A
MSTERDAMG
RADUATEL
AWS
CHOOL2019 – 2020
Saving judicial independence: a blade that cuts both ways?
Do the Court of Justice’s recent attempts to safeguard judicial independence inevitably lead to structural inadmissibility of questions referred for preliminary ruling arising from a ‘tainted’
judiciary? AUTHOR: E-MAIL: STUDENT NO: MASTER TRACK: PROMOTOR: DATE OF SUBMISSION: Charlotte REYNS reynscharlotte@gmail.com 12803324
International and European Law: European Union Law Thomas A. J. A. Vandamme
Abstract
Since its rulings in ASJP and Commission v Poland, the Court of Justice of the European Union has revealed itself as an ally in the struggle to uphold the Rule of Law in the Member States. Trying to protect the Polish judiciary from national measures that impair their independence, the Court developed a new and innovative body of case law based on Article 19 TEU, with the notion ‘judicial independence’ as its centre. However, the notion ‘independence’ has a long history in the case law of the Court in a different framework: it is one of the so-called Dorsch Consult criteria that the Court uses to establish whether a body that refers a question for preliminary ruling qualifies as a ‘court or tribunal’ as meant by Article 267 TFEU.
This thesis will investigate the relationship between both strands of case law. It will first examine both notions of ‘independence’ in their respective context by analysing the case law of the Court. Next, it will show that the Court seems to have set course towards the alignment of both strands of case law. While understandable, this approach might have a perverse effect: by declaring that a Member State failed to fulfil its obligations under Article 19 TEU, the Court could inherently be excluding that Member State’s bodies from participating in the dialogue des juges. In other words: the attempts of the Court to address systemic deficiencies affecting the independence of a judiciary might lead to structural inadmissibility of preliminary questions arising from that judiciary. Subsequently, this thesis will investigate whether this last hypothesis is truly inevitable. For that, it will analyse the specific nature of the preliminary reference procedure as an instrument of cooperation and a vehicle for effective judicial protection of individuals. Supported by Opinions of AG Bobek, Tanchev and Wahl, this thesis concludes that structural inadmissibility is indeed not inevitable when the difference in context in which ‘independence’ operates, is respected.
Table of Content
INTRODUCTION ... 1
CHAPTER I. WHAT DOES ‘INDEPENDENCE’ MEAN TO THE COURT OF JUSTICE OF THE EUROPEAN UNION? ... 3
SECTION 1. INDEPENDENCE AND THE PRELIMINARY REFERENCE PROCEDURE: AN ADMISSIBILITY REQUIREMENT UNDER ARTICLE 267TFEU ... 3
§1. Early case law: a functional approach to independence ... 3
§2. Wilson: a stepping stone towards a more substantive understanding of independence? 6 SECTION 2. INDEPENDENCE IN A RULE OF LAW CONTEXT: THE ACTIVATION OF ARTICLE 19TEU 7 §1. Commission v Poland – indépendance de la cour suprême: from the Rule of Law to effective judicial protection and back ... 9
§2. An elevated concept of independence: a general principle of EU law and an obligation under primary law ... 12
CHAPTER II. THE PRACTICAL IMPLICATION OF ‘INDEPENDENCE’ UNDER ARTICLE 19 TEU: A THREAT TO THE FUNCTIONING OF THE PRELIMINARY RULING SYSTEM? ... 14
SECTION 1. RECAP:THE CONDITIONS OF ARTICLE 267TFEU ... 14
SECTION 2. THE ‘BLIND SPOT’ ARGUMENT:DO SYSTEMIC DEFICIENCIES AFFECTING THE JUDICIARY LEAD TO STRUCTURAL INADMISSIBILITY OF PRELIMINARY QUESTIONS? ... 15
CHAPTER III. STRUCTURAL INADMISSIBILITY, TRULY INEVITABLE? ... 18
SECTION 1. THE SPECIFIC NATURE OF THE PRELIMINARY REFERENCE MECHANISM: MAKING A FLEXIBLE APPROACH JUSTIFIABLE? ... 19
