Readers of Verfassungsblog will be well aware of the latest developments in the ongoing rule of law crisis; most recently, the CJEU sanctioned Poland with daily penalty payments for failing to suspend the operation of its Supreme Court’s disciplinary chamber. The disciplinary chamber’s interference with the independence of judges can have a profound impact on the preliminary reference mechanism as a means for individuals to seek the review of EU law. This must be addressed to safeguard the right to an effective legal remedy under Article 47 CFREU.
Judicial independence as a prerequisite for the EU’s complete system of legal remedies
In Commission v Poland (Régime disciplinaire des juges), the CJEU found that the disciplinary chamber of the Polish Supreme Court has the power to sanction judges for making preliminary references under Article 267 TFEU. The Court held this to be incompatible with EU law, because national judges could be discouraged from making preliminary references which would, in turn, undermine the functioning of the EU’s multi-level judicial system.
This is a well-established and well-discussed issue that does not need further introduction here; it is not the purpose of this contribution to rehearse what has been discussed more eloquently elsewhere. Rather, the aim of this contribution is to draw attention to another implication of disciplinary regimes that discourage judges from making preliminary references. Preliminary references under Article 267 TFEU are not limited to reviewing national legislation and measures, after all. They also provide individuals with a means to seek the review of generally applicable, non‑implementing measures of EU law but are unable to obtain standing under Article 263 TFEU. Under the Plaumann-test, individuals seeking review of such acts must show that they are directly and individually concerned by the act in question. The latter requirement will only be met in exceptional cases, largely barring individuals from attaining direct review by the European courts. Individuals are expected to seek indirect review through the national courts instead. The importance of the preliminary reference mechanism as a route to review for individuals was highlighted by the CJEU in UPA, when declining to soften the standing requirements for non-privileged applicants in direct actions under Article 263 TFEU. Paragraphs 40 and 41 of the judgment read, in updated and abbreviated form:
By Article 263 and Article 277 TFEU, on the one hand, and by Article 267, on the other, the Treaty has established a complete system of legal remedies and procedures designed to ensure judicial review of the legality of acts of the institutions, and has entrusted such review to the Community Courts … where natural or legal persons cannot, by reason of the conditions for admissibility laid down in Article 263(4), directly challenge Community measures of general application, they are able, depending on the case, … to do so before the national courts and ask them … to make a reference to the Court of Justice for a preliminary ruling on validity.
Thus it is for the Member States to establish a system of legal remedies and procedures which ensure respect for the right to effective judicial protection.
These two paragraphs contain the CJEU’s main justification for maintaining the Plaumann-test and the strict limits that it imposes on the standing of individuals before the European Courts to directly challenge EU law. The Court maintained, in essence, that individuals who wish to challenge EU legal acts that are not addressed to them specifically should do so via their domestic courts, who could then make a preliminary reference to the CJEU if necessary. This ensures an even distribution of labour across the EU’s multi-level judiciary and that judicial proceedings take place as close to the citizen as possible. Yet critics have pointed out that it creates gaps of enforcement; legality review by the CJEU depends on the willingness of national courts to make preliminary references and regulatory acts that do not entail implementing measures may not be challengeable at all. These issues have been addressed more eloquently elsewhere and will not be revisited here. The point is merely to highlight the importance that the CJEU attaches to the preliminary reference procedure, which was recently referred to as ‘the keystone of the judicial system established by the Treaties’ in Commission v Poland (Régime disciplinaire des juges).
The Court’s judgement also emphasises that this keystone is fundamentally dependent on judicial independence. Judges in the Member States must not be sanctioned for referring questions to the CJEU for preliminary review; the mere prospect of such sanctions threatens to weaken the uniform application of EU law with which the national courts are entrusted. They would be hindered in exercising their task of ensuring the compatibility of national law with EU law otherwise. However, issues of judicial independence that impact the preliminary reference procedure also affect seeking the review of EU law. Those wishing to challenge non-implementing acts of general application are dependent on obtaining preliminary references about the validity of the act in question. Yet the lynchpin of this system is the independent national judge; if they are discouraged, or even prohibited, from making preliminary references, the route of litigation envisioned by the CJEU in UPA is blocked. The question is how this shortcoming can be remedied to safeguard the right to an effective legal remedy under Article 47 CFREU of individuals affected by the obstruction of the preliminary reference mechanism?
