Rule Of Police Line Backsliding Inwards The Eu: The Courtroom Of Judge To The Rescue? Or Together With Thus Thoughts On The Ecj Ruling Inwards Associação Sindical Dos Juízes Portugueses

Laurent Pech, Professor of European Law, Middlesex University London

Sébastien Platon, Professor of Public Law, University of Bordeaux

1. Introduction

The ECJ’s judgment inward the instance of Associação Sindical dos Juízes Portugueses (Case C-64/16) is noteworthy for ii reasons. First, it is arguably the most of import judgment since Les Verts  as regards the regulation of the dominion of police pull inward the European Union legal system. Secondly, it comes some beingness the European Union equivalent of the USA Supreme Court instance of Gitlow equally regards the regulation of effective judicial protection (Gitlow led to the progressive application of the USA federal Bill of Rights to all state norms fifty-fifty when the states human activity inside their ain sphere of competence: see AG Sharpston here for a brief account).

With honour to the dominion of law, inward a distich of inspired in addition to inspiring paragraphs, the Court offers a corking digest of the essential functions in addition to features of this substitution value inward the EU’s legal framework. One of the most innovative in addition to welcome aspects of this judgment is its determination on a combined reading of Article 2 TEU (values on which European Union is based in addition to mutual to its Member States), Article 4(3) TEU (principle of sincere cooperation) in addition to Article 19(1) TEU (principle of effective judicial protection of individuals’ rights nether European Union law):

The rattling existence of effective judicial review designed to ensure compliance alongside European Union police pull is of the essence of the dominion of police pull … It follows that every Member State must ensure that the bodies which, equally ‘courts or tribunals’ inside the pregnant of European Union law, come upward inside its judicial scheme inward the fields covered past times that law, see the requirements of effective judicial protection. … In monastic enjoin for that protection to live ensured, maintaining [a national] courtroom or tribunal’s independence is essential.

The Court’s ruling inward Case C-64/16 may live understood equally the Court’s reply to the worrying physical care for of ‘rule of police pull backsliding’ offset witnessed inward Hungary in addition to right away beingness seen inward Poland. This judgment essentially establishes a full general obligation for Member States to guarantee in addition to honour the independence of their national courts in addition to tribunals. What is especially noteworthy is that the Court has done this solely based on Article 19(1) TEU read inward lite of Article 2 in addition to Article 4(3) TEU. This reasoning should hopefully Pb the Polish authorities to halt repeating the ludicrous claim that it tin dismiss innovate whatever judicial ‘reforms’ it sees gibe equally the arrangement of national judiciaries falls exterior European Union competence. (In whatever event, the Irish Gaelic courts have got precisely decided to ask the ECJ whether European Arrest Warrants issued past times Poland must live executed, inward lite of dominion of police pull concerns; see also this review of the recent ECJ instance law on EAWs in addition to human rights).

Before examining how this judgment may evidence to live a potentially decisive shot across the Polish bows equally offset noted here past times Michal Ovádek (section 4), the facts in addition to outcome of this instance volition live briefly presented (section 2). This post service volition also seek to tackle the most challenging ‘technical’ number raised past times this case: when tin dismiss i challenge a national stair out nether Article 19(1) TEU, right away considered a self-standing provision? It volition live submitted that the Court’s approach, which is centred on the notion of ‘fields covered past times European Union law’ in addition to precisely requires the existence of a virtual link betwixt relevant national measures in addition to European Union law, is ground-breaking yet compelling (section 3).

2. Facts in addition to outcome

In 2014, the Portuguese legislature introduced a temporary reduction inward the remuneration paid to the persons working inward the Portuguese populace administration, including judges. The Associação Sindical dos Juízes Portugueses (ASJP), acting on behalf of members of the Tribunal de Contas (Court of Auditors), decided to challenge the salary-reduction measures on the principal the world that that they would infringe ‘the regulation of judicial independence’ enshrined, non only inward the Portuguese Constitution, but also inward European Union law, inward the instant subparagraph of Article 19(1) TEU (‘Member States shall render remedies sufficient to ensure effective legal protection inward the fields covered past times Union law’) in addition to Article 47 of the European Union Charter of Fundamental Rights (Right to an effective remedy in addition to to a fair trial). This number was so later referred past times the Portuguese Supreme Administrative Court to the ECJ for a preliminary ruling.