§1. The particularities of the preliminary reference mechanism ... 19
A. An instrument of cooperation between courts ... 19
B. A vital element of the right to effective judicial protection ... 22
§2. ‘Independence’ in Torresi: context is everything ... 23
SECTION 2. INDEPENDENCE UNDER ARTICLE 267TFEU AND ARTICLE 19TEU: A “QUALITATIVELY DIFFERENT EXERCISE” ... 27
§1. Respect the difference in context: why the Court’s Rule of Law cases do not overrule the body of case law under Article 267 TFEU ... 27
§2. Respect the difference in context: why the Court’s Rule of Law cases should not overrule the body of case law under Article 267 TFEU ... 29
BIBLIOGRAPHY ... 34 LEGISLATION 34
JURISPRUDENCE ... 34
LEGAL THEORY ... 36
INTRODUCTION
“The independence of national courts and tribunals is, in particular, essential to the proper working of the judicial cooperation system embodied by the preliminary ruling mechanism under Article 267 TFEU, in that […] that mechanism may be activated only by a body responsible for applying EU law which satisfies, inter alia, that criterion of independence.”1
The second half of the past decade has been characterised by a political development in the European Union often described as “Rule of Law backsliding”. Alongside a set of Rule of Law instruments issued by the Commission2 and the triggering of the so-called ‘atomic bomb procedure’ in Article 7 TEU against Poland3 and Hungary4, the Court of Justice of the European Union (“the Court” or “the Court of Justice”) has revealed itself as an ally in the struggle to uphold the Rule of Law in the different Member States. More specifically, its strong reaction to the Polish reforms that jeopardised the independence of the national judiciary did not go unnoticed. On 24 June 2019, the Court issued the highly anticipated judgment Commission v Poland5, which relied heavily on the reasoning set out in Associação
Sindical dos Juízes Portugueses (“ASJP”)6 the year before. The cornerstone of the Court’s legal reasoning was the term ‘judicial independence’, which arose in those cases as necessary corollary of the principle of effective legal protection laid down in Article 19(1) TEU, itself part and parcel of the Rule of Law.
However, the notion of ‘independence’ has been around for a while in the case law of the Court as a ‘formalistic’ admissibility requirement in the context of the preliminary ruling mechanism laid down in Article 267 TFEU. The preliminary ruling mechanism has repeatedly been called the “keystone” of the EU judicial system and the Court does not shy away from
1 Case C-64/16 Associação Sindical dos Juízes Portugueses v Tribunal de Contas (“ASJP”) [2018] ECLI:EU:C:2018:117, para 23.
2 See, for instance: Commission, ‘Further strengthening the Rule of Law within the Union State of play and possible next steps’ (Communication) COM (2019) 163 final.
3 Commission, ‘Rule of Law: European Commission acts to defend judicial independence in Poland’ (Press Release) (Brussels, 20 December 2017) <https://ec.europa.eu/commission/presscorner/detail/en/IP_17_5367> accessed 3 April 2020.
4 European Parliament, ‘Rule of Law in Hungary: Parliament calls on the EU to act’ (Press Release) (Brussels, 12 September 2018)
<https://www.europarl.europa.eu/news/en/press-room/20180906IPR12104/rule-of-law-in-hungary-parliament-calls-on-the-eu-to-act> accessed 3 April 2020.
5 Case C-619/18 Commission v Poland (Indépendance de la Cour suprême) [2019] ECLI:EU:C:2019:531. 6 ASJP (n 1).
stressing its importance.7 Only a “court or tribunal” of a Member State may participate in this judge to judge dialogue. One of the prerequisites to qualify as such court or tribunal, is that the referring body be independent.8 Independence thus constitutes a condition a national body has to fulfil in order to refer a question for preliminary ruling to the Court.