Reviewing the Plaumann-test: Some revisions required?
This short contribution can impossibly provide a satisfactory answer to this question. It can, however, make the following preliminary observations. Foremost, it is critical to distinguish two types of situations in which this issue may arise. Firstly, the situation where the European Council has determined, under Article 7 TEU, that there exists ‘a serious and persistent breach’ by a Member State of the rule of law due to a systemic obstruction of the preliminary reference procedure. The understanding that individuals should challenge generally applicable measures of EU law primarily through preliminary references would become generally unsustainable regarding issues that arise in the jurisdiction of the affected courts. This immediately raises the question of the response that should be taken to protect the right to an effective legal remedy of individuals within that jurisdiction. It is tempting to argue that the CJEU should introduce an exception to the Plaumann-test, but this would almost certainly raise follow-up problems. Should the Court introduce a general exemption that applies to any case that falls within the jurisdiction of the courts of the Member State in question? Or would a narrower test that takes individual circumstances into account be preferable, especially in order to prevent forum shopping and flooding the CJEU with cases?
Secondly, and more realistically, the situation where no determination has been made by the European Council, but where deficiencies in judicial independence nevertheless preclude individual litigants from obtaining a preliminary reference. There is, again, an argument to be made for an exemption from the Plaumann-test, although only an individual one is warranted here. Applicants would have to show that a preliminary reference would have been needed in their case, but that it would not have been made by the competent national court due to issues of judicial independence. Whilst compelling, this raises the follow-up questions of the standard that the CJEU should adopt and how it should verify the applicants’ claims. Should the Court adapt either of the existing standards of review under Article 267 TFEU or Article 19(1) TEU in conjunction with 47 CFREU, or should it develop a new test? What evidence would the parties have to provide, how would they obtain it, and how should the CJEU review this?
It is also noteworthy that actions in this regard would have to be brought before the General Court, whose involvement with rule of law backsliding has been limited so far. Under Article 256(1) TFEU in conjunction with Article 51 of the Court’s Statute, the GC is competent as a court of first instance on direct actions brought by individuals. Depending on the evidentiary standard adopted, the GC may be in a better position to establish whether a specific applicant could not have obtained a preliminary reference due to issues of judicial independence. The GC has a higher capacity and regularly deals with complex cases involving the review of different national rules. Its involvement would lighten the workload of the Court of Justice, which would only review points of law on appeal.
The aim of this contribution has been to highlight the implication that rule of law backsliding, in the form of interferences with judicial independence, could have for individuals seeking review of the validity of generally applicable non-implementing acts of EU law. The obstruction of the preliminary review procedure emphasises the profound and far-reaching impact that such backsliding has on the functioning of the EU’s legal and judicial system; the carefully balanced interaction between the different judicial levels is disrupted when national courts are discouraged from making preliminary references. This undermines the uniform interpretation of EU law and hinders the CJEU in reviewing the lawfulness of EU law. The instinctive response may be renewed calls for the abolition of the Plaumann-test. It is questionable whether such a sledgehammer solution would be necessary, however. Exceptions to Plaumann would be more suitable because they do not cast general doubt on the functioning of the EU’s entire multi-level judiciary or the independence of all judges in a given Member State. Rather, the Plaumann-test would be modified only insofar as necessary to protect the functioning of the EU’s ‘complete system of legal remedies’ and the right to an effective legal remedy of individuals.
It is impossible to predict whether the rule of law crisis will indeed cause the CJEU to reconsider Plaumann. As one participant at the 29th FIDE Congress pointed out, the test has stood for sixty years, and the Court has not shown any intention to reconsider it so far.