Does Poland infringe the principle of effective judicial protection? Recent developments in the CJEU


Femke Gremmelprez,
PhD Researcher and Academic Assistant, Department of European, Public and
International Law, Research group Ghent European Law Institute
Despite the Court of Justice’s
prominent role in the enforcement of EU law via the infringement procedure of
Article 258 TFEU and the preliminary ruling procedure of Article 267 TFEU, the Court
of Justice has predominantly been left out the enforcement of EU values, and
the rule of law in particular. The EU Treaties remain silent with respect to an
explicit competence for the Court of Justice to reinforce the rule of law in
case deviant behaviour of Member States emerges. In addition, rule of law
deficiencies have been prominently dealt with within the political discourse of
dialogue in the context of the Rule of Law Framework and the Article 7 TEU
procedure. However, the Court of Justice’s Associação
Sindical dos Juízes Portugueses
judgment
of 2018 has been a turning point in this regard. This blogpost will comment on
the hearing in the Commission v. Poland
case
of 8 April 2019 (C-192/18) (hereafter ‘Ordinary Courts case’) and the opinion
in the Commission v. Poland case
rendered on 11 April 2019 (Case C-619/18) (hereafter ‘Supreme Court case’), two
infringement procedures launched by the Commission before the Court of Justice
after the Associação Sindical dos Juízes
Portugueses
judgment.
The initial impulse of the Court of Justice
Although the outcome of the Associação Sindical dos Juízes Portugueses
judgment as such cannot be considered to be ground-breaking, the reasoning of
the Court of Justice, in contrast, is all the more so. The Court of Justice,
after all, established in this judgment that national courts which may be
called upon to apply EU law, have to guarantee an effective judicial protection
in accordance with the second subparagraph of Art. 19(1) TEU (para. 40 of the judgment).
This ‘may’ formulation suggests that this applies to any court within the
meaning of EU law. As Pech and Platon stipulate, “most if not all national
courts are, at least theoretically, in this situation”, and therefore have to
fulfil the requirement of effective judicial protection (see L. Pech and S.
Platon, “Rule of Law Backsliding in the EU: the Court of Justice to the rescue?
Some thoughts on the ECJ ruling in Associação
Sindical dos Juízes Portugueses
”, on
this blog
).
As a consequence of the Associação Sindical dos Juízes Portugueses
judgment, judicial independence has become a criterion verifiable by the Court
of Justice, and as such confirmed as essential in the enforcement of the rule
of law (para. 40 of that judgment; see also last year’s judgment in LM (discussed here),
para. 48). The Court of Justice has thereby shown itself committed to upholding
the rule of law within the EU by operationalising the rule of law as enshrined
in Article 2 TEU, reinforcing this value with a reference to the principle of
sincere cooperation as enshrined in Article 4(3) TEU. This is necessary in
order to achieve the proper functioning of the judicial cooperation system
pursuant the preliminary reference procedure under Article 267 TFEU (Associação Sindical dos Juízes Portugueses,
paras. 41-43). Judicial independence not only presupposes that judges are
remunerated sufficiently, but in light of the rule of law crisis, more
importantly, also the protection against the removal from the office of the
members of the national courts (Associação
Sindical dos Juízes Portugueses
, para. 45).
Poland has made several reforms
regarding the functioning and organisation of the Constitutional Tribunal, the
Supreme Court and the ordinary judiciary whereby the independence of these
bodies has been endangered (for an extensive overview of all the measures
Poland has adopted over the last two years, see the Commission’s Reasoned
Proposal
in accordance with Art. 7(1) of the Treaty on European Union
regarding the rule of law in Poland. In particular, the Polish government has
adopted a law on the basis of which the general retirement age of the Supreme
Court judges and the judges of the ordinary courts is lowered from 70 to 65,
entailing that all judges currently in office who attained the age of 65 years,
or will attain that age within 3 months from the entry into force of the law,
will be retired. Following the reasoning of the Court of Justice in Associação Sindical dos Juízes Portugueses,
this measure would – to use the Court of Justice’s formulation – “impair the independence”
of relevant courts and their members and as such be held incompatible with Art.
