With the Associação Sindical dos Juízes Portugueses judgment, the Court of Justice of the European Union (CJEU) lately reacted to the current crisis of rule of law in certain EU Member States. On the basis of Article 19(1) TEU, it declares itself competent to evaluate the guarantee of independence of those national judges who apply and interpret EU law. While the case itself was concerned with temporary cuts to the remuneration of Portuguese judges, the ruling has far-reaching consequences for the Commission proceedings against Poland. In light of the ruling, the European Commission does not have to restrict itself to the slightly modified “Hungarian scenario” hitherto preferred by it. It may instead once again analyse the scope of charges with regard to the Common Courts System Act (CCS Act), and may even lodge a new complaint concerning i.a. the Act on the Supreme Court.
(1) It is remarkable how quickly and flexibly the CJEU has reacted in its legal decisions to the crisis of rule of law in certain EU Member States. Above all, it has built up in its case law a catalogue of elements constituting the rule of law within the meaning of Article 2 TEU, such as the principle of separation of powers (C-477/16 Kovalkovas), the principle of effective judicial protection (C-72/15 Rosneft), and effective application of EU law (C-441/17 R Commission v. Poland). Following this last order of the CJEU, the CJEU apparently does not hesitate to issue courageous decisions securing the effectiveness of EU law. For instance, by way of interpretation of Article 279 TFEU, the CJEU demanded penalty payments for logging operations in Poland’s Puszcza Białowieska protected forest that violated an earlier ruling.
The Associação Sindical dos Juízes Portugueses decision is undoubtedly just as far-reaching and may have a precedent-setting character of constitutional importance for the European Union and EU Member States. For the first time the CJEU stated that the principle of effective judicial protection enshrined in Article 19(1) TEU enables – under certain conditions – a review of national legislation concerning the independence of judges guaranteed also in Article 47 of the Charter of Fundamental Rights of the EU (ChFR). This type of control will be possible if national courts can interpret or apply EU law.
(2) In Associação Sindical dos Juízes Portugueses, the CJEU interpreted this provision quite broadly. The national court (Tribunal de Contas), whose judges challenged the cuts in remuneration, has the competency to decide cases concerning funds coming from the EU, as well as issues related to public expenditure or the public debt. The fact that the national court had the competency to potentially apply or interpret EU law was sufficient to accept that the guarantees concerning its independence are covered by EU law according to Article 19(1) TEU. For the CJEU to be competent to evaluate the independence of a national court, an EU element in its sources of law (e.g. a directive or one of the freedoms of the EU internal market) is thus not necessary. The mere possibility of applying EU law already triggers Article 19(1) TEU. In particular, however, the CJEU did not accept the claimants' reasoning that the political origins of the remuneration cut in the EU excessive budget deficit procedure and its financial assistance programme for Portugal were important in this regard.
(3) The judgement Associação Sindical dos Juízes Portugueses thus shows that the CJEU has an express Treaty competence to evaluate judicial systems in EU Member States, while the courts’ structure of the Member States should be prepared ‘in advance’ for a situation where they are entrusted to decide also cases concerning EU law. This assumes that the courts meet the standard of independence required by EU law (Article 19(1) TEU/Art. 47 ChFR). In the opinion of the CJEU, Article 19 TEU gives a concrete expression to the value of the rule of law stated in Article 2 TEU and secures the mutual trust between the courts of the Member States. The CJEU also emphasized the key role played by national courts for the EU system of legal protection, application and respect for EU law, as well as for the protection of individuals (i.e. inter alios, natural persons and legal entities). Since individuals have the right to challenge each act concerning the application of EU law, Member States have the task, pursuant to the principle of loyalty (Article 4(3) TEU), to establish a system of remedies and procedures to ensure effective judicial protection. In “areas covered by EU law”, in the meaning of Art. 19 (1) TEU, national courts must therefore meet EU standards of independence. It seems to follow from Associação Sindical dos Juízes Portugueses that the CJEU will evaluate differently the scope of application of Art. 19(1) TEU and Art. 51 ChFR. This is because Art. 19(1) TEU covers also situations in which national courts may potentially apply EU law, whereas the ChFR pertains only to cases of actual application of EU law by the Member States.
(4) The judgment Associação Sindical dos Juízes Portugueses opens new prospects for the European Commission in its fight for the rule of law in Poland with regard to infringement proceedings (Art. 258 TFEU). This judgment may induce the Commission above all to once again consider the scope of charges which the Commission intends to bring against Poland in relation to the Act on Common Courts (ACC). As I have written previously, the brief press release of the EC from 20.12.2017 reveals the charges which the Commission intends to bring against Poland in the proceedings for a declaration of an infringement of the obligations following from the Treaties. First, the Commission alleges a breach of the ban on gender discrimination in the case of retirement age of judges. Second, it sees a breach of the independence of the national courts (Art. 19 (1) TEU/Art. 47 ChFR), because the Minister of Justice can decide at his own discretion on the continued holding of a position by a judge who has reached retirement age. With regard to these charges, the EU element (and the possibility of an evaluation of independence according to EU standards) is found above all in Directive 2006/54/EC on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation.
