Femke Gremmelprez, PhD Researcher and Academic Assistant, Department of European, Public and International Law, Research group Ghent European Law Institute
While the Court of Justice plays a significant role in enforcing EU law through infringement and preliminary ruling procedures (Articles 258 and 267 TFEU, respectively), it has largely been excluded from enforcing EU values, particularly the rule of law. The EU Treaties lack explicit provisions granting the Court of Justice the power to address rule of law breaches by Member States. Additionally, such deficiencies have primarily been addressed through political dialogue within the Rule of Law Framework and the Article 7 TEU procedure. However, the Court of Justice’s 2018 Associação Sindical dos Juízes Portugueses judgment marked a turning point. This piece will examine the hearing in Commission v. Poland (C-192/18), focusing on “Ordinary Courts,” and the opinion issued in Commission v. Poland (Case C-619/18) concerning the “Supreme Court,” both infringement proceedings initiated by the Commission after the Associação Sindical dos Juízes Portugueses judgment.
Early Action from the Court of Justice
The significance of the Associação Sindical dos Juízes Portugueses judgment lies not in its outcome, but in its reasoning. The Court established that national courts handling EU law must ensure effective judicial protection as per Article 19(1) TEU, second subparagraph (paragraph 40). The wording suggests this applies to any court within the EU legal framework. As Pech and Platon note, “most if not all national courts are, at least theoretically, in this situation,” and therefore obligated to provide effective judicial protection.
Consequently, judicial independence has become a criterion for the Court of Justice to assess, reinforcing its importance for the rule of law (paragraph 40; see also last year’s LM judgment, paragraph 48). The Court demonstrated its dedication to upholding the rule of law within the EU by operationalizing Article 2 TEU, further strengthening it through Article 4(3) TEU’s principle of sincere cooperation. This is crucial for the judicial cooperation system and the preliminary ruling procedure under Article 267 TFEU (Associação Sindical dos Juízes Portugueses, paragraphs 41-43). Beyond fair remuneration, judicial independence, especially in light of the current rule of law crisis, requires protection against removal from office (Associação Sindical dos Juízes Portugueses, paragraph 45).
Poland’s reforms concerning the Constitutional Tribunal, Supreme Court, and ordinary judiciary have jeopardized the independence of these bodies. The Polish government lowered the retirement age for Supreme Court and ordinary court judges from 70 to 65, impacting judges currently in office or reaching 65 within three months of the law’s enactment. This measure, according to the Associação Sindical dos Juízes Portugueses judgment, could be interpreted as “impairing the independence” of these courts and their members, thus violating Article 19(1) TEU by removing judges before their initial term ends.
The groundbreaking Associação Sindical dos Juízes Portugueses judgment spurred a series of cases before the Court of Justice concerning the compatibility of national judicial system measures with Article 19 TEU standards. Both the Commission, through Article 258 TFEU infringement procedures, and national judges, via Article 267 TFEU preliminary rulings, have raised concerns regarding developments in Poland. Examples include infringement proceedings against Poland on March 15, 2018 (Case C-192/18, “Ordinary Courts”) and October 2, 2018 (Case C-619/18, “Supreme Court”), as well as preliminary questions referred by Polish judges on August 9, 2018 (Case C-522/18), September 3, 2018 (Case C-558/18), and September 5, 2018 (Case C-563/18).
Hearing the Ordinary Courts Case
The Grand Chamber of the Court of Justice held the Ordinary Courts case hearing on April 8, 2019. The Commission argued that Poland’s lowered retirement age for ordinary court judges and the Minister of Justice’s discretion to extend service violate Article 19 TEU, read in conjunction with Article 47 of the EU Charter (right to a fair trial). While the Commission also raised concerns about the retirement age difference between male and female judges, the Court requested the parties focus solely on the first plea.
The Commission stressed the importance of effective judicial protection under Article 19 TEU, further defined by Article 47 of the EU Charter as the right to an independent and impartial tribunal. This principle is not just central to the rule of law but also forms the foundation of the EU itself. In the Achmea case, the Court determined that the EU judicial system, comprising the Court of Justice and national courts, ensures the uniformity, effectiveness, and autonomy of EU law (Achmea, paragraph 37).
Failure to uphold effective judicial protection would negatively impact these core EU law characteristics and the EU as a whole. The contested measures, therefore, undermine judicial independence and, consequently, the effective judicial protection guaranteed by Article 19 TEU. The Commission, responding to the Judge Rapporteur’s query, highlighted the problematic nature of the Minister of Justice’s discretion. The Minister can grant or deny service extensions without clear criteria, justification, possibility for appeal, or a defined extension period. Citing the European Court of Human Rights case law concerning Article 6(1) ECHR, the Commission argued this could be construed as a means of pressuring the judiciary, thereby infringing upon Article 19 TEU.
