By Joana Gama Gomes (Master in International and European Law from the University of Coimbra / Researcher at CIDEEFF - Centro de Investigação em Direito Europeu, Económico, Financeiro e Fiscal)

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The request for a preliminary ruling was submitted by a Hungarian court in criminal proceedings brought against a Swedish national, for infringement of the provisions of Hungarian law governing the acquisition or transport of firearms or ammunition. Although the facts of this case seem unrelated to the problem at hand, subsequent developments in Hungary during the course of this procedure raised a fundamental issue of EU law.

A declaration of illegality from the Hungarian Supreme Court and disciplinary proceeding against the referring judge led him to ask the Court two crucial questions – whether EU law precludes a national court of last instance from declaring as unlawful a decision by which a lower court makes a request for a preliminary ruling, and whether the principle of judicial independence precludes disciplinary proceedings being brought against a judge for having made such a request for a preliminary ruling.

These questions are of extreme significance in the context of the EU judicial system at a time where there are growing concerns about judicial independence and the compliance with the rule of law in some EU countries, such as Hungary.^[1]

In this comment, we will focus on the fourth and fifth questions referred to the Court of Justice in this case, as they will provide the answer to our question – Can a judge’s request for a preliminary ruling be illegal and lead to disciplinary action?

The facts

During the course of criminal proceedings brought against a Swedish national before the Central District Court in Pest, Hungary, in July 2019, for infringement of the provisions of Hungarian law governing the acquisition or transport of firearms or ammunition, the referring judge primarily referred three questions to the Court of Justice – one regarding the compatibility of Hungarian law with Directives 2012/13 and 2010/64, relating to the right to information and rules on interpretation and translation in criminal proceedings, and two other questions regarding the independence of Hungarian courts.

The last two questions caused a stir in Hungary. The questions addressed the powers of the President of the National Office for the Judiciary (NOJ), who, since the entry into force of the 2012 judicial reform, can decide on judicial appointments, make senior judicial appointments, and commence disciplinary proceedings against judges. Some of its actions, namely the practice of declaring vacancy notices for judicial appointments unsuccessful without sufficient explanation, have been found to be noncompliant with the law by the National Judicial Council (NJC), responsible for overseeing the actions of the President of the NOJ.

The questions also focused on a legislative amendment, entered into force on 1 September 2018, that increased the remuneration of prosecutors, while not amending the rules on the remuneration for judges, which resulted in the salaries of judges being lower than those of prosecutors of the same level and with the same grade and length of service. The new law also allows for the practice of granting bonuses and rewards on a discretionary basis by the President of the NOJ and by the presidents of the courts.

Therefore, with its second question, the referring judge asked whether the principle of judicial independence, enshrined in Article 19 of the Treaty on European Union (“TEU”) and Article 47 of the Charter of Fundamental Rights of the European Union (“Charter”), must be interpreted as precluding the President of the NOJ from appointing the president of a court, by circumventing the applications procedure for judges and having recourse to direct temporary appointments, bearing in mind that the president of a court is empowered to decide on the allocation of cases, to commence disciplinary proceedings against judges and to assess judicial performance, and, if the answer is in the affirmative, whether the proceedings before a court so presided over are fair. By his third question, the referring judge asked whether the principle of judicial independence must be interpreted as precluding a remuneration system which provides that judges receive lower remuneration than prosecutors of the same category and allows discretionary bonuses to be awarded to judges and, if so, whether that principle must be interpreted as meaning that the right to a fair trial cannot be guaranteed in such circumstances.[2]

Following this referral, in July 2019, Hungary’s Prosecutor General brought an appeal in the interests of the law before the Hungarian Supreme Court (“Kúria”), on the basis of Article 667 of the Code of Criminal Procedure, which was directed against the initial request for a preliminary ruling. By decision of 10 September 2019, the Kúria held that the initial request for a preliminary ruling was unlawful on the ground that the questions referred were not relevant for the resolution of the dispute in the main proceedings, without, however, setting aside the order for reference itself. The Kúria also stated that the conformity of Hungarian law with EU law could not be the subject of a preliminary ruling procedure. As a result, the referring judge considers that the Kúria decision will have a deterrent effect on judges in lower courts contemplating making a request for a preliminary ruling to the Court under Article 26 of the Treaty on the Functioning of the European Union (“TFEU”).

