By Alessandra Silveira (Editor)

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Rule of law and the direct effect of the second subparagraph of Article 19(1) TEU (on the case M. F., C-508/19)

Never since the beginning of European integration, was the mission of impartial and independent courts been as important as nowadays, taking into account the war currently being waged. Therefore, it is important to consider that “It is when the cannons roar that we especially need the laws…Every struggle of the state – against terrorism or any other enemy – is conducted according to rules and law”, as stated the Advocate General Poiares Maduro in his Opinion in the case Kadi, quoting Aharon Barak, the former President on the Supreme Court of Israel (C‑402/05 P, ECLI:EU:C:2008:11, recital 45).

Last week the CJUE added a piece to the puzzle of a Union based on the rule of law. And do it from the judicial independence in which the effective judicial protection of individuals’ rights under EU law is rooted. More precisely: on 22 March 2022, in the case M. F. (C-508/19, ECLI:EU:C:2022:201), the CJEU has claimed that the second subparagraph of Article 19(1) TEU (according to which “Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law”) must be regarded as having direct effect.

As we know, such developments have began to be built with the “Portuguese Judges” judgment (ASJP, C‑64/16, ECLI:EU:C:2018:117), in which the CJEU was asked to determine whether there is a general principle of EU law, according to which the authorities of the Member States are obliged to respect the independence of national judges as functionally European judges. In its response in “Portuguese Judges” judgment, the CJEU defined judicial independence within the meaning of EU law, establishing criteria and guarantees for its proper exercise. This is the central idea in the “Portuguese Judges” judgment: the very existence of effective judicial review designed to ensure compliance with EU law is of the essence of the rule of law.

It follows that every Member State must ensure that the bodies which, as courts or tribunals within the meaning of EU law, come within its judicial system in the fields covered by that law, meet the requirements of effective judicial protection (ASJP, C‑64/16, ECLI:EU:C:2018:117, recitals 36 and 37). This embodies the value of the rule of law stated in Article 2 TEU and recognizes the integrated nature of the EU’s judicial system, as national courts play a role which is jointly assigned to them with the CJEU in order to ensure respect for the law in the interpretation and application of the Treaties.

Although it is true that the organisation of justice in the Member States falls within the competence of those Member States, when exercising that competence they are required to comply with their obligations deriving from EU law. In particular, as regards national rules relating to the adoption of decisions appointing judges and, where applicable, rules relating to the judicial review that applies in the context of such appointment procedures, and rules governing the disciplinary regime applicable to judges (Commission v Poland – Disciplinary regime for judges, C‑791/19, EU:C:2021:596, recitals 56 and 61; Prokuratura Rejonowa w Mińsku Mazowieckim and Others, C‑748/19 to C‑754/19, EU:C:2021:931, recital 36).

What does the M. F. case bring with it? In January 2019, disciplinary proceedings were initiated against M.F., a judge at a Regional Court of Poland, for alleged delays in handling the cases on which she was called upon to rule.  J.M., in his capacity as President of the Supreme Court, responsible for the work of the disciplinary chamber of the latter court, designated the disciplinary court competent to hear that case at first instance. However, M.F. claimed that the proceedings against her cannot be continued because J.M. is not a judge of the Supreme Court, arguing that J.M.’s appointment in the Supreme Court´s disciplinary chamber was vitiated by several irregularities. One of the chambers of the Supreme Court, the Labour and Social Insurance Chamber, it was then instructed to examine those requests.

On 22 March 2022 the CJEU declared inadmissible the request for a preliminary ruling from that referring court, asking whether EU law confers on it the power, which it does not have under Polish law, to find that a judge’s service relationship does not exist due to irregularities vitiating the instrument of his appointment. The questions referred to the CJEU were related intrinsically to a dispute other than that in the main proceedings, to which the latter is merely incidental (M. F., C-508/19, ECLI:EU:C:2022:201, recital 71). The referring court itself observed that when it is seised of a civil action for a declaration that a legal relationship does not exist, it lacks, under national law, the jurisdiction which would enable it to rule on the lawfulness of the instrument of appointment at issue (M. F., C-508/19, ECLI:EU:C:2022:201, recital 67). It happens, however, that Article 267 TFEU presupposes that the referring court has jurisdiction to rule on the dispute in the main proceedings, so that it cannot be regarded as purely hypothetical. Thus, the CJEU decided that the questions referred do not meet an objective need for the purpose of settling the dispute brought before it.

