By Robin Leick[1]
EU values, as laid down in Article 2 of the Treaty on European Union (TEU), and, specifically, human rights, democracy and rule of law issues arise in many Member States of the EU. However, in only a few amongst them – especially Hungary and Poland – such issues seemed to have intensified in recent years to the extent that one may speak of EU values crises there.[2] Two indicators of this are the Article 7 procedures which have been initiated with regard to these two countries.[3] With a view to the rule of law, another indicator may be the several rule of law-related rulings of the Court of Justice of the EU (CJEU) during the last two years, which have mostly concerned Poland.
The latter gives a reason for taking a closer look at the EU’s possibilities for a judicial handling of a rule of law crisis in a Member State. Thus, whereas last week’s blog post aimed to provide an overview of several important measures of the EU to prevent or tackle a rule of law crisis in a Member State, this blogpost will focus on the CJEU’s reactions to such crises. Its judgments are particularly important because of the CJEU’s role in clarifying EU legal principles, including the rule of law. Firstly, the most important procedural opportunities of the CJEU to decide on the rule of law cases concerning an EU Member State will be briefly described. Subsequently, both the controversial actions in question and the Court’s respective responses will be presented. The conclusion will summarise the most important findings and provide an outline to the next and final blogpost.
1. The CJEU’s opportunities to get involved with a rule of law crisis in a Member State
There are several ways in which the Court of Justice may be faced with a rule of law crisis in a Member State. In particular, the European Commission[4] or another Member State[5] can bring a case of a Member State’s alleged violation of EU law to the Court of Justice.[6] Furthermore, any court or tribunal of a Member State may request a CJEU ruling concerning, in particular, the interpretation of the Treaties “if it considers that a decision on the question is necessary to enable it to give judgment” (Article 267 TFEU). As will be seen in the next paragraphs, both paths were followed in the rule of law debate concerning Poland.
2. The controversial legislative changes in Poland and the CJEU’s responses
Since 2015, the Polish Parliament has adopted several legal acts in order to introduce controversial changes within the Polish justice system. Next to modifications regarding the composition and operation of the Polish Constitutional Court in 2015 and 2016,[7] the changes in the judiciary influenced in particular judicial independence and impartiality.
The lowering of the retirement age of judges
In 2017 and 2018, two statutes entered into force which, firstly, reduced the retirement age of ordinary courts’ judges from 67 to 65 (male judges) and 60 (female judges)[8] and, secondly, reduced the retirement age of Supreme Court judges from 70 to 65.[9] At the same time, the President of the Republic of Poland, in the case of Supreme Court judges, and the Minister for Justice, in the case of ordinary courts’ judges, were given discretionary power to consent to a judge continuing in his or her office beyond the newly set retirement age.[10] It seems worth mentioning that the application of the new retirement age affected almost one third of the Supreme Court judges.[11]
In 2019, the Court of Justice of the European Union, in response to the applications submitted by the European Commission, ruled that Poland had – next to an infringement of the European principle of equal pay for male and female workers for equal work[12] – violated its obligation to “provide remedies sufficient to ensure effective legal protection in the fields covered by Union law” (Article 19 paragraph 1 TEU). This obligation must be seen in the context of the role of national courts within the EU: the realisation of its legal acts greatly depends on the national judiciary, which has to directly apply most of them. According to the Court, Article 19 TEU contains the Member States’ obligation to guarantee the independence and impartiality of judges in the fields covered by Union law[13] and serves as a “concrete expression to the value of the rule of law affirmed in Article 2 TEU”[14].
Independence and impartiality “require that the body concerned exercise its functions wholly autonomously, being protected against external interventions or pressure liable to impair the independent judgment of its members and to influence their decisions, with due regard for objectivity and in the absence of any interest in the outcome of proceedings. The rules seeking to guarantee that independence and impartiality must be such that they enable any reasonable doubt in the minds of individuals as to the imperviousness of that body to external factors and its neutrality with respect to the interests before it to be precluded.”[15] This includes, among other things, rules against disproportionate removal from office[16].
The CJEU considered the lowering of the retirement age of judges combined with discretionary power of the executive (the President of the Republic and the Minister for Justice) to freely decide, without “any objective and verifiable criterion”[17], whether a judge shall be allowed to remain in office for five or even ten more years (in the case of female judges of ordinary courts) to be surrounded by doubts as regards “the true aims of the reform”[18]. In particular, the new measures seemed “to exclude a pre-determined group of judges”[19]. The CJEU did not recognise both a legitimate objective that could justify these measures[20] and sufficient safeguards to protect the affected judges “from potential temptations to give in to external intervention or pressure”[21] in order to obtain an extension. As a result, the CJEU found both laws to violate Article 19 TEU and thus defended directly the EU’s rule of law standards in a Member State.[22]
The introduction of a new disciplinary framework
Again in 2018, Polish Parliament changed the rules governing disciplinary liability of judges in several ways. Among other things, it established a new Disciplinary Chamber at the Supreme Court.