In October 2019, the President of the Budapest High Court instituted disciplinary proceedings against the referring judge, on the same grounds as those set out in the Kúria decision. Although these proceedings were later withdrawn, the referring judge expressed concern that the request for a preliminary ruling under Article 267 TFEU can constitute cause for disciplinary proceedings against a judge.

Consequently, the following November, the judge referred two more questions to the Court of Justice in order to clarify the effects of the Kúria ruling and the legal nature of the disciplinary proceedings.[3]

By a new question, the fourth question in this case, the referring judge asked the Court whether Article 267 TFEU must be interpreted as precluding the supreme court of a Member State from declaring, following an appeal in the interests of the law, that a request for a preliminary ruling which has been submitted under Article 267 TFEU to the Court of Justice by a lower court is unlawful, without, however, altering the legal effects of the decision containing that request, and, if that is the case, whether the principle of the primacy of EU law must be interpreted as requiring that lower court to disregard such a decision of the supreme court.

By its fifth question, the referring judge asked, in essence, whether the second subparagraph of Article 19(1) TEU, Article 47 of the Charter and Article 267 TFEU must be interpreted as precluding disciplinary proceedings from being brought against a national judge for having made a request for a preliminary ruling to the Court under Article 267 TFEU.[4]

Judgment of the Court

In its judgment, delivered on 23^rd November 2021, the Court of Justice first started by considering both questions admissible.

Regarding the fourth question, the Court primarily recalled the importance of the preliminary ruling procedure within the judicial system established by the Treaties, specifically that it has the object of securing uniformity in the interpretation of EU law, thereby serving to ensure its consistency, its full effect, and its autonomy. In that regard, the Court stressed that national courts have the widest discretion in referring questions to the Court involving interpretation of relevant provisions of EU law, and that where a national court, before which a case is pending, considers that a question concerning the interpretation or validity of EU law has arisen in that case, it has the discretion or is under an obligation, under Article 267(3) TFEU, to request a preliminary ruling from the Court of Justice, and national rules imposed by legislation or case-law cannot interfere with that discretion or that obligation.[5]

Additionally, the Court considered that, even though the Kúria’s decision simply declares the request for a preliminary ruling unlawful and does not set aside the decision containing that request, nor requires the referring judge to withdraw the request and continue the main proceedings, by reviewing the legality of that request, the Kúria carried out a review of the initial request for a preliminary ruling similar to the review carried out by the Court of Justice in order to determine whether a request for a preliminary ruling is admissible. This review is, therefore, incompatible with Article 267 TFEU, since the assessment of those factors falls within the exclusive jurisdiction of the Court to rule on the admissibility of the questions referred for a preliminary ruling. Such a finding of illegality is, moreover, liable to weaken both the authority of the answers that the Court will provide to the referring judge and the decision he will give in the light of those answers.[6]

Furthermore, the Court also stated that the decision of the Kúria is likely to cause the Hungarian courts to refrain from referring questions for a preliminary ruling to the Court, in order to preclude their requests for a preliminary ruling from being the subject of an appeal. Therefore, limitations on the exercise by national courts of the jurisdiction conferred on them by Article 267 TFEU would have the effect of restricting the effective judicial protection of the rights which individuals derive from EU law.[7]

Finally, the Court held that, by virtue of the principle of the primacy of EU law, a Member State’s reliance on rules of national law, even of a constitutional order, cannot be allowed to undermine the unity and effectiveness of EU law. In accordance with settled case-law, the effects of this principle are binding on all the bodies of a Member State, without, inter alia, provisions of domestic law relating to the attribution of jurisdiction, including constitutional provisions, being able to prevent that. Therefore, it follows that the principle of the primacy of EU law requires a lower court to disregard a decision of the supreme court of the Member State concerned if it considers that the latter is prejudicial to the prerogatives granted to that lower court by Article 267 TFEU and, consequently, to the effectiveness of the cooperation between the Court and the national court established by the preliminary ruling mechanism.[8]