19(1) TEU, because these members of the judiciary are removed from their
offices before the end of their initial term.
The revolutionary Associação Sindical dos Juízes Portugueses
judgment is the initial impulse of a series of cases before the Court of
Justice within the context of the compatibility of national measures concerning
the national judicial system with the standards following Article 19 TEU. Both
the Commission, in the form of infringement procedures pursuant to Article 258
TFEU, and the national judges, in accordance with the preliminary ruling
procedures as foreseen in Art. 267 TFEU, have raised issues about developments in
Poland (see for instance the infringement procedures respectively lodged by the
Commission against Poland on 15 March 2018 (Case C-192/18, the Ordinary Courts case) and on 2 October
2018 (Case C-619/18, the Supreme Court
case), and the preliminary questions respectively referred by Polish judges on 9
August 2018 (Case
C-522/18
), on 3 September 2018 (Case
C-558/18
) and on 5 September 2018 (Case
C-563/18
).
The hearing in the Ordinary
Courts
case
On the 8th of April 2019, the
hearing of the Ordinary Courts case took place before the Grand Chamber of the
Court of Justice. This case concerns, in particular, the Commission’s claims
that the Polish measures lowering the retirement age applicable to the ordinary
court judges, on the one hand, and granting the Minister for Justice the
discretionary power to decide whether or not to extend the active service of
the judge concerned, on the other hand, are contrary to Article 19 TEU, read in
conjunction with Article 47 EU Charter (the right to a fair trial before an
independent court). Although the Commission also raised the issue regarding the
distinction between the retirement age for men and women working as a judge in
its infringement action, the Court of Justice asked the parties to focus solely
on the first plea during the hearing.
The Commission started with
emphasising the importance of the adherence to the principle of effective
judicial protection enshrined in Artilce 19 TEU, which is further clarified by
Article 47 EU Charter as the right to be heard by independent and impartial
judges, because the principle of effective judicial protection is not only the
very essence of the rule of law, but also the very basis of the EU. Indeed, the
Court decided already in the Achmea
case (discussed here)
that the EU judicial system, consisting of the Court of Justice and the
national courts as EU courts, aims at ensuring the uniformity, effectiveness
and autonomy of EU law (Achmea, para.
37).
Non-adherence to the principle of
effective judicial protection would affect these key characteristics of EU law
and the EU as such. Therefore, the contested measures violate the principle of judicial
independence, and, thus, also the principle of effective judicial protection as
foreseen by Article 19 TEU. In particular, as the Commission clarified by
answering a related question posed by the Judge Rapporteur, the discretion of
the Minister of Justice is problematic in the light of Article 19 TEU since he
or she can decide to grant or refuse an extension of the active service of a judge
beyond the retirement age without clear criteria, without motivation, without a
possible appeal and without a clear time framework of the prolongation period.
Referring back to the case law of the European Court of Human Rights with
regard to Article 6(1) ECHR, the Commission invokes that this can be qualified as
a means to put pressure on the judiciary, which constitutes an infringement of
Art. 19 TEU.
Furthermore, the Commission
reminded the Court of Justice of its own interim measures order
of 17 December 2018 in the Supreme Court
case (see also the interim measures order
of November) in which it refuted that the Commission based itself on mere
hypotheses and it held that the contested provisions could lead to a violation
of Article 19(1) TEU (paras. 55-56 of that order). Nevertheless, the Polish
representative argued that the contested provisions of the Polish law have been
amended in compliance with EU law, as a consequence of which the Commission
should withdraw its application of Article 258 TFEU. Moreover, the Polish
representative emphasised that the Minister of Justice has no wide scope of
discretion, as the Minister considers the workload of the other ordinary courts
and the need for human resources in other courts when granting or refusing an
extension of the activity of an ordinary court judge.
