The Sanctity of Preliminary References

A national supreme court must not declare a request for a preliminary ruling by a lower court unlawful on the ground that the referred questions are irrelevant and unnecessary for the original case. This has been held by the Court of Justice of the EU (CJEU) in its important decision C-564/19 IS. In addition, the CJEU held that EU law also precludes disciplinary proceedings from being brought against national judges on the ground that they made a reference for a preliminary ruling. The case also raises important questions to what extent preliminary rulings can be effective against rule-of-law decline and make up for political EU institutions’ failure to use adequate EU tools of supervision and enforcement.

(For earlier posts on this case, see here, here and here.)

The facts of the case

The IS case is about a Hungarian criminal proceeding against a Swedish national which has been suspended by Judge Vasvári of the Pest Central District Court. The judge filed three questions with the CJEU, one related to the quality of translations and interpretations in criminal proceedings, and two in connection with judicial independence. The national judge essentially asked whether various structural changes and practices of the judiciary, as well as the inadequante remuneration of judges when compared with the salaries of prosecutors, violated EU law on judicial independence.

The Prosecutor General initiated a review of the order for the preliminary reference in front of the Hungarian Supreme Court (Kúria), arguing that the first question is irrelevant since the quality of translation did not come up in the case at hand, while the second and third questions are not about the interpretation of EU law, are too remote from the case, and do not influence its outcome.

The Kúria agreed with the motion without reservations and determined that the challenged decision was illegal. A determination of illegality has no effect on the preliminary reference in question, but for the future it restricts lower courts’ right (and sometimes obligation) to turn to the CJEU. As a consequence of the declaration of illegality, the Acting President of the Metropolitan Court had initiated a disciplinary proceeding against the judge referring the case to the CJEU, which he later withdrew. Judge Vasvári added two more questions to the original reference and asked whether the declaration of illegality of the original preliminary reference and the disciplinary proceeding were compatible with EU law.

The judgment

On 23 November 2021 the Grand Chamber of the CJEU delivered its judgment. The CJEU made some important statements with regard to the first question on criminal procedural law: EU law requires Member States to take concrete measures to ensure that the quality of the interpretation and translations in criminal processes is of such a quality that fair trials are guaranteed, in particular that suspects can understand the accusation against them and that they are able to exercise their right of defence. Should the domestic court not be able to verify whether the person concerned was informed of the accusation in a language they understand, either because the interpretation was inadequate or because its quality cannot be determined, this precludes the suspect from being tried in absentia.

But let us focus on the judicial independence related questions now.

With regard to the Kúria decision, the CJEU reiterated that domestic courts have a wide discretion to make use of the preliminary reference mechanism. This does not mean that an appeal against a preliminary reference would per se be contrary to EU law (see C-210/06 Cartesio). However, the Kúria’s reasoning that the questions were not relevant and necessary for the resolution of the dispute in the original criminal proceedings, came very close to the determination of admissibility, which is an issue to be decided by the CJEU exclusively. But the CJEU went further. The declaration might have a chilling effect on judges in any future cases, which restricts the effective judicial protection of the rights which individuals enjoy as per EU law. In sum, the illegality decision by the Kúria undermined the effectiveness of cooperation between courts at the various levels of EU governance, and the unity and effectiveness of EU law. As a consequence, Judge Vasvári must disregard the illegality decision by the Kúria, without waiting for any authority to withdraw or invalidate that decision.

With regard to the disciplinary proceeding against Judge Vasvári, the CJEU distiniguished the IS case from C-558/18 and C-563/18, Miasto Łowicz and Prokurator Generalny, where a similar question was held to be inadmissible. Unlike in Miasto Łowicz, in the current case the referring judge was faced with a procedural obstacle, arising from the application of a national piece of law against him, which he must first address before he could make a decision as to whether to go on with the main proceedings or not. Therefore the question was declared to be admissible. Coming to the substance of the issue, the Court reiterated its earlier case-law, according to which launching disciplinary proceedings against a national judge for making a reference for a preliminary ruling contradicts EU law. The disciplinary procedure did not even have to run is full course: “(T)he mere prospect of being the subject of disciplinary proceedings” is undermining the effective use of Article 267 TFEU. (para. 90) Therefore, the CJEU held that EU law precludes disciplinary proceedings from being brought against a judge on the ground that he filed a request for a preliminary ruling to the CJEU.

The referring court’s original questions in relation to the overall health status of the Hungarian judiciary were declared inadmissible by the CJEU, as requested by both the Hungarian government and the Commission, on the ground that there was not a strong enough connecting factor between the case pending before it and the interpretation of EU law it asked for.