What is especially noteworthy is that the ECJ focused solely on Article 19(1) TEU, which the Court described equally giving ‘concrete facial expression to the value of the dominion of police pull stated inward Article 2 TEU’ having previously recalled that mutual trust betwixt national courts ‘is based on the substitution premiss that Member States portion a set of mutual values on which the European Union is founded’. On the footing of a combined in addition to powerful reading of Articles 2, 4(3) in addition to 19(1) TEU, the Court underlines, to a greater extent than than e'er before, the duties of national courts nether the European Union Treaties in addition to inward particular, their duty to ensure ‘that inward the interpretation in addition to application of the Treaties the police pull is observed’ spell repeatedly observing that inward monastic enjoin for the European Union legal scheme to operate efficiently in addition to for individuals to proceed to do goodness from the regulation of the effective judicial protection of their European Union rights, it is essential that national courts stay independent.

Whilst the outcome of the instance itself is non surprising, it is the Court’s approach which is especially noteworthy. Before terminal that the ‘salary-reduction measures at number inward the principal proceedings cannot live considered to impair the independence of the members of the Tribunal de Contas’, the Court referred to a number of criteria which must guide national courts should they have got to review measures which are alleged to infringe judicial independence: Are the measures specific to judges? Are the measures justified past times an overriding ground of populace interest? Can they live considered to weaken their independence?

In the nowadays instance in addition to on the footing of these criteria, the Court convincingly concluded that ‘the instant subparagraph of Article 19(1) TEU must live interpreted equally pregnant that the regulation of judicial independence does non preclude full general salary-reduction measures, such equally those at number inward the principal proceedings, linked to requirements to eliminate an excessive budget deficit in addition to to an European Union fiscal assistance programme, from beingness applied to the members of the Tribunal de Contas’.

3. Scope of Application of the European Union Principle of Judicial Independence

The regulation that national courts must live independent is non novel inward European Union Law (see for instance Article 47 of the European Union Charter of Fundamental Rights ‘CFR’ hereinafter). What makes the Court’ ruling inward this instance especially important is the way the Court solely relies on Article 19(1) TEU having emphasised early inward its judgment that this provision may live relied upon inward national situations irrespective of whether the Member States are implementing European Union police pull inside the pregnant of Article 51(1) CFR.

This is a welcome but nonetheless ground-breaking interpretation. In a nutshell, this interpretation of Article 19(1) TEU gives the regulation of effective judicial protection a much wider reach of application that it would have got on the footing of Article 47 CFR which is bailiwick to Article 51(1) CFR. Article 19(1) TEU (added to the European Union Treaties via the Lisbon Treaty) may thence live ‘triggered’ inward a much broader set of national situations than Article 47 CFR in addition to inward areas where in that place is rattling picayune to no European Union acquis.

It may live worth briefly recalling at this phase that European Union Law cannot live relied upon inward every national legal procedure. For instance, inward ‘purely internal situations’, where no links alongside European Union police pull tin dismiss live established, the ECJ lacks jurisdiction. The reach of application of the European Union Charter is similarly limited past times its Article 51(1). While the ECJ did adopt a broad interpretation of the notion of ‘implementation’ of European Union police pull past times Member States, the Court has also established that where ‘a legal province of affairs does non come upward inside the reach of European Union law, the Court does non have got jurisdiction to dominion on it in addition to whatever provisions of the Charter relied upon cannot, of themselves, shape the footing for such jurisdiction’ (C-617/10, para 22).

The number of whether the salary reductions of the Portuguese judges constitutes a purely internal province of affairs is thence key. As in that place is no European Union dominion governing the remuneration of national judges, i may have got concluded that the ECJ lacked jurisdiction inward this case. The temporary reduction inward the total of populace sector remuneration was silent based on mandatory requirements imposed on the Portuguese Government past times the European Union to trim back the Portuguese State’s excessive budget deficit inward 2011 inward monastic enjoin to have fiscal assistance. To that extent in addition to equally inward the instance of Florescu (EU Charter applies to national measures adopted to see the weather attached to the fiscal assistance granted past times the European Union to a Member State), i could have got retorted that the salary-reduction measures had to trigger the application of European Union Law.

Had the Court gone downwards that route, Article 47 CFR would have got been available to review the compatibility of these measures alongside European Union law, including the regulation of judicial independence. Yet, the Court chose some other route without much explanation, or fifty-fifty no explanation at all, whereas the Article 47 CFR may also have got been applied inward the nowadays case. The fact that the Court relied solely on Article 19(1) TEU to protect judicial independence at Member State score may live understood equally an implicit reply to the increasing in addition to sustained attacks on national courts past times ruling parties inward countries such equally Poland (see department 4). By solely relying on Article 19(1), the Court has enabled natural in addition to legal persons to challenge a broader set of national measures. Indeed, the notion of ‘fields covered past times Union law’ mentioned inward Article 19(1) is broadly interpreted past times the Court in addition to should right away live understood equally beingness wider than the notion of ‘implementation’ set downwards inward Article 51(1) CFR.