Independence thus seems to play a dual role before the Court: it functions as a formal admissibility requirement under Article 267 TFEU and as a substantive obligation incumbent upon Member States to guarantee the right to effective judicial protection in the context of Article 19 TEU and intrinsically uphold the Rule of Law. This raises an important question: is there a difference between ‘independence’ as procedural admissibility requirement and ‘judicial independence’ as substantive element of the Rule of Law? In other words: does the context in which ‘independence’ operates, have any bearing on its content or how it is evaluated? And if this is one and the same concept, what are the implications of that for the functioning of the preliminary ruling system? After all, the preliminary ruling system can only be triggered by independent bodies. Could this mean that by declaring that a Member State’s tribunal or court is no longer independent, the Court of Justice inherently excludes that body from further participation in the dialogue des juges? Is this the inevitable consequence, or is there leeway for the Court to have regard for the context in which the question of independence arises?
It is clear that the relationship between the two strands of case law creates a lot of questions. This master thesis will attempt to phrase an answer to those. Chapter I will analyse the notion ‘independence’ in the case law of the Court: first, as ‘formalistic’ admissibility requirement in the context of preliminary reference procedure and second, as substantive element of the Rule of Law. Chapter II will look into the practical implications of the rule-of-law-related notion of judicial independence: does it pose a threat to the functioning of the preliminary ruling system? More specifically: do systemic deficiencies impairing the independence of the judiciary lead to structural inadmissibility of preliminary questions? Chapter III will explore whether structural inadmissibility is truly inevitable, or whether the difference in context provides sufficient arguments to warrant a difference in treatment.
7 Joined Cases C-188 and 189/10 Melki and Abdeli [2010] ECLI: EU:C:2010:363; Opinion 1/09 Patent Court [2011] ECLI:EU:C:2011:123 ; Opinion 2/13 Accession ECHR [2014] EU:C:2014:2425, para 165; Case C-160/14 Ferreira da Silva [2015] ECLI:EU:C:2015:565; Case C-284/16 Slovak Republic v Achmea BV [2018] ECLI:EU:C:2018:158, para 37 ; Joined Cases C-558/18 and C-563/18 Miasto Łowicz [2020] ECLI:EU:C:2020:234, para 55.
8 The criteria to qualify as a ‘court or tribunal’ are also referred to as the ‘Dorsch consult criteria’. Case C-54/96
Dorsch Consult Ingenieursgesellschaft v Bundesbaugesellschaft Berlin [1997] EU:C:1997:413. NB. Some
CHAPTER I. WHAT DOES ‘INDEPENDENCE’ MEAN TO THE COURT OF JUSTICE OF THE EUROPEAN UNION?
1. As a starting point, it is important to understand what is meant by ‘independence’ in the case law of the Court. This chapter will be split up in two sections relating to two ‘types’ of independence: independence as an admissibility requirement in the context of Article 267 TFEU (section 1) and independence as a substantive obligation incumbent upon Member States to guarantee the right to effective judicial protection in the context of Article 19 TEU (section 2).
SECTION 1. INDEPENDENCE AND THE PRELIMINARY REFERENCE PROCEDURE: AN ADMISSIBILITY REQUIREMENT UNDER ARTICLE 267 TFEU
§1. Early case law: a functional approach to independence
2. Article 267 TFEU embodies the preliminary reference procedure through which national courts and tribunals can refer questions on the interpretation or validity of EU law to the Court of Justice. Soon, the question arose how to interpret the notion ‘court or tribunal’ in this provision: would each Member State be able to determine which of its national bodies qualified as a ‘court’, or should this be a matter of EU law only?9 The Court decided in favour of this second approach in Vaassen-Goebbels,10 leading to the well-known phrasing that the question “[…] whether a body making a reference is a court or tribunal
for the purposes of Article [267 TFEU], […] is a question governed by [Union] law alone”.11 According to the Court’s settled case law, a number of factors are taken into account when determining whether a national body qualifies as a ‘court’: whether the body is established by law; whether it is permanent; if its jurisdiction is compulsory; its procedure is inter partes; it applies rules of law; and whether it is independent.12 These criteria are often referred to as the Dorsch Consult criteria.13
9 Jaime Rodriguez Medal, ‘Concept of a court or tribunal under the reference for a preliminary ruling: Who can refer questions to the Court of Justice of the EU?’ (2015) 8 European Journal of Legal Studies 111.