The status of this newly established Disciplinary Chamber at the Supreme Court raised doubts of another chamber of this very court – the Labour and Social Insurance Chamber. According to the newly amended national law, the former – and no longer the latter – was now empowered to decide on actions brought by several judges who were affected by the new retirement laws explained above.[23] The actions of these judges concerned questions regarding EU laws against age discrimination, and with them, the question of legal protection adequate to EU standards as set out in Article 47 of the Charter of Fundamental Rights of the European Union and of Article 19 TEU.[24] The Labour and Social Insurance Chamber thus referred several questions to the CJEU and asked for guidance in particular on the EU’s legal standard of independence and impartiality of the judiciary to be applied to the “composition and the circumstances and conditions surrounding the appointment of the judges called to sit on that court [in this case, the Disciplinary Chamber – R.L.]”[25]. The CJEU did not have the power to decide whether the new chamber was in breach of the EU’s principle of independence and impartiality of the judiciary.[26] However, it indicated several factors that – if read in conjunction – may be relevant for the Labour and Social Insurance Chamber to decide whether the new Disciplinary Chamber fulfils EU rule of law standards or not.[27] First, the CJEU gave its views on what might be a possibly problematic way of appointment for the judges of the Disciplinary Chamber. Here, the court referred in particular to the circumstances of the reform process of the institution nominating those judges, which seemed to have shown several conspicuous features and to have led to a greater influence of the Polish Parliament.[28] Second, the CJEU indicated that the context of the mode of operation of the new chamber would be important to determine its independence and impartiality. Relevant factors could be the newly granted exclusive and autonomous power of the new chamber to adjudicate upon retirement questions; this was all the more important as, at the same time, the above-mentioned new and controversial rules on retirement of Supreme Court judges were introduced.[29] Thus, the CJEU paved the way for the Polish courts themselves to enforce European rule of law standards.
Moreover, in 2019 and 2020 the European Commission initiated two infringement procedures, as – among other things – it doubted the independence and impartiality of the above-mentioned Disciplinary Chamber and further criticised how disciplinary rules allow in particular “the content of judicial decisions to be treated as a disciplinary offence so far as concerns judges of the ordinary courts”[30]. How the CJEU will decide these two cases remains to be seen.
Implications on the cooperation within the EU
The changes in the Polish justice system have also had implications on the intra-EU cooperation between individual Member States. In 2018, the Irish High Court expressed its concerns to the CJEU regarding the requested surrender of a suspect to Poland. The request was based on the EU Framework Decision on the European arrest warrant.[31] The CJEU recognised the power and the legal obligation of Member States’ courts to deny the surrender of suspects to Poland – as to any other Member State – if a two-step test is fulfilled. First, the executing judicial authority – in this case the Irish High Court – needs to undertake a general assessment on whether a breach of the fundamental right to a fair trial could happen in the requesting Member State – in this case Poland – due to systemic deficiencies concerning that Member State’s judiciary.[32] One possible indication for such deficiencies is the introduction of the early warning procedure of Article 7 paragraph 1 TEU.[33] If such indications exist, then the executing judicial authority has to make a case-by-case assessment of whether the suspected person will run the risk of having their fundamental rights violated.[34] As a result, the CJEU has given a prominent place to the rule of law, which may even lead to the cessation of cooperation between all the Member States and the Member State concerned and – possibly – persuade this Member State to turn back.
3. Conclusion
To conclude, the judgments outlined above have shown that the Court of Justice of the European Union finds ways to react to specific rule of law shortcomings. For this, the Court uses in particular the obligation of every Member State to provide for an independent and impartial judiciary in the fields covered by Union law in order to address rule of law deficits in a Member State. However, the Court does not and cannot work on its own: it needs other actors, such as the European Commission or national courts and tribunals, to lodge cases on the basis of which it can defend EU values, such as the rule of law. The next and final blog post will tackle the question of whether the Court’s efforts to protect the rule of law in the Member States also bear fruit in reality.
References
[1] I would like to thank Vanessa Ackva, Jakub Karczewski and David Preßlein for their valuable comments on a previous version of this blog post as well as Muhammad Saad Siddiqui for the linguistic revision of the text. All linked websites were last accessed on 28 September 2020. I have already authored several smaller (partly also introductory) contributions to the debate on values and the rule of law, see in particular Robin Leick, Neue Zeitschrift für Verwaltungsrecht (NVwZ) 2020, “Fortgesetzte Sicherung europäischer Werte in Polen – die Macht der kleinen Schritte”, 291, which takes the CJEU’s case C-192/18 of 5 November 2019, Commission/Poland, ECLI:EU:C:2019:924, as an opportunity to briefly analyse both the judgment and the CJEU’s recent case law on the rule of law.
[2] Using the term “Hungarian Human Rights crisis” early Gayeon Lee, “Three reasons why Article 7 TEU has never been used: Applying the Hungarian problem”, in: Anne Pieter van der Mei/Ellen Vos, The Institutional Functioning of the EU, EU Law Foundations, 2013-2014 Volume IV, Maastricht Centre for European Law, Maastricht University, p. 197 (203); using the term “Polish rule of law crisis” e.g. Robert Grzeszczak, Ireneusz Paweł Karolewski, “The Rule of Law Crisis in Poland: A New Chapter”, Verfassungsblog of 8 August 2018.