Strong judgment, questionable effects

The Court can only be welcomed for making it abundantly clear that the harassment of judges and interference with the preliminary reference procedure are precluded by EU law. The decision should also be praised for finally integrating the concept of chilling effect into the reasoning, as Professor Laurent Pech has suggested. Even though the Court did not use that exact term, it recognized that the shadow of a potential disciplinary proceeding may unduly influence judgments to refer cases in the first place, which could lead to self-censorship on the side of the referring judge and any other judge in the country, irrespective of the outcome of the disciplinary case, i.e. whether the disciplinary procedure was ultimately suspended, or whether the judge was exonerated of liability or not. Similarly, a declaration of illegality of preliminary references, even when no further consequences are attached to such a ruling, might have the same chilling effect.

Despite the firm holding of the CJEU judgment, there are still threats to Hungarian judges and their right to turn to the CJEU. The CJEU decision could not nullify the Kúria’s decision holding Judge Vasvári’s questions illegal. The CJEU with ease and, one may add, a pinch of naïveté reiterated that in line with the principle of primacy, national provisions, which prevent the implementation of Article 267 TFEU “must be set aside without the court concerned having to request or await the prior setting aside of that provision of national law by legislative or other constitutional means”. (para. 80) This is indeed how EU law should work in countries based on the rule of law. But it is far from clear whether judges in a country with a poor rule of law record will dare to act as required by EU law.

We can say little about the general status of judicial independence in Hungary based on the IS judgment, since the related questions were declared inadmissible. True, a preliminary ruling is not the procedure for determining a violation of the Treaties and the systemic problem of judicial capture. Instead, European institutions have various tools to react forcefully to counter harassment of national judiciaries. But, save for a badly constructed infringement procedure 9 years ago, no measures, or certainly no dissuasive ones going beyond questioning, naming and shaming, were taken by the Commission and the Council to counter the growing number of violations of judicial independence in Hungary. In this sense, the questions referred to the CJEU in IS in relation to the overall state of judicial independence should be seen as a last cry on the side of judges to ask for help in restoring their independence. But the procedural rules did not allow the CJEU to enter the matter, which it would most certainly have addressed, had the same questions come from the Commission or another Member State in the form of an infringement procedure.

Even if the IS judgment is silent on the matter, the document triggering an Article 7(1) TEU procedure against Hungary, the Commission’s assessment in the form of the Annual Rule of Law Report, NGOs and think tanks draw a devastating picture of the Hungarian state of the rule of law and related values, some concluding that Hungary is not a free country and not a democracy any more. Also, the questions that were decided by the Court in IS prove that even thematising the issue of judicial independence results in harsh and, from the viewpoint of EU law, illegal retaliation. In this light it is highly questionable whether the standard developed for functioning constitutional democracies will work in Hungary, and whether Hungarian judges in the future will indeed ask from the CJEU whichever question they may consider necessary for deciding a case pending before them.

Compliance with the Court judgment is particularly unlikely in light of the immediate reaction of the Kúria to the judgment delivered in IS. In a press release issued on the same date the judgment in IS was delivered, the Kúria emphasized – in clear conflict with the cited paragraph 80 of the judgment and the principle of primacy – that its initial declaration of illegality is still good law, it is “final, and its interpretation of the law is binding”, until the Kúria decides otherwise. And we now know that the Kúria has no intention of backing down in light of the CJEU decision. The Kúria promised to study the IS judgment in light of the Hungarian Constitutional Court decision 2/2019. (III. 5.) – a ruling, which in the words of Viktor Z. Kazai and Ágnes Kovács, echoing the interpretation by Professor Gábor Halmai, “created a legal basis for not complying with EU legislation (…) by using, actually abusing, the concept of constitutional identity.” In fact, the Kúria foresees an assessment of the CJEU judgment in light of the Hungarian constitution at the same time as the Hungarian Constitutional Court is reviewing a motion filed by the Justice Minister contending that implementation of another CJEU judgment – in the asylum law related Case C-808/18 – would contradict the Fundamental Law.

Should a judge still be brave enough to turn to the CJEU in the future, declarations of illegality of their references are not the only adverse consequences they may face. In August 2018, a junior judge, Judge Gabriella Szabó requested a preliminary ruling from the Court and as a consequence, the Budapest Central Court president, the one who initiated the disciplinary proceedings against Judge Vasvári, declared Judge Szabó to be unsuitable for a judicial office, and her appointment as a judge was therefore not finalised.

All in all, the risks for any Hungarian judge may be too high to follow the IS ruling and use Article 267 TFEU to its full potential. However strongly the CJEU formulates its stance on the importance of judicial cooperation, for CJEU judgments to work, the targeted Member State must adhere to some very minimum elements of the rule of law and EU law, such as respect for the CJEU’s judgments, or the principle of primacy. But this is a much broader challenge, and without all the institutions playing their part in rule of law enforcement, including the Commission making much better use of infringement proceedings or the Conditionality Regulation – paraphrasing Professor Tímea Drinóczi – “the CJEU alone cannot save us”.