10 Case C-61/65 Vaassen-Goebbels [1966] ECLI:EU:C:1966:39.
11 Dorsch Consult (n 8) para 23. See also: Case C-17/00 de Coster [2001] ECLI:EU:C:2001:366, Opinion of AG Ruiz-Jarabo Colomer, para 81: “Uniformity in the application of Community law requires that the concept of
national court or tribunal be defined within it”. See also: Roger-Michel Chevallier and Dominique Maidani, Guide pratique Article 177 EEC (Office des publications officielles des Communautés européennes 1982) 44,
where Chevallier and Maidani point out that the criteria used by the Court were established in accordance with the general legal principles common to all Member States.
12 Dorsch Consult (n 8) para 23; Case C-503/15 Margarit Panicello [2017] ECLI:EU:C:2017:126, para. 27; Case C-274/14 Banco de Santander SA [2020] ECLI:EU:C:2020:17, para 51.
3. However, referring to “a number of factors” that are taken into account, the Dorsch
Consult criteria are neither necessarily cumulative nor exhaustive. Throughout the years,
they have not been applied rigorously by the Court, leading to disparities in the Court’s case law.14 According to Advocate General (“AG”) Ruiz-Jarabo Colomer in
Umweltanwalt von Kärnten, the ratio behind this flexible approach is to protect the
institutional autonomy of Member States: it accommodates the difficulty of having different national criteria and objectives to determine which bodies form part of the judiciary.15
4. This ‘flexibility’ can definitely be noticed in the Court’s interpretation of the independence requirement, which is of specific interest to this thesis. In a recent speech, current President of the Court of Justice Koen Lenaerts stressed the importance of this requirement by stating that “In order to have access to the preliminary reference
procedure, national courts must be independent because only those courts can be trusted with applying loyally the law of the EU as interpreted by the ECJ”.16 However, it is questionable whether this idea of trust constituted the foundation of the Court’s reasoning when it adopted this criterium in Pretore di Salò17 and Corbiau18.
5. In Pretore di Salò, the Court explained that it can only reply to requests for a preliminary ruling “if that request emanates from a court or tribunal which has acted in the general
framework of its task of judging, independently and in accordance with the law, cases
14 For an extensive overview of the Court’s case law before 2001, see de Coster, Opinion of AG Ruiz-Jarabo Colomer (n 11). This flexible approach has been criticised repeatedly, see for instance: Rodriguez Medal (n 9) 138 ff.
15 Case C-205/08 Umweltanwalt von Kärnten [2009] ECLI:EU:C:2009:397, Opinion of AG Ruiz-Jarabo Colomer, paras 35-36. On that same note, see Joined cases C-58/13 and C-59/13 Torresi [2014] ECLI:EU:C:2014:265, Opinion of AG Wahl, para 27. In addition, Wahl and Prete favour a degree of flexibility, since the legal systems of the different member states, “including the structure and organisation of the judiciary,
are in continuous evolution”. A flexible approach allows the Court to take those changes into account. Nils Wahl
and Luca Prete, ‘The Gatekeepers of Article 267 TFEU : on Jurisdiction and Admissibility of References for Preliminary Rulings’ (2018) 55 Common Market Law Review 522.
16 Koen Lenaerts, ‘The Court of Justice and national courts: a dialogue based on mutual trust and judicial independence’ (Speech at the Supreme Administrative Court of the Republic of Poland, Warsaw, 19 March 2018) <www.nsa.gov.pl/download.php?id=753&mod=m/11/pliki_edit.php> accessed 6 April 2020, 4. One might wonder whether this statement is entirely correct, looking at the decision of the Danish supreme court in AJOS or the recent stand-off between the ECJ and the German Federal Constitutional Court in its PPSP judgment. For an analysis, see: Sune Klinge, ‘Dialogue or disobedience between the European Court of Justice and the Danish Constitutional Court? The Danish Supreme Court challenges the Mangold-principle’ (EU Law Analysis, 13 December 2016) <http://eulawanalysis.blogspot.com/2016/12/dialogue-or-disobedience-between.html> accessed 18 June 2020; Pavlos Eleftheriadis, ‘Germany’s Failing Court’ (Verfassungsblog, 18 May 2020) <https://verfassungsblog.de/germanys-failing-court/> accessed 18 June 2020.
