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.
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LM judgment – effective judicial protection as general principle and fundamental right

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 by Joana Covelo de Abreu, Editor

2018 is the year when effective judicial protection undertakes several new developments.

In this sense, the Associação Sindical dos Juízes Portugueses’ judgment (ASJP) set the tone to great developments under effective judicial protection dimension concerning the independence of courts. In this decision, the Court of Justice understood effective judicial protection as not only a fundamental right, but also a general principle of EU law. In fact, the Court of Justice preferred to set this jurisprudence based on the general principle – as enshrined Article 19 (1) (2) TFEU – because that was the way to liberate effective judicial protection from the methodical difficulties brought by Article 51 CFREU.

In this decision, the Court of Justice reasoned based on Article 2 TEU (concerning the values of the EU), Article 4 (3) TEU (principle of sincere cooperation) and Article 19 (1) TEU, emphasising Article 19 (1) TEU as a “concrete expression to the value of the rule of law stated in Article 2 TEU” and acknowledging the integrated nature of the EU judiciary system – composed both by ECJ as EU organic court and national courts as EU functioning courts.

But when we thought the Court of Justice had already enough developed effective judicial protection, we are surprised with the LM judgment (case C-216/18 PPU).

This decision, issued on the July 25th 2018, was developed under a preliminary reference made in order to interpret the limits concerning the enforcement of three European Arrest Warrants. They aimed at arresting and surrendering LM to Polish authorities for the purpose of conducting criminal prosecutions (concerning trafficking in narcotic drugs and psychotropic substances).
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