Anyway, the CJEU notes that, in the absence of a direct right of action i) against J.M.’s appointment as  President of the disciplinary chamber of the Supreme Court or ii) against J.M.’s decision designating the disciplinary court in charge of examining that dispute, M.F. could have raised before that court an objection alleging a possible infringement, arising from the decision at issue, of her right to have the said dispute determined by an independent and impartial tribunal previously established by law (M. F., C-508/19, ECLI:EU:C:2022:201, recital 72).

What is relevant in this M. F. case for the effective judicial protection? At the recital 73 the CJEU recalled that the rules on  the ordinary courts – inasmuch as they confer on the President of the disciplinary chamber of the Supreme Court the discretionary power to designate the disciplinary tribunal with territorial jurisdiction to hear disciplinary proceedings in respect of judges of the ordinary courts –  do not meet the requirement derived from the second subparagraph of Article 19(1) TEU that such cases must be examined by a tribunal “established by law” (European Commission v Republic of Poland, C‑791/19, ECLI:EU:C:2021:596, recital 176).

The novelty in the M. F. case is the CJEU has claimed that the second subparagraph of Article 19(1) TEU must be regarded as having direct effect, with the result that the principle of primacy of EU law requires a disciplinary court so designated to disapply the national provisions pursuant to which that designation was made and, consequently, declare that it has no jurisdiction to hear the dispute before it (M. F., C-508/19, ECLI:EU:C:2022:201, recital 74). The effects of the principle of the primacy of EU law are binding on all the bodies of a Member State, without provisions of domestic law relating to the attribution of jurisdiction, including constitutional provisions, being able to prevent that. In accordance with settled case-law, rules of national law, even constitutional provisions, cannot be allowed to undermine the unity and effectiveness of EU law (A.B. and o., C-824/18, ECLI:EU:C:2021:153, recital 148).

Where it is unable to interpret national law in compliance with the requirements of EU law – because this is the first exercise that judges must to do –, the national court which is called upon within the exercise of its jurisdiction to apply provisions of EU law is under a duty to give full effect to those provisions, if necessary refusing of its own motion to apply any conflicting provision of national legislation, even if adopted subsequently, and it is not necessary for that court to request or await the prior setting aside of such provision by legislative or other constitutional means (M. F., C-508/19, ECLI:EU:C:2022:201, recital 79). On the other hand, a provision of EU law which does not have direct effect may not be relied on, as such, in a dispute coming under EU law in order to disapply a provision of national law that conflicts with it (Popławski, C‑573/17, ECLI:EU:C:2019:530, recitals 58 and 62).

Why is the direct effect of the second subparagraph of Article 19(1) TEU so relevant, especially to protect EU fundamental rights in times of war? The CJEU had already stated that this norm imposes on the Member States a clear and precise obligation as to the result to be achieved – and that obligation is not subject to any condition as regards the independence which must characterise the courts called upon to interpret and apply EU law (A.B. and o., C-824/18, ECLI:EU:C:2021:153, recital 146). But now the direct effect of the second subparagraph of Article 19(1) TEU is expressly recognised – and this allows the right holder to invoke that norm in order to ask to the competent judge to disapplying incompatible national norms.

One should not forget that the Van Gend & Loos judgment, in which the rules of direct effect principle were established is considered to be the most important of the CJUE’s judgments regarding European citizenship. Following this judgment it became clear that when a provision is interpreted as producing direct effect, the consequence is the creation of individual rights, which national courts must protect. Independently of the legislation of the Member States, EU law not only imposes obligations on individuals but is also intended to confer upon them rights which become part of their legal heritage. These rights arise not only where they are expressly granted by the Treaties, but also by reason of obligations which those Treaties impose in a clearly defined way upon individuals as well as upon the Member States and upon the EU Institutions (Van Gend & Loos, 26-62, ECLI:EU:C:1963:1).

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