Building the ECJ puzzle on judicial independence in a Union based on the rule of law (Commission v Poland in the light of ASJP)

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 by Alessandra Silveira, Editor


On 27 February 2018, the ECJ delivered its judgment in the
Associação Sindical dos Juízes Portugueses case (C-64/16).[i] It is a judgment of far-reaching consequences for effective judicial protection and the rule of law within the European Union – and, arguably, for the construction of the legal-constitutional model that supports the European integration. Mainly because the 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.[ii] It is worth recalling the circumstances of this case law to understand the following ECJ steps.

At the origin of the request for a preliminary ruling was 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). 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.

Besides, the legal action brought before the Supremo Tribunal Administrativo was accompanied with an opinion presented by me and my Colleague 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.[iii] However, this did not play any role in the interpretation which led the Court to conclude that the second subparagraph of Article 19(1) TEU was applicable in the case in question. This is the password to understand this new standard and the following ECJ steps on judicial independence, in order to Article 19 TEU gives concrete expression to the value of the rule of law affirmed in Article 2 TEU.

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]?”[iv]

In turn, the ECJ seized the opportunity given through this somewhat technical issue to deliver a judgment which, for its relevance for effective judicial protection and the rule of law in the European Union, is already compared with Les Verts.[v] As the Advocate General Saugmandsgaard Øe pointed out,[vi] in the ASJP case 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.

As regards the material scope of the second subparagraph of Article 19(1) TEU, the ECJ stated that this provision relates to ‘the fields covered by Union law’, irrespective of whether the Member States are implementing EU law, within the meaning of Article 51(1) of the Charter. So, in ASJP the ECJ highlighted that what is at stake is not (or it is not only) a question on fundamental rights. 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. As we have said in this blog, 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) Charter, as interpreted in Fransson[vii]] remains to be clearly ascertained, because there cannot exist situations which are covered by EU law without fundamental rights being applicable. In other words, the applicability of EU law entails the applicability of the fundamental rights guaranteed by the Charter.

Nevertheless, it seemed certain to state following the judgment ASJP 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.

With its judgment of 24 June 2019 (Commission v Poland, C‑619/18) the ECJ is adding another piece to the puzzle. The novelty lies in the fact that the ECJ seems to recover the “jus-fundamental” dimension of the question and decided that the second subparagraph of Article 19(1) TEU requires Member States to provide remedies that are sufficient to ensure effective legal protection, within the meaning in particular of Article 47 CFREU, in the fields covered by EU law.[viii] To a certain extent, the ECJ is reassessing the “jus-fundamentality” of situations which are covered by EU law.

Relying on the judgments ASJP and Minister for Justice and Equality,[ix] the European Commission was seeking, in essence, a declaration that the second subparagraph of Article 19(1) TEU, read in the light of Article 47 CFREU, has been infringed. According to the Commission, the concept of effective legal protection referred to in the second subparagraph of Article 19(1) TEU must be interpreted having regard to the content of Article 47 CFREU and, in particular, the guarantees essential to the right to an effective remedy laid down in that latter provision, and accordingly the first of those provisions entails that the preservation of the independence of a body such as the Supreme Court, which is entrusted, inter alia, with the task of interpreting and applying EU law, must be guaranteed.[x]

The Commission argued that the Member States are required, inter alia, to ensure that the national bodies which may rule on issues in relation to the application or interpretation of EU law meet the requirement in respect of judicial independence, that requirement being a key part of the fundamental right to a fair trial as guaranteed by the second paragraph of Article 47 CFREU. Since the Supreme Court constitutes such a body, the national provisions governing the composition, the organisational structure and the working method of that court should ensure that it meets that independence requirement. That requirement concerns not only the way in which an individual case is conducted, but also the way in which the justice system is organised. The consequence of a national measure affecting, in general, the independence of the national courts is that an effective legal remedy is no longer guaranteed, inter alia when those courts apply or interpret EU law.[xi]

The Republic of Poland, supported in this connection by Hungary, argued that those provisions of EU law do not include any derogation from the principle of conferral which governs the competences of the European Union and which follows from Article 4(1) and Article 5(1) and (2) and Article 13(2) TEU. Therefore, the organisation of the national justice system constitutes a competence reserved exclusively to the Member States, so that the European Union cannot arrogate competences in that domain. Moreover, the second subparagraph of Article 19(1) TEU and Article 47 CFREU, like general principles of EU law such as the principle of judicial independence, are applicable only in situations governed under EU law.

