Judicial independence in Poland and Hungary – Going, Going, Gone? Preliminary Requests and Disciplinary Procedures – A shocking development

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 by José Igreja Matos, President of the European Association of Judges

1. Stating the obvious

The reference for a preliminary ruling, provided for Article 19(3)(b) of the Treaty on European Union and Article 267 of the Treaty on the Functioning of the European Union is an essential instrument for the European Union and, in particular, for national judges.

It is aimed to guarantee the uniform interpretation and application of EU law by offering to the courts and tribunals of Member States a procedure to acquire from the Court of Justice of the European Union a preliminary ruling concerning the interpretation of EU law or the validity of acts adopted by the institutions of the Union.

As easily predictable, the impact of a preliminary ruling procedure in EU legal system is immense also because the rulings of European Court of Justice (ECJ) are assumed as generally binding.

The ECJ itself does not have a power to enforce the accurate application of EU law; this is the reason why national courts or tribunals are obliged to bring the matters in question before the Court as frontrunners of the application of EU law.

The reference for a preliminary ruling is the only way for the national judges to directly convey with ECJ. This procedure helps the ECJ control on how the national courts apply EU law providing the uniformity and certainty essentials to the success of our Union.

Another aspect of major significance could be furthermore underlined: the preliminary ruling also ensures the protection of the rights of individuals. EU laws, in particular the criminal law, fall to be interpreted in accordance with the Charter of Fundamental Rights. The Article 6(1) of the Treaty of European Union affirms: “The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union … which shall have the same legal value as the Treaties”. In general terms, the Charter applies to Member States when they implement Union law (Case C-292/97 Karlsson and Others); therefore, the interpretation of the Charter provisions tends to be, if not now, in the foreseeable future, a fertile ground for the use of the preliminary ruling procedures.

The Member States are bound to respect fundamental rights in judicial cooperation, for instance, if a Member State is extraditing someone to another Member State in accordance with the scheme established by the European Arrest Warrant Framework Decision.
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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.
Continue reading “Building the ECJ puzzle on judicial independence in a Union based on the rule of law (Commission v Poland in the light of ASJP)”