The Court has gone thence beyond the limited functional necessity of national remedies sufficient to ensure the application of European Union police pull in addition to right away requires that Member States guarantee in addition to honour the substitution requirements of justice equally defined past times European Union police pull in addition to the ECJ itself, failing which they tin dismiss live sued straight on the footing of Article 19(1) TEU. To give an example, Member States must ensure that national courts tin dismiss exercise their ‘judicial functions wholly autonomously, without beingness bailiwick to whatever hierarchical constraint or subordinated to whatever other trunk in addition to without taking orders or instructions from whatever source whatsoever’. Any national measures which infringes this touchstone may right away live found incompatible alongside the regulation of judicial independence on the sole footing of Article 19(1).

What is yet to live determined is how much broader is the reach of Article 19(1) TEU in comparison to the reach of Article 47 CFR. In other words, how should the notion of fields covered past times European Union Law live understood compared to the notion of situations covered past times European Union Law (Fransson)?

At the rattling least, the nowadays ruling right away makes it possible for national litigants to rely on the regulation of judicial independence inward situations where the Charter may non live applicable past times relying on Article nineteen TEU. This novel approach way for illustration that inward cases such as Torralbo Marcos the ECJ would right away likely convey jurisdiction to review whether national measures are compatible alongside the regulation of effective judicial protection.

We would farther debate that the Court’s nowadays ruling must live understood equally making Article 19(1) TEU a relevant touchstone for reviewing national measures irrespective of whether the province of affairs is connected or non alongside European Union law. Article 19(1) TEU may from right away on live relied upon to challenge whatever national stair out which may undermine the independence of whatever national courtroom which may take away heed ‘questions concerning the application or interpretation of European Union law’ (para. 40). The key ‘test’ is thence whether the relevant national courtroom has jurisdiction (or not) over potential questions of European Union law. If this agreement is correct, the Court’s approach may live viewed equally ground-breaking equally most if non all national courts are, at to the lowest degree theoretically, inward this situation.

In establishing a full general obligation for Member States to guarantee in addition to protect judicial independence on the footing of a combined reading of Articles 2, 4(3) in addition to 19(1) TEU, irrespective of whether the province of affairs falls inside the reach of European Union law, the Court’s ruling is reminiscent of the 1925 USA judgment of Gitlow v New York, inward which the Supreme Court held that the Fourteenth Amendment to the USA Constitution had extended the achieve of for sure limitations on federal authorities authorisation set forth inward the First Amendment to the governments of the private states. In the nowadays case, i may debate that the ECJ has essentially made the European Union regulation of effective judicial protection (including the regulation of judicial independence) a federal touchstone of review which may live relied upon earlier national courts inward virtually whatever province of affairs where national measures target national judges who may take away heed actions based on European Union law.

4. H5N1 decisive shot across the Polish bows?

The ECJ, past times making Article 19(1) a stand-alone provision, has drastically increased the number of situations where litigants (for instance, a merchandise matrimony representing judges) may challenge national measures which undermine judicial independence. In doing so, the Court has answered the appeal from some scholars to ‘operationalise’ Article 2 TEU past times connecting it to other provisions of the TEU such equally Article 4(3) in addition to Article 19(1) TEU. In 2016, edifice upward on the scholarship of Professor Scheppele, Professor Kochenov in addition to i of the nowadays authors argued for instance for the combined work of these Treaty provisions so to enable the review of national breaches of the dominion of police pull happening beyond the areas covered past times the EU’s acquis:

[T] hither is silent no legal obstruction preventing the Commission from using the infringement physical care for to simultaneously investigate a set of diffuse and/or cumulative breaches of European Union values inward conjunction alongside European Union principles such equally the duty of loyalty, which is enshrined inward Article 4(3) TEU … or the requirement that Member States ‘shall render remedies sufficient to ensure effective legal protection inward the fields covered past times Union law’ (Article 19(1) TFEU). Article 258 TFEU does indeed utter of the necessity to ensure that the Member States fulfil whatever ‘obligation nether the Treaties’. This also way that in that place is no legal hurdle preventing the Commission from bundling numerous manifestly shaver violations to demonstrate a pattern which itself could total to a breach of Article 2 TEU.

