Wholly Autonomously

Every two years, some two and a half thousand German jurists meet in a congress centre in different German cities to discuss and vote on where and how and whether the law of the land is in need of improvement. This format called Deutscher Juristentag (DJT) has existed even longer than the German state, since 1860, and is a token of the peculiar state and status awareness every jurist in Germany gets invested with the moment she passes her Große Juristische Staatsprüfung. Even as a lawyer in the private sector, one remains an Organ der Rechtspflege (organ of the administration of justice) and is expected to take care of not only one’s mandates and billable hours, but also the prosperity of the law itself. The Juristentag offers ample opportunity for this: questions of a legal policy are put up for debate in half a dozen so-called departments and the answers are voted on in the form of recommendations to politicians, some of which have been eventually followed.

The 73rd DJT which will take place in Bonn next week is an anomaly as the 72nd four years ago, not the usual two. That, of course, was due to the pandemic, and the result is that this year’s conference has a double time stamp: it is making up for what had to be cancelled in 2020. One section was/is dedicated to the judiciary and the question of whether “regulations to ensure the independence of the judiciary when filling judges’ positions” are recommended. Readers of Verfassungsblog will not find it hard to guess why this particular topic has been put on the agenda. For seven years now, we have been watching the Polish government systematically and brutally force the Constitutional Tribunal, the National Council of the Judiciary, the Supreme Court and the court system at large under its thumb. As is well known, this has led the European Court of Justice to take unprecedentedly bold steps in the development of European judicial constitutional law and has also animated some German judges to reconsider their  their own relationship of dependency with respect the justice ministries at the federal and state levels.

At the DJT, the search for answers is usually pre-structured with one or more detailed expert opinions. In the judiciary department, this expert opinion was written by Fabian Wittreck, professor of constitutional law from the University of Münster. His thesis, presented with considerable polemic excess: Institutional independence of the judiciary is actually something German judges can forget about. They enjoy individual protection against avoidable influence on their judicial activities. But this, according to Wittreck, has “nothing, absolutely nothing … to do with the separation of powers”. To shield the third power as such from the legislature and the government is a demand that is “alien to federal German law in this form and can in no way be derived from European law in a binding way” (p. 15).

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According to Wittreck’s argument, the Basic Law protects the material independence of individual judges in Article 97(1) and their personal independence in Article 97(2). Material independence means that the judge must be bound by the law only and free from instructions and avoidable influence by the government. The case law of the ECtHR and the ECJ amounts to by and large the same. As far as the ECJ speaks of the judiciary exercising its judicial functions “wholly autonomously” in its more recent rulings, this is “with all due respect unfortunately norm-logical nonsense”, because complete autonomy can be demanded, if at all, from the “Christian Creator God”, but not from a man-made democratic institution (p. 25). Either way, the principles of democracy and the rule of law require that judges, too, be subject to a certain degree of control in their actions and omissions, Wittreck writes with more than just one sarcastic nod to the notoriously uncontrolled ECJ. Which is why, in his view, the ECJ’s “wholly autonomously” formula should be interpreted in such a way that it refers to jurisdiction in the narrower sense only.

The protection of personal independence ensures that judges must not only be free from instructions, but also from sanctions. Above all, they must not have to fear for their jobs if their judgements displease the government. Here again, Wittreck sees a problem above all at the ECJ itself, whose members can be re-elected after their six-year term has expired – “evidently critical” in Wittreck’s eyes: it is “palpable that a judge, in view of the impending ‘extension’ of his or her own office, could at least ponder whether the decisions for which he or she shares responsibility could meet with the approval of those responsible for the re-appointment”. As far as the current German ECJ judge Thomas von Danwitz is concerned, who has already had his office ‘extended’ twice, Wittreck seems to find nothing to worry about at all: Instead, Wittreck argues with a fearless somersault of thought, it was the previous practice of not re-electing judges after a term of office that should be castigated in the strongest terms: “simply a grossly negligent handling of the posts reserved for the Federal Republic” that had been “treated for a long time as a purely party-political distribution mass, instead of enabling the judges through a long term of office to build up moderating or even decisive influence on the court and its decisions” (p. 28f., also p. 57).

The call for institutional independence of the judiciary, according to Wittreck, has no explicit basis in the Basic Law and is therefore “basically a matter of faith” (p. 32). Although Article 92 of the Basic Law does explicitly entrust the judicial branch of government to judges, their appointment is just as explicitly entrusted to the executive and, in some cases, to parliament. At the state level, judges and lawyers are involved to some extent, but a “pure self-supplementation” (p. 33) of the third power is ruled out in any case. Nothing else emerges from European law either, apart from “‘standards’ presented in the mode of nasal whine … which must be clearly unmasked here as what they essentially are: products of judicial lobbying or even functionary fantasies”, even if a “poorly concealed citation cartel” tries hard to prove the contrary (p. 34).