At the same time, the Polish
representative acknowledged, in response to a question raised by the Judge
Rapporteur, that the Minister of Justice does not have to motivate his decision
and that there is no judicial review against this decision. During the hearing,
the President of the Court noted that the lack of motivation makes the
situation all the more suspicious. The Judge Rapporteur also appeared puzzled
on how the retirement of a certain judge will remedy the workload in other
courts. Instead she suggested the transfer from personnel as a possible
solution. The Polish representative explicitly rejected this “opinion” of the
Judge Rapporteur by stating that the Polish law does not foresee in such a
possibility.
More fundamentally, the Polish
representative submitted that the Commission’s infringement action is an
unjustified interference in the national judicial system of a Member State,
which is a purely internal affair. The lowering of the retirement age cannot be
considered to be a removal of judges from their office since it would simply be
an exception to the constitutional rule regarding the general retirement age,
justified by the need of effective allocation of judges among the various
ordinary courts in Poland.
Following this argument the
President requested the Commission to divulge on whether the competences
conferred on the EU by virtue of Article 19(1) TEU can be limited considering
the autonomy of the Member States to organise its judicial system. The
Commission conceded that it had to respect the attribution of competences and
the autonomy of the Member States regarding the functioning and organisation of
its judiciary but equally noted that Member States have to guarantee some
minimum standards that have to be adhered to, as the Court of Justice has
specified in its previous case law, such as the Associação Sindical dos Juízes Portugueses and LM judgments. The Polish representative, nevertheless, objected the
use of double standards regarding the principle of judicial independence by the
Court of Justice, since the renewal of a judge’s mandate at the Court of
Justice for 6 years entails, similar to the extension of a Polish ordinary
court judge, a decision of the governments.
Of course, the decision of Member
States’ governments with regard to the (re)appointment of the Court of Justice
judges can hardly be compared to the discretionary power of the Minister of
Justice to grant or refuse an extension of the active service of an ordinary
court judge. Admittedly, the appointment procedure for judges at the Court of
Justice is not completely transparent (see for instance M. A. Simonelli, “Quod
Licet Iovi non Licet Bovi. The Appointment Process to the Court of Justice and
the Reform of Judiciary in Poland”, on the European
Law Blog
). Yet, in accordance with Article 253 TFEU and Article 255 TFEU,
criteria, such as the independence beyond doubt and the right qualifications,
have to be considered and a(n) (re)appointment is decided by common accord of
the governments of the Member States. In addition, a decision will be taken
after the consultation of an expert panel consisting of former members of the
Court of Justice and the General Court, members of national supreme courts and
lawyers of recognised competence.
Advocate General Tanchev’s approach on upholding the rule of law
It is now up to the Advocate
General to deliver his opinion in the Ordinary Courts case, expected on the 20th
of June 2019, before the Court of Justice will render a decision. However, his opinion
in the Supreme Court case was
released on the 11th of April 2019 and already sheds light on the outcome of
his opinion in the Ordinary Courts case. The Supreme Court case deals with the Polish
measures lowering the retirement age of the Supreme court judges from 70 to 65
years of age and granting the President of Poland the power to extend the
active service of Supreme court judges. As a result it is very much comparable
to the Ordinary Courts case.
As compellingly highlighted by
Advocate General, the Supreme Court case will be the first infringement action
in which the Court of Justice has to rule on the compatibility of measures
adopted by Member States regarding the organisation of the national judicial
system with the standards foreseen in Art. 19(1) TEU (Opinion, para. 47). According
to the Advocate General, the Court’s decisions in these currently pending cases
will strengthen the respect for the rule of law by Member States and will
further offer guidance on the standards upon which the rule of law is based.
The fact that an Article 7(1) TEU procedure has been invoked against Poland
does not change the admissibility of the case. Notably, the Advocate General
applied a clear delimitation between both procedures, Article 258 TFEU being a
legal procedure and Article 7 TEU a political procedure, as they have a
different scheme and purpose (Opinion, para. 50).
