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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Editorial of June 2019

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 by Alessandra Silveira, Editor
 and Sergio Maia, Managing Editor


Strengthening the rule of law in the EU on the D-Day 75th Anniversary

On 3 April 2019, the European Commission opened a debate to strengthen the rule of law in the EU and setting out possible avenues for future action. The Commission invited the European Parliament, the European Council and the Council, and the Member States as well as relevant stakeholders, including legal networks and civil society, to reflect on this issue and contribute with concrete ideas on how the rule of law toolbox could be enhanced in the future. Building on this reflection process and the ongoing debate, the Commission will return to this issue with its own conclusions and proposals in June 2019. As first Vice-President Frans Timmermans said, the Union’s capacity to uphold the rule of law is essential, now more than ever. First because it is an issue of fundamental values, a matter of “who we are”. Second, because the functioning of the EU as a whole depends on the rule of law in all Member States. The confidence of all EU citizens and national authorities in the legal systems of all other Member States is vital for the functioning of the whole EU as “an area of freedom, security and justice without internal frontiers”.[i]

On this 6 June 2019, D-Day 75th Anniversary, we add more one reason:  European integration emerged as an anti-fascist response to the collapse of the rule of law in the period between the two World Wars. What is important to highlight now is that all the legal-constitutional construction of the post-war in Europe is based on the idea that democracy, in the absent of the rule of law, becomes the tyranny of majority. Without the rule of law, we have nothing, only the nationalist populism and its disastrous consequences. Nationalist populism knows that, being a form of political communication that attempts to reach its goals by breaking the dialectic connection between democracy and rule of law.  So, as the rule of law can be improperly used, the main question in this context is to know what is the substance of the Union based on the rule of law.
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Editorial of April 2019

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 by Sophie Perez Fernandes, Editor


First steps in a literacy campaign for a European political community – what is the EU based on the Rule of Law?

When one is asked to approach the legal dimension in a panel on the theme «European political community and cosmopolitan literacy»[i], one is confronted with the vastness and multiplicity of the subject, the critical nature of its importance and the overwhelming responsibility of the task… Underlying it are crucial questions about how to approach – in the sense of conceiving, accepting and, above all, living – the European Union as our collective destiny. And the challenge is also to discern the role of the Law in this endeavour aimed at building, revealing the meaning and living in a European political community.

That said, before embarking on an EU literacy campaign, a preliminary step would likely be to undertake what could be called a literacy campaign of the Law. And the reason is obvious: the European integration process is, above all, a process of integration through Law. From the very beginning, the European integration process has sought to «unite the peoples of Europe», to employ the terminology of the Treaties, not by the force of weapons, but by the force of norms – which, to a certain extent, consequently converts jurists into soldiers of the European integration process and of building a European political community – hence the overwhelming responsibility…
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Editorial of October 2018

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 by Vlad Jurje, PhD candidate and Lecturer at Universidad Rey Juan Carlos


Poland v. Fundamental Rights?

A new episode concerning to the Rule of Law in Poland has recently taken place and the European Commission is very concerned. After the recent reform of the National Council of the Judiciary[i], the Polish Parliament has the capacity to decide when to appoint the member judges that compose it. A fact that seriously undermines the norms and international standards on which the independence of the judicial power in Europe is regulated.

We also highlight the instability that has arisen from the reform of the Constitutional Court in Poland because the interference that the Executive and the Legislative branches have committed put at risk the independence of the judicial power. According to the new law which has come into force, out of the 72 current members that form part of the Supreme Court 27 could be forced to retire, since the retirement age was changed: instead of retiring at 70, the new law would remove men at 65 and women at 60.
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A Union based on the rule of law beyond the scope of EU law – the guarantees essential to judicial independence in Associação Sindical dos Juízes Portugueses

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 by Alessandra Silveira, Editor 
 and Sophie Perez Fernandes, Junior Editor


On 27 February 2018, the European Court of Justice (ECJ) delivered its judgment in the Associação Sindical dos Juízes Portugueses case (C-64/16), a judgment which, for its relevance for effective judicial protection and the rule of law in the EU, is already compared with Les Verts (here).