As regards the fifth question, it must be highlighted that both Hungary and the European Commission contended that this question was inadmissible, essentially considering that it was irrelevant for the purposes of resolving the dispute in the main proceedings and that there was not enough information concerning the effect of the commencement of the disciplinary proceedings on the continuation of the criminal proceedings before the judge.[9]

The Court concluded, however, that the fourth and fifth questions were closely connected, as it was because of the Kúria’s decision declaring the initial request for a preliminary ruling unlawful that disciplinary proceedings were initiated against the referring judge. Therefore, the referring judge was faced with a procedural obstacle, arising from the application of national legislation against him, which he must address before he can decide the main proceedings without external interference, and in complete independence. Thus, by his fifth question, the referring judge sought, in essence, to ascertain whether he would be able to refrain from complying with the decision of the Kúria when he ruled on the substance of the case in the main proceedings, without having to fear that, in so doing, the disciplinary proceedings that were brought against him, based on the Kúria’s decision, would be reopened.[10]

On the merits of the fifth question, the Court held that provisions of national law which expose national judges to disciplinary proceedings as a result of the fact that they have made a reference for a preliminary ruling to the Court of Justice cannot be permitted as the mere prospect of being the subject of disciplinary proceedings as a result of making such a reference, or deciding to maintain that reference after it was made, is likely to undermine the effective exercise by the national judges of their discretion to make a reference to the Court and of their role as judges responsible for the application of EU law.[11]

Conclusions

Although the Court’s conclusions were expected, one cannot minimize their importance in the current context. In the past years, judicial independence and the failure to comply with the primacy of EU law have become a main concern within the European Union, with growing signs of alarm in relevant Member States, such as Hungary, Poland and Romania.

In the 2021 Rule of Law Report, the European Commission confirmed those worries, by concluding that in 2021 “as regards judicial independence [in Hungary], the justice system has been subject to new developments adding to existing concerns (…). The new rules allowing for appointment of members of the Constitutional Court to the Supreme Court (Kúria) outside the normal procedure, have been put in practice, and enabled the election of the new Kúria President, whose position was also endowed with additional powers. This Kúria President was elected despite a negative opinion of the National Judicial Council. The recommendation to strengthen judicial independence, made in the context of the European Semester, remains unaddressed. This includes the need to formally reinforce the powers of the independent National Judicial Council to enable it to counter-balance the powers of the President of the National Office for the Judiciary”.[12]

As for Poland, in October 2021, following a request from the European Commission, the State was ordered by the Court to pay the Commission a daily penalty payment of €1.000.000, for not having suspended the application of the provisions of national legislation relating, in particular, to the areas of jurisdiction of the Disciplinary Chamber of the Supreme Court.[13] This came as a consequence of a previous order of the Court, also requested by the Commission, in July, where the Court required Poland to immediately suspend the application of several articles of the amended Law on the Supreme Court related to the powers of the its Disciplinary Chamber and to refrain from referring cases covered by those articles “to a court which does not meet the requirements of independence defined, in particular, in the judgment of 19 November 2019, A. K. and Others” [14]^/[15]

Also in Romania there have been problems regarding disciplinary procedures against judges in cases concerning the application of EU law. This February, the Court of Justice delivered yet another preliminary ruling, this time requested by a Romanian court of appeal, regarding national rules under which a judge may incur in disciplinary liability on the ground that it has applied EU law, as interpreted by the Court of Justice, departing from case-law of the Romanian Constitutional Court that is incompatible with the principle of the primacy of EU law. The Court of Justice stated that “the fact that national judges are not exposed to disciplinary proceedings or measures for having exercised the discretion to make a reference for a preliminary ruling to the Court under Article 267 TFEU, which is exclusively within their jurisdiction, (…) constitutes a guarantee that is essential to their independence”[16] and that “the triggering of the disciplinary liability of a judge as a result of a judicial decision should be limited to entirely exceptional cases (…) and be governed, in that regard, by objective and verifiable criteria, arising from requirements relating to the sound administration of justice, and also by guarantees designed to avoid any risk of external pressure on the content of judicial decisions (…)”.[17] The Court thus concluded that EU law precludes “national rules or a national practice under which any failure to comply with the decisions of the national constitutional court by a national judge can trigger his or her disciplinary liability”.[18]

Altogether, these cases highlight the importance of the Court’s continuous rulings regarding the respect for the primacy of EU law and judicial independence in EU Member States. However, it must also be acknowledged that some of the desired effects of the Court’s decisions remain to be seen.