Confirming the Associação
Sindical dos Juízes Portugueses
case: the verification of rule of law
compatibility falls within the scope of Article 19(1) TEU
The Advocate General examines the
scope of application of Article 19(1) TEU and Article 47 EU Charter separately,
as Advocate General Saugmandsgaard Øe also proposed in his opinion
in the Associação Sindical dos Juízes
Portugueses
case. Yet, the Court of Justice reformulated the question in
the Associação Sindical dos Juízes
Portugueses
case by leaving out a reference to Article 47 EU Charter. The Court
of Justice merely referred to Article 47 EU Charter in order to explain that the
principle of effective judicial protection requires that everyone has a right
to an effective remedy before a tribunal which is independent and impartial.
By relying merely on Article
19(1) TEU, the Court of Justice refrained from opening a Pandora’s box on the
discussion of the scope of application of the Charter. Although some
commentators have argued to revisit the scope of application of the Charter, as
set out in its Article 51, an extensive reading of this provision could be
regarded as an unjustified intervention in the Member States’ national affairs
endangering the sovereignty of national constitutional courts to observe the
rule of law and fundamental rights enshrined in the national constitutions (T. von
Danwitz, “The Rule of Law in Recent ECJ Jurisprudence” in W. Schroeder (ed.), Strengthening
the Rule of Law in Europe, from a common concept to mechanisms of
implementation
, Hart Publishing, Portland, 2016, (155)165).
Indeed, this ‘national
sovereignty’ argument has several times been repeated by the Polish representative
during the hearing of the Ordinary Courts
case. During the hearing however, the Commission highlighted that Article 47 EU
Charter is merely called upon to help interpret the principle of effective
judicial protection of Article 19(1) TEU. Moreover, the infringement action
focuses on a breach of Article 19(1) TEU as a consequence of the Polish
measures lowering the retirement age of the ordinary courts judges and the
discretionary power of the Minister of Justice to decide on a possible
extension of judicial mandates. The emphasis then is on the material scope of
application of Article 19(1) TEU. In this regard, Advocate General Tanchev argues
that Member States have the obligation to guarantee the full application of EU
law and the judicial protection of individuals under Art. 19(1) TEU, which
entails that measures impairing the independence of national courts hinder the EU
Courts from carrying out their mandate under Article 19(1) TEU (Opinion in Commission v. Poland (Supreme Court case), para. 59). The
Court of Justice thus has the competence to verify whether measures adopted by
a Member State are in line with their obligations resulting from Art. 19(1)
TEU.
As the Polish Supreme Court – mutatis mutandis the Polish ordinary
courts – may rule on questions concerning the application or interpretation of
EU law, and the infringement action concerns an alleged breach of the rule of
law, concretised by Article 19 TEU, the infringement action brought by the
Commission before the Court of Justice in the Supreme Court case – mutatis mutandis the Ordinary Courts case – should be deemed admissible
according to Advocate General Tanchev (Opinion in Commission v. Poland (Supreme
Court
case), para. 63).
Poland infringes the rule of law as concretised by the principle of
effective judicial protection
Following this finding of
admissibility, Advocate General Tanchev opines that Poland infringes Article
19(1) TEU on two accounts. Firstly by violating the principle of irremovability
of judges and by violating the principle of judicial independence by granting
the President of Poland the discretionary power to extend the active service
upon the retirement age of a judge on the other hand.
Remarkably the Commission did not
raise any arguments with regard to the irremovability during the hearing of the
Ordinary Courts case, as it focussed
on the discretionary power of the Minister. While it considered the lowering of
the retirement age of the ordinary courts judges a relevant aspect of the
overall discussion, it did not consider it as a breach of Article 19(1) TEU as
such. In contrast the Advocate General stressed the principle of irremovability
as one of the guarantees essential to judicial independence.