At the origin of the request for a preliminary ruling is 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). These measures were adopted on the basis of a Portuguese law of 2014 putting in place mechanisms for the temporary reduction of remuneration (and the conditions governing their reversibility) of a series of office holders and employees performing duties in the public sector, including members of the judiciary. As the Advocate General Saugmandsgaard Øe pointed out (here), 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.”

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Editorial of January 2018

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by Sergio Maia, Managing Editor


The European Pillar of Social Rights has taken the first steps – and now how far will it make the Union walk?

One year after the end of the public consultation period of the European Pillar of Social Rights (EPSR) that preceded its formal presentation and adoption, it is an inviting, seemingly appropriate time to remark its concrete meanings and consequences. The EPSR and its political and legislative initiatives (such as the adoption of a clarification of the Working Time Directive or the proposals for a Directive on Work-Life Balance and for a Directive on Transparent and Predictable Working Conditions) have started to redesign the materialisation of the social model underlying the public reason of the Union. Those public reason and social model are embedded in Article 3(3), TEU; Article 9, Article 151, TFEU, just to name a few.

According to that set of rules, the Union is bound to full employment, social progress, the fight against exclusion, the promotion of social justice, social protection and cohesion. To sum up, in other words, there exists, I believe, a social democratization rationale behind the objectives of the integration to which the exercise and the enjoyment of citizenship rights and fundamental rights protection are directly associated. This social democratization drives (and must do so) the fulfilment of the economic freedoms as well as the rights enshrined in the CFREU. Without social democratization, the European citizenship and its fundamental rights are worth very little. The case-law of the CJEU in Dano, Alimanovic and Commission v. UK proves just that.

The two aforementioned spindles are in the core of the Union based on the rule of law as the fruition of those rights – i.e., social model – shapes the purposes of the public reason of the European polity. Then, how does the Pillar promote the European social model?

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State of the Union 2017 scenario: with full breath ahead

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by Sergio Maia, Managing Editor

On September, 13th President Jean-Claude Juncker addressed the annual speech of the State of the Union (here). Against the background of the White Paper on the Future of Europe and in solid dialogue with the European Parliament, President Juncker presented some new ideas as well as highlighted previous proposals. More importantly, the European Commission demonstrates that it is effectively holding the position of initiative with which the Treaties empower it – in close democratic discussion with the Parliament.

Here we intend to comment the first impressions about key aspects of some of the topics the Juncker Commission brought to life and debate.

1. After valuing the European institutions role on “helping the wind change” for growth, job creation and control of public deficits, he expressed the will to strengthen the European trade agenda by negotiating international agreements. It seems that after the cases of the Paris agreement (on environmental issues) and the uncertainty around TTIP, there are two messages underlying this point. The first is to make the EU the main business platform worldwide (Canada, Japan, Mexico, South America and the proposal to open negotiations with Australia and New Zealand). Reliable and stable, Europe wants to be the ideal partner and the first in line in global economy. With many interrogations amounting over the US, this also seems to be an external policy strategy (“we are not naïve free traders”, he said). Alongside investment, the idea is to make the industry stronger and more competitive as well as being the leader in fighting climate change. More and more signals of the projection of the leadership of the Union in the world.

2. As far as migration, external borders and the Schengen area are concerned, migration will remain a priority. So will the support to Italian authorities who are “saving Europe’s honour in the Mediterranean”. In parallel, the Commission wants to work on legal pathways to end illegal activities like trafficking at the same time it calls for solidarity in welcoming refugees. This is a novelty. After Germany’s policy of opening doors, now the EC looks like the new leading actor in this matter. Contrary to the position of his political family, which never clearly came out, President Juncker took on a stand closer to the approach of S&D. It will be interesting to follow the next parliamentary debates and what the EPP’s reaction will be, even though its following remarks were in a more agreeable way to these terms. Finally, suggesting that Romania, Bulgaria and soon Croatia should become members of the Schengen area is a political movement on a critical region where Russia has been growingly active. The idea seems to be to overpower its influence there – the direct reference of the 100th anniversary of Estonia, Latvia, Lithuania and Romania proves just that.

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