Furthermore, the Commission reminded the Court of Justice of its December 17, 2018, interim measures order in the Supreme Court case (see also the November interim measures order). In this order, the Court refuted the claim that the Commission relied solely on hypotheses, stating that the contested provisions could lead to violations of Article 19(1) TEU (paragraphs 55-56). Despite this, Poland argued that amendments to the contested provisions, aligning them with EU law, should prompt the Commission to withdraw its Article 258 TFEU application. The Polish representative emphasized the limited scope of the Minister of Justice’s discretion, claiming that the Minister considers the workload of other courts when deciding on extensions.
Simultaneously, the Polish representative acknowledged, when questioned by the Judge Rapporteur, that the Minister of Justice isn’t obligated to justify decisions and that no judicial review exists for such decisions. This lack of accountability heightened the suspicion surrounding the situation, as noted by the President of the Court during the hearing. The Judge Rapporteur also questioned how retiring judges could alleviate the workload in other courts, suggesting personnel transfers instead. This suggestion was explicitly dismissed by the Polish representative, stating that Polish law doesn’t allow for such measures.
More fundamentally, the Polish representative argued that the Commission’s infringement action represents an unjustified interference in Poland’s national judicial system, a purely internal matter. Lowering the retirement age, they claimed, should not be seen as removing judges from office but as an exception to the constitutional rule on retirement age, justified by the need for efficient judge allocation among Polish courts.
This prompted the President to question the Commission about potential limitations to the EU’s authority under Article 19(1) TEU, considering Member States’ autonomy in organizing their judicial systems. The Commission acknowledged the need to respect the division of competences and Member States’ autonomy in this area. However, they emphasized that Member States must still adhere to minimum standards, as established in the Court of Justice’s prior case law, including the Associação Sindical dos Juízes Portugueses and LM judgments. Nevertheless, the Polish representative accused the Court of Justice of applying double standards concerning judicial independence, drawing a parallel between renewing a Court of Justice judge’s mandate for six years and extending a Polish ordinary court judge’s term.
However, comparing these two situations is misleading. While the appointment process for Court of Justice judges may lack transparency, Article 253 and 255 TFEU require considering criteria such as independence and qualifications. Appointments and renewals are decided upon by the common accord of Member States’ governments following consultation with an expert panel.
Advocate General Tanchev’s Approach to Upholding the Rule of Law
The Advocate General is expected to deliver his opinion in the Ordinary Courts case on June 20, 2019, paving the way for the Court of Justice’s decision. However, his opinion in the Supreme Court case, released on April 11, 2019, offers insight into the potential outcome for the Ordinary Courts case. The Supreme Court case, dealing with the lowered retirement age for Supreme Court judges and the President of Poland’s power to extend their service, closely mirrors the Ordinary Courts case.
The Advocate General highlighted the significance of the Supreme Court case as the first infringement proceeding where the Court of Justice must rule on the compatibility of national judicial system measures with Article 19(1) TEU standards (Opinion, paragraph 47). He believes the Court’s decisions in these cases will bolster respect for the rule of law among Member States and offer guidance on the standards underpinning this principle. The invocation of an Article 7(1) TEU procedure against Poland doesn’t affect the admissibility of this case. Notably, the Advocate General drew a clear distinction between the legal procedure of Article 258 TFEU and the political procedure of Article 7 TEU, highlighting their different structures and objectives (Opinion, paragraph 50).
Confirming the Associação Sindical dos Juízes Portugueses Case: Article 19(1) TEU’s Scope Encompasses Rule of Law Compatibility
The Advocate General examined the scope of Article 19(1) TEU and Article 47 of the EU Charter independently, mirroring Advocate General Saugmandsgaard Øe’s proposal in his opinion on the Associação Sindical dos Juízes Portugueses case. However, the Court of Justice, in that case, reframed the question by omitting a direct reference to Article 47 of the EU Charter, only citing it to explain that effective judicial protection necessitates access to an independent and impartial tribunal.
By focusing on Article 19(1) TEU, the Court of Justice avoided opening the debate on the scope of the Charter’s application as defined in Article 51. An expansive interpretation of this provision could be perceived as undue interference in Member States’ internal affairs, potentially undermining national constitutional courts’ authority in upholding the rule of law and fundamental rights enshrined in their constitutions.
The Polish representative repeatedly invoked this “national sovereignty” argument during the Ordinary Courts case hearing. However, the Commission emphasized that Article 47 of the EU Charter merely serves to clarify the effective judicial protection principle outlined in Article 19(1) TEU. Furthermore, the infringement action centers on a potential violation of Article 19(1) TEU resulting from Poland’s lowered retirement age and the Minister of Justice’s discretion. The focus is on the material scope of Article 19(1) TEU.
