited procedure.
- 36.
See paragraphs 42–50 and 54.
- 37.
Paragraph 55.
- 38.
Paragraph 57.
- 39.
Paragraph 58.
- 40.
Paragraph 59.
- 41.
See paragraphs 72–75; see also paragraph 108.
- 42.
Simonelli (2019).
- 43.
As put forward by Pingel (2019, p. 831): “La position est habile. Elle offre, d’une part, à la Cour une base de compétence élargie (le champ d’application matériel de l’Art. 19 TUE, tel que interprété par l’arrêt Associação Sindical dos Juízes Portugueses, est plus étendu que celui de l’Art. 47 de la Charte) sans l’obliger à renoncer à se référer, à titre subsidiaire, aux droits protégés par la Charte”.
- 44.
Case C-192/18, EU:C:2019:924.
- 45.
The Commission’s action also referred to the infringement of Article 157 TFEU and Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation. These breaches related to the distinctions made by the Polish legislation between women and men concerning the retirement age for judges of the ordinary Polish courts and public prosecutors in Poland.
- 46.
See paragraphs 98–107.
- 47.
See paragraph 108–115.
- 48.
Joined cases C-585/18, C-624/18 and C-625/18, EU:C:2019:982. The decision rendered by the CJEU has given rise to a Judgment of the Polish Supreme Court dated 5 December 2019. This ruling declared that the Polish National Council of the Judiciary does not guarantee the right to effective judicial protection because it is neither impartial nor independent from the legislative or the executive branches of Government. The Polish Supreme Court also ruled that the so-called Disciplinary Chamber is not a court within the meaning of EU law and Polish law (Supreme Court of Poland, Judgment of 5 December 2019, A.K., PO 7/18); see Zelazna (2019).
- 49.
See paragraphs 120–125.
- 50.
See paragraphs 126–130.
- 51.
See paragraphs 132–154.
- 52.
See paragraphs 120 and 124.
- 53.
See paragraphs 167–169.
- 54.
Opinion delivered on 27 June 2019, EU:C:2019:551; see point 77.
- 55.
Paragraph 85. Advocate General Tanchev had already elaborated on this concept in his Opinion delivered in Case C-192/18 (Opinion delivered on 20 June 2019, point 97, EU:C:2019:529).
- 56.
“The principle of the effective judicial protection of individuals’ rights under EU law, referred to in the second subparagraph of Article 19(1) TEU, is a general principle of EU law which is now enshrined in Article 47 of the Charter, so that the former provision requires Member States to provide remedies that are sufficient to ensure effective legal protection, within the meaning in particular of the latter provision, in the fields covered by EU law” (paragraph 168). In the view of Platon (2019b): “Surely, by insisting on the substantial proximity between Article 47 and Article 19, the Court suggests that the two standards are the same, but a clarification would be welcome”. Precisely the fact that in A.K. it did not base its decision on Article 19 TEU and left it to the referring court the deduction of the appropriate consequences on the independence of the Discipline Chamber of the Polish Supreme Court had been invoked by Poland to oppose the Commission’s claims in its request for interim measures in the case C-791/19 R; in its Order of 8 April 2020 (EU:C:2020:277), the Court has not taken account of that argument, recalling that, in the context of the question referred for a preliminary ruling, it is not for it to rule on the compatibility of a national provision with the rules of EU law but to provide the national court with all the elements of interpretation necessary for it to assess the conformity itself, so the relevance of the elements identified by the CJ in that case in assessing the independence of the Disciplinary Chamber is not limited only to that particular case (paragraphs 73–76).
- 57.
Paragraph 169.
- 58.
See paragraphs 145–152.
- 59.
Opinion delivered on 20 June 2019, EU:C.2019:529; see paragraph 101.
- 60.
Cases C-558/18 and C-563/18, EU:C:2020:234.
- 61.
Paragraph 58.
- 62.
Paragraph 59.
- 63.
Case C-791/19. In the application, the Commission request to the Court to declare the infringement of the second subparagraph of Article 19(1) TEU because the disputed provisions: (1) allow the content of judicial decisions to be treated as a disciplinary offence; (2) fail to guarantee the independence and impartiality of the Disciplinary Chamber of the Supreme Court, which has jurisdiction for the review of decisions issued in disciplinary proceedings; (3) confer on the President of the Disciplinary Chamber of the Supreme Court the discretionary power to designate the competent disciplinary court of first instance in cases concerning judges of the ordinary courts and, therefore, (4) fail to guarantee that disciplinary cases are adjudicated on by a court ‘established by law’; (5) fail to guarantee that disciplinary cases against judges of the ordinary courts are heard within a reasonable period, and thus vi) fail to guarantee the rights of the defence of accused judges of the ordinary courts (OJ C 413, 9.12.2019, p. 36).
- 64.
EU:C:2020:277. An interesting commentary on this Order can be seen in Pech (2020).
- 65.
See in particular paragraphs 29–34 and 65–72.
- 66.