As regards our case, the response of Hungarian authorities was, as expected, non-conformant. On the same day the Court of Justice delivered its judgment in case C-564/19, the Hungarian Kúria launched a press release affirming that itwas “examining the judgment of the Court of Justice”, but that, until further developments, its decision that the conformity of Hungarian law with EU law could not be the subject of a preliminary ruling procedure “is final and its interpretation of the law is binding”.[19]

As for Poland, the State has not yet paid any amount with respect to the fine imposed by the Court in case C- 2014/21 R, despite having already received a formal notice to do so, nor it has repealed its controversial amended Law on the Supreme Court.

The European Commission has, nevertheless, warned that, if necessary, it will withhold EU funds from Poland to recover the fine. This solution may actually prove to be the most effective and has recently received a boost from the Court, after the judgments in cases C-156/21 (Hungary v. European Parliament and Council) and C-157/21 (Poland v. European Parliament and Council), which confirmed the compatibility of the “rule of law mechanism” with EU law, thus allowing future receipts of financing from the Union budget to be subject to the respect by the Member States for the principles of the rule of law.[20]

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^[1] Regarding judicial independence in Hungary and Poland, see the comments of the President of the European Association of Judges, José Igreja Matos, in 2019, available at:  https://officialblogofunio.com/2019/11/18/judicial-independence-in-poland-and-hungary-going-going-gone-preliminary-requests-and-disciplinary-procedures-a-shocking-development/

[2] Judgment of the Court of 23 November 2021, IS, C-564/19, ECLI:EU:C:2021:949, paragraphs 25-38.

[3] Judgment of 23 November 2021, paragraphs 39-50.

[4] Judgment of 23 November 2021, paragraph 51.

[5] Judgment of 23 November 2021, paragraphs 67-70.

[6] Judgment of 23 November 2021, paragraphs 71-74.

[7] Judgment of 23 November 2021, paragraphs 75-76.

[8] Judgment of 23 November 2021, paragraphs 78-81.

[9] Judgment of 23 November 2021, paragraph 84.

[10] Judgment of 23 November 2021, paragraphs 85-88.

[11] Judgment of 23 November 2021, paragraphs 89-93.

[12] 2021 Rule of Law Report – Country Chapter on the rule of law situation in Hungary, European Commission, 20 July 2021 (SWD (2021) 714 final), p. 1, available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52021SC0714

[13] Order of the Vice-President of the Court of 27 October 2021, European Commission v. Republic of Poland, Case C‑204/21 R, ECLI:EU:C:2021:878.

[14] Judgment of the Court of 19 November 2019, A. K. and Others (Independence of the Disciplinary Chamber of the Supreme Court), joint cases C-585/18, C-624/18 and C-625/18, ECLI:EU:C:2019:982.

[15] Order of the Vice-President of the Court of 14 July 2021, European Commission v. Republic of Poland, Case C‑204/21 R, ECLI:EU:C:2021:593, paragraph 255.

[16] Judgment of the Court of 22 February 2022, RS, Case C‑430/21, ECLI:EU:C:2022:99, paragraph 85.

[17] Judgment of 22 February 2022, paragraph 86

[18] Judgment of 22 February 2022, paragraph 87.

[19] Statement of the Kúria, of 23 November 2022, available at (in Hungarian): https://kuria-birosag.hu/hu/sajto/kuria-kozlemenye-az-europai-unio-birosaga-c-56419-szamu-ugyben-hozott-itelete-vonatkozasaban

[20] Judgment of the Court of 16 February 2022, Hungary v. European Parliament and Council of the European Union, Case C‑156/21, ECLI:EU:C:2022:97; Judgment of the Court of 16 February 2022, Poland v. European Parliament and Council of the European Union, Case C‑157/21, ECLI:EU:C:2022:98.

Picture credits: qimono.