17 Case 14/86 Pretore di Salò [1987] ECLI:EU:C:1987:275. 18 Case C-24/92 Corbiau [1993] EU:C:1993:118.
coming within the jurisdiction conferred on it by law”.19 In his Opinion in Corbiau, AG Darmon clarified that “the idea of independence is an inherent element of the judicial
function”.20 Independence is thus seen as an inseparable aspect of the judicial function (in contrast to an administrative function), and national courts and tribunals can only make use of the preliminary reference procedure when they are required to resolve a legal dispute before them.21 The original ratio behind the independence requirement thus seems to be rather straightforward: the proceedings before the national body have the be judicial in nature, and in order for them to be judicial, that body inherently has to be independent. Consequently, pinning the original ratio underlying the concept of independence on the idea of trust, like President Lenaerts did in his speech, rather than on the requirement that the proceedings before the national body have to be judicial in nature, seems to be backdating the ratio of independence.
6. In Corbiau, the Court then clarified how to assess whether the requirement of independence is fulfilled substantively.22 In that judgment, independence meant that the body seeking the preliminary ruling should act as a third party in relation to the authority which adopts the decision forming the subject-matter of the proceedings.23 Following this reasoning, a reference made by the Italian Public Prosecutor’s Office was declared inadmissible in Criminal Proceedings against X.24 However, the Court deviated from this
line in Dorsch Consult, where the emphasis was put on the objective of the body, which should be “to carry out its task independently and under its own responsibility”.25 This line was continued in cases such as Köllensperger and Atzwanger26 and Gabalfrisa.27 These cases were criticised for portraying a very “lax criterion” of independence, as it
19 Pretore di Salò (n 17) para 7.
20 Case C-24/92 Corbiau [1993] ECLI:EU:C:1993:59, Opinion of AG Darmon, para 10. 21 See in that sense: Case C-210/06 Cartesio [2008]ECLI:EU:C:2008:723.
22 Corbiau (n 18). 23 Ibid para 15.
24 Joined cases C-74/95 and C-129/95 Criminal Proceedings against X [1996] ECLI:EU:C:1996:491. 25 Dorsch Consult (n 8) para 35; de Coster, Opinion of AG Ruiz-Jarabo Colomer (n 11), para 21-22.
26 Case C-103/97 Köllensperger and Atzwanger [1999] ECLI:EU:C:1999:52. The Tyrol’s Procurement Office was deemed independent even though the national guarantees on the member’s tenure and dismissal were rather vague.
27 Case C-110/98 Gabalfrisa [2000] ECLI:EU:C:2000:145. The Spanish tribunals reviewing decisions of tax authorities were deemed independent even though the Minister of Economic Affairs could directly appoint or dismiss the members of tribunals. This was justified by relying on the separation of functions between the ministers and the tribunals.
sufficed that there were generic provisions intended to ensure the impartiality or the independence of the court or tribunal.28
7. This body of case law thus set out a functional notion that delineates which bodies should be allowed to the judicial dialogue. In contrast to the European Court of Human Rights (“ECtHR”) when it decides on judicial independence under Article 6 of the European Convention of Human Rights (“ECHR”), the focal point of the ECJ has not been the protection of the fundamental right of an individual to an independent tribunal.29 Hence, when interpreting independence in a ‘lax’ way, the Court was not concerned with fundamental rights but merely focused on broadening access to the preliminary reference procedure, allowing more participants to the dialogue.30
§2. Wilson: a stepping stone towards a more substantive understanding of independence?