See Order of 8 April 2020, paragraphs 92–93; Judgment of the Court (Grand Chamber) 2 March 2021, case C-824/18, A.B., EU:C:2021:153, paragraphs 108–121; Judgment of the Court (Grand Chamber) 20 April 2021, case C-896/19, Reppublika v Il Prim Ministru, EU:C:2021:311, paragraphs 37, 39, 45–46, 52.
- 67.
Paragraph 43.
- 68.
Pech and Platon (2018), p. 1842. A different yet also interesting situation arises where the request for a preliminary ruling relates to the independence of a domestic judicial authority other than the referring court. This was the case in the referral from the Polish Supreme Court (Labour and Social Insurance Chamber) regarding the new Disciplinary Chamber. In its Judgment of 19 November 2019 (Grand Chamber), the CJEU listed the elements to be taken into consideration as to determine if the relevant court meets the requirements of effective judicial protection, which needs to be determined by the national requesting court. Also, the CJEU added that, if the referring court concluded that the relevant domestic tribunal failed to meet these requirements, “the principle of the primacy of EU law must be interpreted as requiring the referring court to disapply the provision of national law which reserves jurisdiction to hear and rule on the cases in the main proceedings to the abovementioned chamber, so that those cases may be examined by a court which meets the abovementioned requirements of independence and impartiality and which, were if not for that provision, would have jurisdiction in the relevant field” (Joined cases C-585/18, C-624/18 and C-625/18, cit., paragraphs 171-172). This response is fairly surprising, since it is worth inquiring about whether the national court has room to implement the CJEU’s approach under its domestic legislation.
- 69.
Bonelli and Claes (2018), p. 638.
- 70.
Opinion, cit., point 114.
- 71.
García-Valdecasas Dorrego (2019, p. 86, n. 37) had previously noted that “the Court of Justice may very well deny the status of courts or tribunals to administrative bodies that had already been acknowledged as judicial authorities in the light of its considerations in ASJP” (own translation).
- 72.
Case C-274/14, EU:C:2020:17.
- 73.
The connection between this shift and the new developments related to Article 19 TEU and the rule of law are clearly evidenced by the Opinion of Advocate General Hogan: “EU law has not stood still since the [J]udgment of 21 March 2000, Gabalfrisa and Others (C-110/98 to C-147/98, EU:C:2000:145) was decided. Article 2 TEU now provides that the Union is founded on the value of respect for the rule of law. Article 19(2) TEU provides that the judges and Advocates General of the Court of Justice ‘shall be chosen from persons whose independence is beyond doubt’. Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’) provides for a guarantee of an effective remedy and a hearing before an ‘independent and impartial tribunal’. In line, perhaps, with these Treaty and Charter developments, the Court has subsequently developed an impressive line of case law addressing the requirements of judicial independence. Much of this contemporary case law has been summarized by the Court in its Judgment of 27 February 2018, Associação Sindical dos Juízes Portugueses” (Opinion delivered on 1 October 2019, points 4-5, EU:C:2019:802).
- 74.
Simonelli (2018) has put forward that, within the notion of judicial independence as construed in the context of the preliminary ruling mechanism, the CJEU “does not include a key aspect: the discretion of the executive in the appointment and re-appointment of judges. Therefore, this notion of judicial independence may result inadequate to tackle the legislative reforms in Poland, which are posing a serious threat to the independence of the Polish judiciary. In particular, according to the Court’s previous case law, the unfettered discretion of the President of the Republic in deciding whether or not to renew the judges’ mandate –as provided for by Article 37 of the new Polish law on the Supreme Court– should not constitute an issue for the independence of the judges.” Thus, “a rethink of the notion of judicial independence as emerges from the previous case law of the Court is all the more necessary”.
- 75.
See note 60.
- 76.
The Court considers that “it is not apparent from the orders for reference that there is a connecting factor between the provision of EU law to which the questions referred for a preliminary ruling relate and the disputes in the main proceedings, and which makes it necessary to have the interpretation sought so that the referring courts may, by applying the guidance provided by such an interpretation, make the decisions needed to rule on those disputes” (paragraph 52), so “those questions do not therefore concern an interpretation of EU law which meets an objective need for the resolution of those disputes, but are of a general nature” (Paragraph 53). The Court clarifies that this impediment was not raised in the previous cases Associação Sindical dos Juízes Portugueses and A.K. (see paragraphs 49 and 51). Thus, “the Court limits preliminary references under Article 19(1)(2) TEU to procedures, in which the challenges to Article 19(1)(2) TEU form part of the legal assessment – be it as the object of the main procedure or as a preliminary question (e.g. to establish jurisdiction). This excludes challenges external to the main procedure, such as the threat of disciplinary measures” (Spieker 2020).
- 77.
Paragraph 47.
- 78.
In particular, by means of the work of the Venice Commission of the Council of Europe, the Group of States against Corruption (GRECO), the Consultative Council of European Judges (CCJE), and the Consultative Council of European Prosecutors (CCPE). Independence and impartiality of the judiciary and individual judges is included in the Rule of Law Checklist adopted by the Venice Commission in 2016 (https://www.venice.coe.int/images/SITE%20IMAGES/Publications/Rule_of_Law_Check_List.pdf).
