The European Union is beginning to take the principle of judicial independence seriously. Even though the Charter of Fundamental Rights of the European Union and the European Treaties mention this principle, it is only recently that the European institutions have started to consider it as a principle for which Member States are accountable.
It is well known that Article 47 of the Charter of Fundamental Rights of the European Union on the “Right to an effective remedy and to a fair trial” echoes Article 2 of the Treaty on the European Union (TEU), which considers "the rule of law and respect for human rights" as being among the values of the European Union. For its part, the new second paragraph of Article 19.1 of the TEU, introduced by the Treaty of Lisbon (2007), states that "Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law.”
European institutions, and in particular the European Commission, are of course also aware of the importance of respect for the rule of law both in the European Union and in Member States themselves. Since the first publication in 2013 of the EU Justice Scoreboard, the European Commission has defended the idea that "respect for the rule of law, including the independence of justice systems, has a significant impact on investment decisions and on attracting businesses.” [1]
More generally, over the last few years the European Commission, as guardian of the Treaties, has deployed a new strategy to strengthen the rule of law in the European Union under the leadership of its first Vice-President, Frans Timmermans. In April 2019, it adopted a communication entitled Further strengthening the Rule of Law within the Union-State of play and possible next steps, which refers to judicial independence as an essential element of the rule of law. It states: "The rule of law includes, among others, principles such as legality, implying a transparent, accountable, democratic and pluralistic process for enacting laws; legal certainty; prohibiting the arbitrary exercise of executive power; effective judicial protection by independent and impartial courts, effective judicial review including respect for fundamental rights; separation of powers; and equality before the law." [2] The Commission then described the existing tools, both political (art. 7 TEU) and jurisdictional (art. 267 and Article 258 TFEU) that may be used to strengthen the rule of law in Member States. In the same vein, on 17 July 2019, the Commission published a document entitled Strengthening the rule of law within the Union- A blueprint for action, in which it repeated that "the guarantee for judicial independence is a legal obligation at the core of the rule of law” [3].
In addition, the EU Justice Scoreboard has included for the first time in its 2019 edition a chapter entitled Guaranteeing judicial independence. While it is true that in all its reports the Commission refers to judicial independence as a criterion for measuring the quality of justice in the various Member States, this is the first time that the Commission has mentioned actions taken at European level to ensure it as a key element of justice reforms carried out in 2018. [4]
It is also appropriate to mention, in the same context, the European Commission’s 2018 proposal for a Regulation of the European Parliament and of the Council on the protection of the Union's budget in case of generalised deficiencies as regards the rule of law in the Member States, which seeks to make access to European funds conditional on compliance with the basic rule of law. In its proposal, the Commission recounts the components of the rule of law, including "effective judicial protection by independent courts.” [5]
Finally, as part of the European Commission's strategy, we cannot fail to mention its proposal in December 2017 for a Council decision on the determination of a clear risk of a serious breach by the Republic of Poland of the rule of law [6], based on Article 7.1 TEU.
In September 2018, for its part, the European Parliament adopted a proposal calling on the Council to determine, pursuant to Article 7(1) of the Treaty on European Union, the existence of a clear risk of a serious breach by Hungary of the values on which the Union is founded. [7]
As regards the Court of Justice of the European Union (CJEU), it is well known that it relies on the criterion of independence to determine whether an organ can be regarded as “a court of a tribunal” for the purposes of Article 267 TFEU, that is to say, in the case of a preliminary ruling, qualified as the "cornerstone of the judicial system" of the European Union by the Court of Justice. This remedy is conceived as a mechanism for cooperation between national judges and the Court of Justice that allows national courts to refer to the CJEU where they have doubts about the application of European Law in order to ensure its uniform application in all Member States. However, some recent cases, such as Associaçao Sindical dos Juizes Portugeses [8] of February 2018, LM [9] or the cases European Commission v. Republic of Poland [10] of June and November 2019 revealed the growing interest of the Court of Justice of the European Union about the principle of judicial independence (as a key element of the rule of law), beyond its application in the context of Article 267 TFEU.
Although it is true that Member States themselves determine how they organize their legal systems (principle of procedural autonomy), they must comply with the obligations imposed by EU law. It is therefore an exclusive competence but so far framed by the principles of equivalence and effectiveness. [11] However, according to the most recent judgments mentioned before, the Court of Justice adds a further obligation for Member States, based on Article 19 TEU and directly related to the right to effective judicial protection and judicial independence.
