by Alessandra Silveira, Editor 
 and Sophie Perez Fernandes, Junior Editor

▪

On 27 February 2018, the European Court of Justice (ECJ) delivered its judgment in the Associação Sindical dos Juízes Portugueses case (C-64/16), a judgment which, for its relevance for effective judicial protection and the rule of law in the EU, is already compared with Les Verts (here).

At the origin of the request for a preliminary ruling is a special administrative action brought before the Supremo Tribunal Administrativo (Supreme Administrative Court, Portugal) seeking the annulment of salary-reduction (administrative) measures of the judges of the Tribunal de Contas (Court of Auditors, Portugal). These measures were adopted on the basis of a Portuguese law of 2014 putting in place mechanisms for the temporary reduction of remuneration (and the conditions governing their reversibility) of a series of office holders and employees performing duties in the public sector, including members of the judiciary. As the Advocate General Saugmandsgaard Øe pointed out (here), the ECJ was in essence asked to “determine whether there is a general principle of EU law that the authorities of the Member States are required to respect the independence of the national judges and, more particularly – in the light of the circumstances of the main proceedings – to maintain their remuneration at a constant level that is sufficient for them to be able to perform their duties freely.”

The legal action brought before the Supremo Tribunal Administrativo was accompanied with the opinion of Alessandra Silveira and Pedro Froufe, two of the editors of this blog. The opinion intended to clarify the extent to which the subject matter fell within the scope of application of EU law, triggering the need to refer to the ECJ for a preliminary ruling. The Supremo Tribunal Administrativo eventually referred to the ECJ a question focusing on judicial independence as a requirement to effective judicial protection within EU law in view to ascertain the compatibility of the austerity measures in question with that principle: “In view of the mandatory requirements of eliminating the excessive budget deficit and of financial assistance regulated by (…) rules [of EU law], must the principle of judicial independence, enshrined in the second subparagraph of Article 19(1) TEU, in Article 47 of the [Charter] and in the case-law of the Court of Justice, be interpreted as meaning that it precludes the measures to reduce remuneration that are applied to the judiciary in Portugal, where they are imposed unilaterally and on an ongoing basis by other constitutional authorities and bodies, as is the consequence of Article 2 of Law [No 75/2014]?”

In turn, the ECJ seized the opportunity given through this somewhat technical issue to deliver a judgment of far-reaching consequences for effective judicial protection and the rule of law within the EU and, arguably, for the construction of the legal-constitutional model that supports the European integration process.

First, the reasoning of the ECJ is based on a combined reading of Article 2 TEU (values of the EU), Article 4(3) TEU (principle of sincere cooperation) and Article 19(1) TEU (principle of effective judicial protection of individuals’ rights under EU law) (paras. 29-36). In particular, the ECJ specially emphasises Article 19 TEU as a “concrete expression to the value of the rule of law stated in Article 2 TEU” and acknowledges the integrated nature of the EU judiciary system, as “national courts and tribunals, in collaboration with the Court of Justice, fulfil a duty entrusted to them jointly of ensuring that in the interpretation and application of the Treaties the law is observed”. The principle of effective judicial protection of individuals’ rights under EU law as “now reaffirmed by Article 47 of the Charter” is also mentioned, but in what could almost be a side note.

The argumentative preference is clearly that based on the principle of effective judicial protection as a concrete expression of the value of the rule of law on which the EU is founded as “the very existence of effective judicial review designed to ensure compliance with EU law is of the essence of the rule of law.” But also, by placing the principle of effective judicial protection as a fundamental right on the sidelines, the ECJ unshackles the principle of the constrains of Article 51(1) CFREU. The ECJ expressly stated that “as regards the material scope of the second subparagraph of Article 19(1) TEU, that provision relates to ‘the fields covered by Union law’, irrespective of whether the Member States are implementing Union law, within the meaning of Article 51(1) of the Charter.” The difference between “the fields covered by EU law” [Article 19(1) TEU] and “situations that come within the scope of EU law” [Article 51(1) CFREU, as interpreted in Fransson] remains to be clearly ascertained. But it does seem safe to state following the judgment in Associação Sindical dos Juízes Portugueses that the scope of application of Article 19(1) TEU is broader than the scope of EU law for the purposes of Article 47 CFREU. If an effective and sufficient link with EU law is necessary to trigger Article 47 CFREU by virtue of Article 51(1) CFREU, the mere possibility of applying EU law appears to be enough to trigger Article 19(1) TEU. Therefore, Member States must ensure that the bodies which, as ‘courts or tribunals’ within the meaning of EU law, come within their judicial system in the fields covered by EU law, meet the requirements of effective judicial protection, irrespective of whether they are implementing EU law within the meaning of Article 51(1) CFREU.

This state of affairs has far-reaching consequences within the constitutionalism model emerging from the European integration. Bringing to light the legal-operational force of the values on which the EU is founded, the judgment given in Associação Sindical dos Juízes Portugueses does not ignore the challenges that the rule of law still faces today “every here” in the EU (see comments here, here, and here) – meaning that these challenges are not far off, but concern all as they occur just around the corner. At the same time, however, the judgment discretely acknowledges and seeks to overcome the methodical difficulties posed by Article 51(1) CFREU within the EU system of protection of fundamental rights.

Second, the ECJ clarifies the requirement of independence as an essential requirement to effective judicial protection under Article 19(1) TEU (paras. 40-45). After pointing out its inherent character in the task of adjudication and its essential role to the proper working of the judicial cooperation system embodied by the preliminary ruling mechanism (Article 267 TFEU), the ECJ interprets the concept of judicial independence as presupposing that “the body concerned exercises its judicial functions wholly autonomously, without being subject to any hierarchical constraint or subordinated to any other body and without taking orders or instructions from any source whatsoever, and that it is thus protected against external interventions or pressure liable to impair the independent judgment of its members and to influence their decisions.” In particular, both the “protection against removal from office of the members of the body concerned” and the “receipt by those members of a level of remuneration commensurate with the importance of the functions they carry out” are mentioned as constituting guarantees essential to judicial independence.

On the case at hand, and unsurprisingly, the ECJ did not consider the salary-reduction measures at issue to undermine the independence of the members of the Tribunal de Contas (paras. 46-52). The limited and variable reduction of remuneration at issue (up to a percentage varying in accordance with the level of remuneration), the temporary nature of the salary-reduction measures (put to an end on 1 October 2016), as well as their general nature, insofar as the measures were inscribed in a collective austerity effort affecting several agents of the executive, the legislature and the judiciary, weighed in reaching this conclusion.

The answer given by the ECJ, however, cannot divert attention from the fact that a question of judicial independence was assessed without any relevance having been given to the issue of whether or not the austerity measures in question were covered by EU law. According to the Supremo Tribunal Administrativo, the measures for the temporary reduction in the amount of public sector remuneration, also applied to the members of the judiciary, were based on mandatory requirements for reducing the Portuguese State’s excessive budget deficit during the year 2011. The referring court therefore considered those measures as measures adopted within the framework of EU law or, at least, as being European in origin, on the ground that those requirements were imposed on the Portuguese Government by EU decisions granting financial assistance (para. 14). The ECJ, however, bypassed the issue, putting into practice the reasoning above that, as a concrete expression of the value of the rule of law on which the EU is founded, the principle of effective judicial protection and its requirements are to be ensured by every Member State in the fields covered by EU law, irrespective of whether they are implementing EU law.