- 79.
Ready for Future Challenges-Reinforcing the Council of Europe, Report by the Secretary General for the Ministerial Session in Helsinki, 16-17 May 2019, p. 15 (https://rm.coe.int/168093af03). The 2018 report (State of Democracy, human Rights and the rule of law-Role of institutions-Threats to institutions, expressed similar concerns; Report by the Secretary General of the Council of Europe, 2018, pp. 13-16 (https://search.coe.int/cm/Pages/result_details.aspx?ObjectId=09000016807bfcb6).
- 80.
New threats to the rule of law in Council of Europe member States: selected examples, paragraph 6.
- 81.
In his Judgment of 19 November 2019, the CJEU has summarized this ECtHR’s case law (see paragraphs 126–129).
- 82.
For instance, see Olujic v. Croatia, Judgment of 5 February 2009, Application no. 22330/05, CE:ECHR:2009:0205JUD002233005; Ozpinar v. Turkey, Judgment of 19 October 2010, Application no. 20999/04, CE:ECHR:2010:1019JUD002099904; Ramos Nunes de Carvalho v. Portugal, Judgment of 21 June 2016, Applications no. 55391/13, 57728/13 and 74041/13, CE:ECHR:1106JUD005539113; Paluda v. Slovakia, Judgment of 23 May 2017, Application no. 33392/13, CE:ECHR:2017:0523JUD003339212; Denisov v. Ukraine, Judgment of 25 September 2018, Application 76639/11, CE:ECHR:2018:0925JUD007663911 and Ástráðsson v. Iceland, Judgment of 19 March 2019, Application no. 26374/18, CE:ECHR:2019:0312JUD002637418).
- 83.
Judgment of 9 January 2013, Application no. 21722/11, CE:ECHR:2013:0109JUD002172211.
- 84.
Paragraph 199.
- 85.
See paragraphs 200–202 and 208.
- 86.
Case Baka v. Hungary, Judgment of 23 June 2016, Application no. 20261/12, CE:ECHR:2016:0623JUD002026112.
- 87.
See paragraphs 136–139.
- 88.
See paragraphs 57–87.
- 89.
Along these lines, see Vincze (2015), pp. 451 and 453.
- 90.
“[W]e consider that much was left unsaid in the written judgment. Some important features of this case were either not dealt with at all or merely touched upon indirectly” (Joint Concurring Opinion of Judges Pinto de Albuquerque and Dedov, paragraph 1).
- 91.
Ibid.
- 92.
Both Judges assert that, when declaring the violation of Article 6(1) ECHR given the circumstances of the case, the Court “affirms the Convention’s supra-constitutional effect, in order to override the contradicting domestic constitutional provision. In so doing, the Court affirms itself as the European Constitutional Court, with power to declare domestic constitutional provisions devoid of any legal effects within the relevant domestic legal order” (Joint Concurring Opinion, para. 1). They also point out that, “although not stated explicitly,” the ruling should have consequences on the basis of Article 46 ECHR, i.e., that Hungary must proceed to a declaration of nullity of the controversial domestic legislation and it must reinstate the applicant as President of the Supreme Court for the entire duration of his interrupted term. In spite the Volkov precedent, the ECtHR did not consider this option in the case (see Joint Concurring Opinion, para. 24).
- 93.
Kosar and Šipulová (2018).
- 94.
As acknowledged by Kosar and Šipulová (2018, p. 101), the ECHR “does not provide for institutional protection of the independence of judiciary in the context of the principle of the separation of powers”. In a Report on the independence of the judiciary, the Venice Commission argued that “the right to an independent and impartial tribunal is first of all guaranteed by Article 6 of the European Convention on Human Rights (…). The case law of the Court sheds light on a number of important aspects of judicial independence but, by its very nature, does not approach the issue in a systematic way” (Report on the Independence of the Judicial System. Part I: The Independence of Judges, adopted by the Venice Commission at its 82nd Plenary Session (Venice, 12-13 March 2010), para. 13, https://www.venice.coe.int/webforms/documents/?pdf=CDL-AD(2010)004-e).
- 95.
Further strengthening the Rule of Law within the Union, COM(2019) 163 final, 3 April 2019, p. 11. The Commission has reiterated this idea (Strengthening the rule of law within the Union. A blueprint for action, COM (2019) 343 final, 17 July 2019, p. 7).
- 96.
Establishment of a European Union mechanism on democracy, the rule of law and fundamental rights, paragraph 4.
- 97.
Ibid., para. 16.1.
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Andrés Sáenz de Santa María, P. (2021). Rule of Law and Judicial Independence in the Light of CJEU and ECtHR Case Law. In: Izquierdo-Sans, C., Martínez-Capdevila, C., Nogueira-Guastavino, M. (eds) Fundamental Rights Challenges. Springer, Cham. https://doi.org/10.1007/978-3-030-72798-7_9
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DOI: https://doi.org/10.1007/978-3-030-72798-7_9
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