In order to be able to assess whether a Member State's judicial system conforms to the principle of judicial independence, the Court relies on the second paragraph of Article 19.1 TEU and gives it a new potential. The Luxembourg Court qualifies that article as giving “concrete expression to the value of the rule of law stated in Article 2 TEU” and in particular the value of the rule of law that all Member States must share. Therefore, under the principles of mutual trust and of sincere cooperation set out in Article 4.3 of the TEU, which also apply to national courts, Member States must ensure that respect is given to the principle of effective judicial protection and judicial independence in all "areas covered by EU law" simply because national courts are part of the European judicial system through, in particular, the preliminary ruling procedure.
On that basis, the Court of Justice of the European Union has decided that a reduction in the remuneration of the Portuguese judges of the Court of Auditors applied temporarily and equally to the entire public sector does not infringe the principle of independence. The Association of Portuguese judges considered that a reduction of their remuneration could threaten judicial independence in the knowledge that the Court considered previously that a level of remuneration in line with the importance of the roles judges constituted an inherent guarantee of judicial independence. On the contrary, the Court recognized that the reduction in the retirement age of the judges on the Polish Supreme Court (without transitional measures) violated the principles of judicial independence and irremovability of judges. Therefore, it constitutes a breach of the rule of law, knowing further that the measure actually relates to one third of the judges of that court.
The new approach adopted by the European Union in order to ensure the rule of law in Member States is undoubtedly good news, for the benefit of the Union as a whole, of its economy and citizens, who must continue to be the beneficiaries of the European project. Let us hope that the new European Commission keeps following this path.
Notes
[1] Communication from the Commission to the European Parliament, the Council, the European Central Bank, the European Economic and Social Committee and the Committee of the Regions – The 2019 EU Justice Scoreboard, COM (2019) 198 final of 26 April 2019.
[2] Communication from the Commission to the European Parliament, the European Council and the Council, Further strengthening the Rule of Law within the Union-State of play and possible next steps, COM (163) final of 3 April 2019, p 2.
[3] Communication from the Commission to the European Parliament, the European Council, the Council, the European Economic and Social Committee and the Committee of the Regions, Strengthening the rule of law within the Union- A blueprint for action, COM (2019) 343 final, 17 July 2019, p 5.
[4] Communication from the Commission to the European Parliament, the Council, the European Central Bank, the European Economic and Social Committee and the Committee of the Regions The 2019 EU Justice Scoreboard, COM (2019) 198 final of 26 April 2019
[5] Proposal for a Regulation of the European Parliament and of the Council on the protection of the Union's budget in case of generalised deficiencies as regards the rule of law in the Member States, COM (2018) 324 final.
[6] Proposal for a Council Decision on the determination of a clear risk of a serious breach by the Republic of Poland of the rule of law, COM (2017) 835 final on 20 December 2017.
[7] European Parliament resolution of 12 September 2018 on a proposal calling on the Council to determine, pursuant to Article 7(1) of the Treaty on European Union, the existence of a clear risk of a serious breach by Hungary of the values on which the Union is founded. (2017/2131(INL))
[8] Judgement of 27 February 2018 (Grand Chamber), Associação Sindical dos Juízes Portugueses, C-64/16, EU:C:2018:117.
[9] Judgement of 25 July 2018 (Grand Chamber), LM, C-216/18 PPU, EU:C:2018:586.
[10] Judgement 24 June 2019 (Grand Chamber), European Commission v. Republic of Poland, C-619/18, EU:C:2019:531 and Judgement of 5 November 2019 (Grand Chamber), European Commission v. Republic of Poland, C-192/18, EU: C:2019:924.
[11] According to the Court, the principles of equivalence and effectiveness postulate that "the detailed procedural rules governing actions for safeguarding an individual’s rights under Community law must be no less favourably than those governing similar domestic actions (principle of equivalence) and must not render practically impossible or excessively difficult the exercise of rights conferred by Community law (principle of effectiveness) " Judgment of the Court (Grand Chamber) of 13 March 2007, Unibet (London) Ltd And Unibet (International) Ltd Against Justitiekanslern, C-432/05, EU:C:2007:163, paragraph 43.
About the Author
Marie-José Garot is an Associate Professor and Vice Dean of Faculty at IE Law School. Marie-José is an expert in European Law; she has taught and carried out intense research projects at prestigious universities like the European University Institute of Florence, the European Centre for Public Law (Athens) and the Carlos III University in Madrid, amongst others. She has published books and articles on the European integration. Professor Garot is director of the Center of European Studies of IE University, whose focus and goal is to promote the European idealism inside and outside of IE.