It is, furthermore, noteworthy
how the Advocate General in the Supreme
Court
case is guiding the Court of Justice in defining the principle of irremovability
by referring to soft law created by other international bodies, such as the
Council of Europe, the International Bar Association, and the United Nations. In
addition, the Advocate General highlights the value of such non-binding norms, as
they imply normative consensus of rules and principles shared by the Member
States or other jurisdictions which provide a useful reference for the Court of
Justice (Opinion in Commission v. Poland
(Supreme Court case), footnotes
51-52).
Namely, this principle of
irremovability entails that a judge should have “a guaranteed tenure until a
mandatory retirement age or the expiry of their term of office, and can be
subject to suspension or removal from office in individual cases only for the
reasons of incapacity or behaviour rendering them unfit for office. Early
retirement should be possible only at the request of the judge concerned or on
medical grounds, and any changes to the obligatory retirement age must not have
retroactive effect” (Opinion in Commission
v. Poland
(Supreme Court case), para.
72). Moreover, in Associação Sindical dos
Juízes Portugueses
the Court of Justice assessed the circumstances of the
case, such as the impact on the composition of the court, the nature of the
legislation adopted in respect of the members of the court concerned, and the
duration of the application of the legislation, to verify whether the lowering
of the remuneration level was violating the principle of judicial independence.
Advocate General Tanchev uses these factors to verify whether the lowering of the
retirement age is breaching the principle of irremovability of judges (Associação Sindical dos Juízes Portugueses,
paras. 46-50; Opinion in Commission v.
Poland
(Supreme Court case), para.
76).
Furthermore, the Advocate General
adds that a sudden and unforeseen removal of a large number of judges creates
difficulties in terms of public confidence. This argument could also be used to
refute the closing remark of the Polish representatives during the hearing of
the Ordinary Courts case, namely that
the infringement procedure brought by the Commission is counterproductive and
confuses the Polish judicial system. By lowering the retirement age and
obliging a large number of judges to retire before the end of the initial
termination of their active service, the Polish government precisely creates
public confusion and uncertainty.
In respect to the discretionary
power of the Polish President to extend the term of the office upon the
retirement age of the Supreme court judge, Advocate General Tanchev holds that also
this Polish measure is contrary to the principle of judicial independence
enshrined in Article 19(1) TEU. In particular, the external aspect of judicial
independence is violated, since the measure exposes the Supreme court judges to
external intervention and pressure from the Polish President considering the
link between the lowering of the retirement age and the requirement to request
an extension of the retirement age to the President (Opinion in Commission v. Poland (Supreme Court case), para. 89). Applying
these elements mutatis mutandis to
the measure granting the Minister of Justice the discretionary power to grant
or refuse an extension of the retirement age of the ordinary court judges, it
seems obvious that the Advocate General would come to the same conclusion in his
opinion on the Ordinary Courts case. The
lack of clear criteria for granting an extension and the absence of judicial
review against a refusal of the extension without a persuasive explanation of the
Polish representative would a fortiori
lead to the existence of external intervention and pressure from the Minister
of Justice, contrary to Article 19(1) TEU.
Will the assist of the Court of Justice lead to the winning goal in the
rule of law crisis?
Consequently, the opinion of
Advocate General Tanchev in the Ordinary
Courts
case will probably not come as a surprise and will most likely be
comparable, if not similar, to his opinion in the Supreme Court case. Considering the outcome of the Associação Sindical dos Juízes Portugueses
case, it can be expected that the Court of Justice will act upon its judgment
and ultimately take a firm stance in the rule of law crisis. As the political
tools to enforce the rule of law are unable to cope with the rule of law
deficiencies in certain Member States, the ‘legal route’ should be further
deployed by the Court of Justice in light of the pending infringement and
preliminary ruling procedures. Although much more has to be done by Poland in
order to restore the independence of the judiciary in compliance with Article
19(1) TEU, the Court of Justice’s intervention by means of the interim measures
in the Supreme Court case led to the
reinstatement of the Supreme Court judges who were forced into early retirement.
Barnard & Peers: chapter 9,
chapter 10



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