Advocate General Tanchev argues that Member States are obligated to ensure the full application of EU law and provide individuals with judicial protection under Article 19(1) TEU. Consequently, measures undermining the independence of national courts obstruct the EU Courts from fulfilling their mandate under Article 19(1) TEU (Opinion in Commission v. Poland (Supreme Court case), paragraph 59). Therefore, the Court of Justice has the authority to review whether a Member State’s actions align with its obligations under Article 19(1) TEU.
Given that the Polish Supreme Court—and, by extension, Polish ordinary courts—may handle EU law interpretation and application, and the infringement action concerns a potential rule of law breach concretized by Article 19 TEU, the Advocate General believes the Commission’s action in both the Supreme Court and, by extension, the Ordinary Courts cases should be considered admissible (Opinion in Commission v. Poland (Supreme Court case), paragraph 63).
Poland’s Infringement on the Rule of Law, Specifically the Principle of Effective Judicial Protection
Having established admissibility, Advocate General Tanchev argues that Poland violates Article 19(1) TEU in two ways: by breaching the principle of irremovability of judges and by compromising judicial independence through the President’s discretionary power to extend judges’ service beyond the retirement age.
Interestingly, the Commission, during the Ordinary Courts hearing, didn’t directly address the irremovability principle, focusing instead on the Minister’s discretionary powers. They considered the lowered retirement age relevant to the broader discussion but didn’t explicitly classify it as an Article 19(1) TEU violation. Conversely, the Advocate General emphasized the principle of irremovability as a fundamental guarantee of judicial independence.
Furthermore, it’s noteworthy how the Advocate General, in the Supreme Court case, guides the Court of Justice in defining the principle of irremovability by referencing soft law instruments from international bodies like the Council of Europe, International Bar Association, and the United Nations. He highlights the importance of these non-binding norms as indicators of a shared understanding of rules and principles, offering valuable context for the Court of Justice (Opinion in Commission v. Poland (Supreme Court case), footnotes 51-52).
This principle of irremovability dictates that judges should have secure tenure until a mandatory retirement age or their term’s natural end. Suspensions or removals should only occur in specific cases due to incapacity or conduct rendering them unfit for office. Early retirement should be at the judge’s request or on medical grounds, and changes to the retirement age mustn’t be applied retroactively (Opinion in Commission v. Poland (Supreme Court case), paragraph 72). The Advocate General employs these factors, previously used by the Court of Justice in Associação Sindical dos Juízes Portugueses to assess whether lowering the remuneration level compromised judicial independence, to evaluate if lowering the retirement age breaches the irremovability principle (Associação Sindical dos Juízes Portugueses, paragraphs 46-50; Opinion in Commission v. Poland (Supreme Court case), paragraph 76).
Moreover, the Advocate General argues that the sudden and unforeseen removal of numerous judges can erode public trust, countering the Polish representatives’ concluding remark that the Commission’s infringement procedure is counterproductive and disrupts Poland’s judicial system. The Polish government’s actions, by forcing a significant number of judges into early retirement, are precisely what creates public confusion and uncertainty.
Regarding the Polish President’s discretionary power to extend the terms of Supreme Court judges, Advocate General Tanchev believes this measure also contradicts the principle of judicial independence enshrined in Article 19(1) TEU. This specifically impacts the external aspect of judicial independence, as the measure exposes judges to external influence and pressure from the President due to the link between the lowered retirement age and the need to request extensions (Opinion in Commission v. Poland (Supreme Court case), paragraph 89). Applying this reasoning to the Minister of Justice’s similar discretionary power over ordinary court judges, the Advocate General is likely to arrive at the same conclusion in the Ordinary Courts case. The lack of clear criteria for granting extensions, the absence of judicial review for refusals, and the Polish representative’s inadequate justifications strongly suggest a system susceptible to external influence and pressure from the Minister, contravening Article 19(1) TEU.
Can the Court of Justice Secure a Win for the Rule of Law?
Therefore, Advocate General Tanchev’s opinion in the Ordinary Courts case will likely align with his opinion in the Supreme Court case, offering little surprise. Considering the outcome of the Associação Sindical dos Juízes Portugueses case, the Court of Justice is expected to uphold its judgment and take a decisive stance in the rule of law crisis. As political tools prove insufficient in addressing rule of law deficiencies within certain Member States, the legal path, through pending infringement and preliminary ruling procedures, becomes crucial. While Poland has much work to do to restore judicial independence in line with Article 19(1) TEU, the Court of Justice’s intervention via interim measures in the Supreme Court case has already led to the reinstatement of judges forced into early retirement.
Barnard & Peers: chapter 9, chapter 10
Photo credit: France24