By these standards, what is the state of the independence of the judiciary in Germany? De iure, it is indeed the government that decides on the appointment and promotion of judges at the federal level and in a large part of the Länder, partly with the involvement of parliament. The practice, however, according to Wittreck, is a completely different matter: in part, these decisions are left to members of the judiciary who have been deputed to the responsible ministry. In part, the decision-making power is ceded to the higher courts or is based on the votes of the presidential councils.

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For Wittreck, self-reproduction of the judiciary is in any case a part far more of the problem than of the solution: as far as the judicial selection committees which exist in eight Länder are concerned, he downright calls for their abolition, “since they are palpably dysfunctional in terms of the selection of the best under Article 33 (2) of the Basic Law and in terms of independence under Article 97 of the Basic Law” (p. 42). With these committees, according to Wittreck, posts are distributed along party lines in package solutions, and the number of “string-pullers” (p. 43), whose favour one must earn to make a career, is only increased. The presidential councils at the highest federal courts, whose veto against “unsuitable” candidates is the factually deciding factor, are in part only interested in “stewing in their own juices” and in this respect contribute to the protection of judicial independence “as much as a grazing cow contributes to climate protection”.

That kind of metaphor, to be frank, seems to reveal a level of emotionality that I can’t help wishing the expert would have kept to himself, really. On the other hand, as solid as judicial independence in Germany still appears on the whole, despite all kinds of individual problems and the power of the ministries of justice and all the strategic whining of the judges’ associations, I can understand his impatience to a certain extent.

What the expert, the judges’ associations and all the visitors to the DJT have in common is that as lawyers they are only used to looking at the cases that are actually before them. As opposed to those that aren’t, but soon might be.

Whether the German system of appointing, promoting and disciplining judges is in need of reform is not only measured by the current problems we have with it, but also by its resilience in these times of crisis we are living in. It has to hold up even if, let’s say, the AfD wins the elections in the Free State of Saxony one day. All those conventions that currently guarantee that politics stays out of the personnel decisions of the judiciary are nothing more than that: conventions. They will be respected just as long as they are respected, and not a minute longer. Right-wing extremist ex MP Jens Maier, alhamdulillah, is no longer an active judge. What if he returns as Saxon Minister of Justice? Out of the question? Is it, though?

Not only in Poland, but in all parts of the world, a powerful transnational authoritarian-populist movement has formed in recent years, united by the goal of gaining domination over the judiciary and then using it to the utmost to gain and maintain power. On the way to this goal, it creates resonance by feeding resentment against the judicial “caste” and its privileges and its power to stand in the way of the will of the people. The German part of this movement, at least for the moment, admittedly seems reassuringly far from that goal. Let’s wait and see what the winter brings.

None of this, however, plays much of a role in the expert opinion. The exception I found is a passing mention of Klaus-Ferdinand Gärditz’s proposal to entrench the two-thirds majority for the election of Federal Constitutional Court members in Article 94 of the Basic Law (which could otherwise be abolished with a single majority vote in the Bundestag).

A pity, really. I do hope the DJT discussants will find a way to expand the scope of the debate.

The week on Verfassungsblog

… summarized by PAULINE SPATZ:

The Sub-Department for Europe of the Bundestag administration has published an “elaboration” on cannabis legalisation. KAI AMBOS‘ sharp criticism details the shortcomings of the „elaboration“.

FRIEDERIKE GEBHARD analyses how the measles vaccination decision of the Federal Constitutional Court shifts the concept of the best interests of the child in the light of the exclusive availability of combination vaccines.

SIMON SCHÄFER-STRADOWSKY & ANNA-LENA PRIEBE explain why the merit order principle is partly responsible for rising energy prices and call for a renewal of the electricity market design.

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SASKIA STUCKI takes the Swiss popular initiative against factory farming as an opportunity to emphasise the climate policy significance of state regulation of meat.

LOUISE DU TOIT gives an overview of South Africa’s Shell case, discussing the judgement and its significance for social and ecological justice.

MARCIN MATCZAK offers a personal and in-depth account of the debate on how to fix the rule of law in Poland: Not by pandering to people’s emotions but by a comprehensive legal process, he believes.

Prompted by republican protests at various royal events this week, DAVID MEAD addresses issues about the policing of free speech, protest, and dissent in the UK.

JUDIT BAYER comments on the draft of the European Commission’s Media Freedom Act – and on what’s missing from it.

RIVKA WEILL shares with us her theory of constitutional saving clauses.

Our blog debate on Frontex and the rule of law continues with a contribution by Amanda Musco Eklund in two parts (Part I and Part II).

So viel für diesmal. Ihnen alles Gute und bis nächste Woche!

Ihr

Max Steinbeis