By establishing, on the footing of Articles 2, 4(3) in addition to 19(1) TEU, that Member States must ensure that their national courts see ‘the requirements essential to effective judicial protection’, the Court has taken a most welcome opinion on the existential threat which Republic of Hungary in addition to Poland’s descent into authoritarianism poses for the EU’s interdependent in addition to interconnected legal system. H5N1 number of statements may live understood equally subliminal warnings to would-be autocrats inward these ii countries but also elsewhere:

‘The guarantee of independence, which is inherent inward the delineate of piece of work of adjudication … is required non only at European Union score equally regards the Judges of the Union in addition to the Advocates-General of the Court of Justice … but also at the score of the Member States equally regards national courts’;

‘The concept of independence presupposes, inward particular, that the trunk concerned exercises its judicial functions wholly autonomously, without beingness bailiwick to whatever hierarchical constraint or subordinated to whatever other trunk in addition to without taking orders or instructions from whatever source whatsoever …’;

‘Like the protection against removal from business office of the members of the trunk concerned … the receipt past times those members of a score of remuneration commensurate alongside the importance of the functions they deport out constitutes a guarantee essential to judicial independence’.

Even to a greater extent than important are the standards used past times the Court when reviewing the disputed measures. For the Court, the salary-reduction measures do non infringe the European Union regulation of judicial independence because they were a limited in addition to temporary reduction of remuneration to aid lower ‘the Portuguese State’s excessive budget deficit’ in addition to applied to diverse categories of populace sector employees. The disputed measures could non thence ‘be perceived equally beingness specifically adopted (our emphasis) inward honour of the members’ of the Portuguese Court of Auditors. This suggests, a contrario, that national measures which are (i) non justified past times overriding reasons of populace interest; (ii) are permanent in addition to full general inward nature; in addition to (iii) specifically target the judiciary or specific courts (e.g. a Supreme Court) could live considered past times the ECJ ‘to impair the independence’ of relevant courts in addition to their members in addition to equally such live held incompatible alongside the instant subparagraph of Article 19(1) TEU.

What should Polish, Hungarian or Romanaian judges (to bring upward but a few of the countries where ruling parties have got sought to capture the judiciary) faced alongside national measures which de facto undermine their authorisation in addition to independence live prepared to do inward practice? As would-be autocrats tend to methodically follow a Rule-of-Law dismantlement blueprint, a Rule-of-Law resistance pattern may live inward order, such equally the tentative in addition to brief i below:

(a) National judges should aim (via merchandise unions preferably to avoid retaliatory measures) to systematically challenge the compatibility of whatever national stair out which affects their independence via novel rules amending their status, damage of office, etc., on the footing of Article 19(1) TEU equally interpreted inward Case C-64/16;

(b) To systematically asking from national courts that they refer questions to the Court of Justice to enable it to dominion on whether the national measures at number inward each instance tin dismiss live consider the impair the independence of the members of the relevant national court(s);

(c) ‘Friends of the dominion of law’ should also aim to lodge complaints alongside the European Commission to inquire it to investigate infringements of Article 19(1) TEU;

(d) With honour to countries where the national judiciary may already live captured inward whole or inward constituent past times the ruling party, which may outcome inward requests for preliminary rulings beingness systematically denied fifty-fifty at the score of courts of lastly resort and/or national judgments offering interpretations of European Union police pull inward bad faith, the Commission should systematically initiate infringement actions (Case C-154/08 is noteworthy inward this respect).

EU institutions in addition to key actors must wake upward to the existential dangers raised past times increasing rule of police pull backsliding inside the EU. Following this welcome evolution inward Luxembourg, it is to live hoped that the Commission volition halt hesitating most whether to rely on Article 19(1) TEU inward its infringement actions (see this post past times Professor Taborowski for a critique of the Commission’s moving in addition to excessively cautious legal seat inward the context of the pending infringement instance against the Polish police pull on the arrangement of ordinary courts). One may only promise also that the Commission volition aim to think to a greater extent than strategically most dominion of police pull backsliding. It was disappointing inward this honour to see the Commission raising the inadmissibility of the asking for a preliminary ruling inward the nowadays instance or failing to initially think of requesting from the Court the imposition of a penalisation payment inward the Białowieża Forest infringement instance when the Polish authorities so defiantly refused to comply alongside a previous monastic enjoin of the Court.

The fourth dimension for dialogue has past. The fourth dimension for activity (and sanction) is now.

Photo credit : IPI

Barnard & Peers : chapter 9, chapter 10

Share this post