(5) In light of earlier press releases, at the prejudicial stage of the Art. 258 TFEU proceedings, the Commission, pointing to a breach of Art. 19 (1) TEU/Art. 47 ChFR, also voiced reservations concerning the provisions of the ACC which allow the Minister of Justice to appoint and remove, at his discretion, presidents and vice presidents of courts. In the release of 12.09.2017 in relation to the issue of the reasoned opinion the EC stated that the “discretionary power to dismiss and appoint Court Presidents allows the Minister of Justice to exert influence over these judges when they are adjudicating cases involving the application of EU law”. However, in the release issued in relation to the initiation of proceedings before the CJEU (20.12.2017), the EC dropped the reference to this national regulation without giving reasons. Under the hitherto existing case law of the CJEU, it would have indeed been difficult to show the precise EU element, without which an evaluation would not have been possible. Unlike in the other charges which relate directly to specific secondary legal acts (directives), the Commission can only base its charge on the general role of the national courts in the EU legal system.
The judgment Associação Sindical dos Juízes Portugueses opens up a new perspective in this regard as the CJEU accepted that it is precisely the general role of the national courts in the EU legal system, related to the application and interpretation of EU law, especially as part of the preliminary ruling procedure in cooperation with the CJEU, which constitutes sufficient justification to examine the case as regards fulfillment of the requirement of independence following from Art. 19 (1) TEU/Art. 47 ChFR. Although in itself the appointment and removal of court presidents as regulated by the ACC falls within the scope of the exclusive competence of Member States, this aspect of the ACC can now also be examined under EU legal standards.
(6) The judgment Associação Sindical dos Juízes Portugueses may also constitute an opportunity for the Commission to approach – in proceedings under Art. 258 TFEU – the relation between judiciary and executive powers in a more comprehensive way. The hitherto existing position of the Commission may be evaluated as fragmentary, as opposed to the evaluation presented by the Venice Commission which in its opinion of 11.12.2017 argued that the competencies of the Minister of Justice should not be analysed independently from each other, but in their systematic context (taking into account other ministerial powers with regard to judges and court presidents). In particular, the merger of the offices of Minister of Justice and Prosecutor General raised concern. The conflation of functions and interests, as well as increasing powers in both creates a serious risk for the independence of the judicial system in Poland, according to the Venice Commission. In light of the recent ECHR decision in the case Baka v. Hungary, the removal of a court president from his function may indicate a critical threat to the independence of the judicial powers. Showing this problem in a broader context could strengthen the argumentation of the European Commission in proceedings under Art. 258 TFEU.
(7) Moreover, the judgment Associação Sindical dos Juízes Portugueses may allow the Commission to carry out infringement proceedings under Art. 258 TFEU with regard to a broader range of charges covered by the Recommendations of the Commission regarding the Rule of Law in Poland and by the motion of the Commission filed under Art. 7 (1) TEU, such as the new rules concerning the National Council of the Judiciary. In particular, the case Associação Sindical dos Juízes Portugueses enables proceedings with regard to the Act on the Supreme Court which will soon enter into force. Pursuant to that act, the retirement age of Supreme Court (SC) judges was reduced from 70 to 65 years, which will affect about forty percent of the present SC judges. In the opinion of the Commission, this will give rise to a problem in particular in the context of the principle of the irremovability of judges. What is more, the possibility of a SC judge continuing to hold his/her position will be dependent upon a discretionary decision of the President of the Republic of Poland. He may twice consent to the continued performance of the function, each time for 3 years. This gives rise to a similar problem concerning the independence of courts in light of Art. 19 (1) TEU and Art. 47 ChFR EU, as with regard to judges of common courts, which problem the EC has already made the subject of proceedings under Art. 258 TFEU. However, in the case of SC judges so far there has been no possibility to introduce the EU element following from Directive 2006/54/EC like in the case of judges of common courts as the SC Act does not discriminate with the retirement age as regards gender since female SC judges can voluntarily retire at 60 years of age. Also, basing the charge on a breach of the ban on discrimination for reason of age, as in the Hungarian case (C-288/12), could be difficult. To recall, Hungary removed the infringement identified by the CJEU concerning the lowering of the retirement age of judges from 70 to 62 years, increasing this age to 65, which the Commission no longer questioned. The judgment Associação Sindical dos Juízes Portugueses opens up for the Commission new possibilities to evaluate the principles of effective judicial protection, independence of judges and their irremovability from office beyond discrimination based on gender or age.
(8) What is more, the experience with the Hungarian cases also showed that the departure of judges from the profession and performance of the functions in view of retirement age gives rise to practically irreversible effects regarding a return to the profession and the functions performed. In the case of the Polish SC, inter alia, the First President of the SC will in this way lose her function, as well as many experienced judges. Drawing conclusions from the Hungarian case, for the effectiveness of a possible intervention by the Commission in the context of the SC Act (but also on the Common Courts Act) of key importance will be whether the Commission files a motion for interim measures by way of a suspension of application of the statutory regulations until such time as the case has been decided on by the CJEU. This is because with regard to Hungary the effectiveness of the judgment of the CJEU declaring an infringement, though issued in an accelerated procedure, proved negligible.
(9) Taking into account the potentially weak effectiveness of the procedure under Art. 7 TEU, the Commission could successfully avail itself of Art. 258 TFEU, which leaves no room for political discretion. The Commission’s press release of 20.12.2017 showed that the Commission did not intend, at that point, to initiate courageous and precedent-setting proceedings under Art. 258 TFEU before the CJEU in the fight for the rule of law. But now in Associação Sindical dos Juízes Portugueses, the CJEU opened the door for the Commission to take this new and more effective path. The clock is ticking, in particular regarding the SC judges. It depends only on the Commission whether it will allow that the values expressed in Art. 2 TEU be merely set down on paper, or whether it will attempt to convince the CJEU that these values have – in the case of Poland – been breached. The green light shown by the CJEU could not be greener.
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All the best, Max Steinbeis