[3]On this see the last week’s blog post.
[4] Article 258 Treaty on the Functioning of the European Union(TFEU).
[6]For further information see the last week’s blog post.
[7]See for this European Commission, Recommendation (EU) 2017/146 of 21 December 2016 regarding the rule of law in Poland complementary to Recommendation (EU) 2016/1374, recitals 7 et seq.
[8]See CJEU, case C-192/18 of 5 November 2019 (note 1), paras. 15 et seq.
[9]See CJEU, case C-619/18 of 24 June 2019, Commission/Poland, ECLI:EU:C:2019:531, paras. 9 et seq.
[10] See CJEU, case C-619/18 of 24 June 2019 (note 9), paras. 11 et seq.; case C-192/18 of 5 November 2019 (note 1), para. 19, respectively.
[11] See CJEU, case C-619/18 of 24 June 2019 (note 9), para 86.
[12] See CJEU, case C-192/18 of 5 November 2019 (note 1), paras. 58-84; see on this also Robin Leick, NVwZ 2020, 291, 293 with reference to the EU’s value of equality.
[13] Elaborated in particular in CJEU, case C-64/16 of 27 February 2018, Associação Sindical dos Juízes Portugueses, ECLI:EU:C:2018:117, paras. 41 et seq.; on the interaction between Art. 19 TEU and Art. 47 of the Charter of Fundamental Rights of the EU see Robin Leick, NVwZ 2020, 291 (292).
[14] CJEU, case C-619/18 of 24 June 2019 (note 9), para. 47; case C-192/18 of 5 November 2019 (note 1), para. 98.
[15] CJEU, case C-619/18 of 24 June 2019 (note 9), para. 108; similarly case C-192/18 of 5 November 2019 (note 1), paras. 109–111.
[16] CJEU, case C-619/18 of 24 June 2019 (note 9), paras. 75–77; case C-192/18 of 5 November 2019 (note 1), paras. 112–114.
[17] CJEU, case C-619/18 of 24 June 2019 (note 9), para. 114; similarly, case C-192/18 of 5 November 2019 (note 1), para. 122.
[18] CJEU, case C-619/18 of 24 June 2019 (note 9), para. 87; as a result similarly case C-192/18 of 5 November 2019 (note 1), para. 127.
[19] CJEU, case C-619/18 of 24 June 2019 (note 9), para. 85; similarly case C-192/18 of 5 November 2019 (note 1), para. 127.
[20] In case C-619/18 of 24 June 2019 (note 9), para. 96; C-192/18 of 5 November 2019 (note 1), paras. 113, 115, 130.
[21] CJEU, case C-619/18 of 24 June 2019 (note 9), para. 112; case C-192/18 of 5 November 2019 (note 1), para. 120.
[22] The practical effectiveness of the EU’s and especially the CJEU’s efforts will be evaluated in the next blog post.
[23] CJEU, case C-585/18, C‑624/18 and C‑625/18 of 19 November 2019, A. K. and Others/Sąd Najwyższy, ECLI:EU:C:2019:982, paras. 23–24.
[24] CJEU, case C-585/18, C‑624/18 and C‑625/18 of 19 November 2019 (note 23), paras. 51–52.
[25] CJEU, case C-585/18, C‑624/18 and C‑625/18 of 19 November 2019 (note 23), para. 131.
[26] CJEU, case C-585/18, C‑624/18 and C‑625/18 of 19 November 2019 (note 23), para. 132.
[27] CJEU, case C-585/18, C‑624/18 and C‑625/18 of 19 November 2019 (note 23), paras. 142, 152.
[28] CJEU, case C-585/18, C‑624/18 and C‑625/18 of 19 November 2019 (note 23), paras. 140–144; however, the fact that the majority of the members of the appointing institution are chosen by the legislature does not seem to be sufficient to rise doubts as for the independence of the appointed judges, see on the Judicial Appointing Committee of the German Land Hessen CJEU, C-272/19 of 9 July 2020, Land Hessen, ECLI:EU:C:2020:535, paras. 55, 58.
[29] CJEU, case C-585/18, C‑624/18 and C‑625/18 of 19 November 2019 (note 23), paras. 146–148, 151.
[30] CJEU, Application of case C-791/19 of 25 October 2019, Commission/Poland; see also European Commission, “Rule of Law: European Commission launches infringement procedure to safeguard the independence of judges in Poland”, Press Release of 29 April 2020.
[31] CJEU, case C-216/18 PPU of 5 July 2018, LM, ECLI:EU:C:2018:586, paras. 21–25
[32] CJEU, case C-216/18 PPU of 5 July 2018 (note 31), para. 68.
[33] CJEU, case C-216/18 PPU of 5 July 2018 (note 31), para. 79; see on the Article 7 procedure the last week’s blog post.
[34] CJEU, case C-216/18 PPU of 5 July 2018 (note 31), para. 68.