According to the Republic of Poland, the national rules called into question by the Commission have no link with EU law and in this respect can be distinguished from the national legislation which was the subject matter of the judgment ASJP – legislation which, for its part, was connected with the grant of financial assistance by the European Union to a Member State in the context of combatting excessive budget deficits and which, consequently, was adopted pursuant to EU law.[xii]

However, according to the ECJ, although the organisation of justice in the Member States falls within the competence of those Member States, the fact remains that, when exercising that competence, the Member States are required to comply with their obligations deriving from EU law. Moreover, by requiring the Member States thus to comply with those obligations, the European Union is not in any way claiming to exercise that competence itself nor is it, therefore, contrary to what is alleged by the Republic of Poland, arrogating that competence.

As regards the material scope of the second subparagraph of Article 19(1) TEU, the ECJ developed its judgment ASJP. As we mentioned supra, in contrast to what has been claimed by the Republic of Poland and Hungary in this respect, the fact that the national salary reduction measures at issue in the ASJP were adopted due to requirements linked to the elimination of the excessive budget deficit, in the context of an EU financial assistance programme for Portugal, did not play any role in the interpretation which led the ECJ to conclude that the second subparagraph of Article 19(1) TEU was applicable in the case in question. That conclusion was reached on the basis of the fact that the national body which that case concerned, namely the Tribunal de Contas, could, subject to verification to be carried out by the referring court in that case, rule, as a court or tribunal, on questions concerning the application or interpretation of EU law and which therefore fell within the fields covered by EU law.[xiii]

According to the ECJ, the same occurs with the Supreme Court in the Comission v Poland case. So, to ensure that a body such as the Supreme Court is in a position to offer an effective judicial protection, maintaining its independence is essential, as confirmed by the second paragraph of Article 47 CFREU, which refers to access to an ‘independent’ tribunal as one of the requirements linked to the fundamental right to an effective remedy. That requirement that courts be independent, which is inherent in the task of adjudication, forms part of the essence of the right to effective judicial protection and the fundamental right to a fair trial, which is of cardinal importance as a guarantee that all the rights which individuals derive from EU law will be protected and that the values common to the Member States set out in Article 2 TEU, in particular the value of the rule of law, will be safeguarded.[xiv]

Awaiting the next pieces of the puzzle…

 

[i] Judgment of 27 February 2018, Associação Sindical dos Juízes Portugueses (ASJP), C-64/16.

[ii] See Alessandra Silveira and Sophie Perez text on this judgment in https://officialblogofunio.com/2018/04/03/a-union-based-on-the-rule-of-law-beyond-the-scope-of-eu-law-the-guarantees-essential-to-judicial-independence-in-associacao-sindical-dos-juizes-portugueses/

[iii] The opinion mentioned was published in Julgar, a publication of the Associação Sindical dos Juízes Portugueses – see Alessandra Silveira, Joana Abreu, Pedro Froufe, Sophie Perez, “União de direito para além do direito da União – as garantias de independência judicial no acórdão Associação Sindical dos Juízes Portugueses”, in Julgar online, May 2018, in http://julgar.pt/wp-content/uploads/2018/05/20180529-ARTIGO-JULGAR-Uni%C3%A3o-de-direito-para-al%C3%A9m-do-direito-da-Uni%C3%A3o-A-Silveira-P-Froufe-S-Perez-e-J-Abreu.pdf

[iv] Judgment of 27 February 2018, ASJP, C-64/16, paragraph 18.

[v] Judgment of 25 February 1988, Les Verts, 294/83.

[vi] Opinion (Advocate General Saugmandsgaard Øe) of 18 May 2017, ASJP, C-64/16, paragraph 55.

[vii] Judgment of 26 February 2013, Fransson, C-617/10, paraghaph 21.

[viii] Judgment of 24 June 2019, Commission v Poland, C‑619/18, paragraph 54.

[ix] Judgment of 4 December 2018, Minister for Justice and Equality, C-378/17.

[x] Judgment of 24 June 2019, Commission v Poland, C‑619/18, paragraph 32.

[xi] Judgment of 24 June 2019, Commission v Poland, C‑619/18, paragraphs 34 to 36.

[xii] Judgment of 24 June 2019, Commission v Poland, C‑619/18, paragraphs 37 to 40.

[xiii] Judgment of 27 February 2018, ASJP, C-64/16, paragraph 40.

[xiv] Judgment of 24 June 2019, Commission v Poland, C‑619/18, paragraphs 56 to 58.

Pictures credits: Puzzle pieces by Liza.

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