8. In Wilson,31 it seemed as if the Court had taken some of the critiques at heart and deepened out the independence requirement. Referring to the case law of the ECtHR in the context of Article 6(1) ECHR, the Court explained that there are two dimensions to independence: an internal and an external one. 32 Internally, independence should be understood as impartiality: it seeks to ensure a level playing field for the parties to the proceedings and for their competing interests.33 Externally, independence requires that the body is shielded from external intervention or pressure that could jeopardise the independent judgment of its members as regards proceedings before them.34 This embodies the separation of powers between the executive and legislative branch and the judicial one.35
9. The Court further emphasised that both dimensions of independence require rules that are able to dismiss any reasonable doubt in the minds of individuals as to the imperviousness
28 Especially AG Ruiz-Jarabo Colomer criticised this approach. In his opinion on de Coster, he militated for guarantees of independence by means of “provisions which establish, clearly and precisely, the reasons for the
withdrawal, rejection and dismissal of its members”. de Coster, Opinion of AG Ruiz-Jarabo Colomer (n 11)
paras 24-25. See also: Matteo Bonelli and Monica Claes, ‘Judicial Serendipity: How Portuguese Judges Came to the Rescue of the Polish Judiciary: ECJ 27 February 2018, Case C-64/16, Associação Sindical Dos Juízes Portugueses.’ (2018) 14 European Constitutional Law Review 638.
29 Bonelli and Claes (n 28) 638.
30 Ibid; de Coster, Opinion of AG Ruiz-Jarabo Colomer (n 11) para 63. 31 Case C-506/04 Wilson [2006] ECLI:EU:C:2006:587.
32 See the references made in Wilson (n 31) para 51 and 53. 33 Ibid para 52.
34 Ibid para 51.
of that body to external factors and its neutrality with respect to the interests before it.36 In particular, rules are required concerning the composition and appointment of the body, length of service and the grounds for abstention, rejection and dismissal of its members.37 10. Interestingly, the Court thus departs from its purely functional approach and moves
towards a more ‘substantive’ understanding of independence, aligning its case law with the case law of the ECtHR. However, an important side note has to be made. Unlike in the cases mentioned in the first subsection, the Court was not concerned with allowing a national court to take part in the dialogue des juges in Wilson. In Wilson, the notion ‘independence’ arose in the context of Article 9 of Directive 98/5 on free movement of lawyers, which requires Member States to provide remedies before a ‘court or tribunal’ against negative registration decisions.38 To interpret this provision, the Court relied on the body of case law developed under Article 267 TFEU.39 As argued by Bonelli and Claes, the change in case law can thus be explained by the aim of this particular provision, which is to guarantee that individuals have access to an independent body.40
11. Nevertheless, the Court stuck with this interpretation of the independence requirement also in ‘pure’ admissibility questions under Article 267 TFEU.41 The next section will show that the Court used this same definition again in yet another context: when elaborating on judicial independence as part of the principle of effective judicial protection laid down in Article 19 TFEU.
SECTION 2. INDEPENDENCE IN A RULE OF LAW CONTEXT: THE ACTIVATION OF ARTICLE 19 TEU
12. As stated in the introduction, the EU has been facing ‘Rule of Law backsliding’ in several Member States.42 At the core of today’s discussion are the Polish rules that systematically
36 Wilson (n 31) para 53.
37 Ibid. Also guarantees against removal from office are required for members of the judiciary: Joined Cases C-9/97 and C-118/97 Jokela and Pitkäranta [1998] ECLI:EU:C:1998:497, para 20.
38 Wilson (n 31) para 44.
39 Ibid para 48. AG Wahl writes that “the Court ‘borrowed’ the principles developed under Article 267 TFEU”.
Torresi, Opinion of AG Wahl (n 15) para 32
40 Bonelli and Claes (n 28) 639.
41 See for instance Margarit Panicello (n 12) para 37 ff.
42 Next to Poland and Hungary, also Romania and Bulgaria face difficulties upholding the Rule of Law. For an overview: Commission, ‘Report on progress in Bulgaria under the Cooperation and Verification Mechanism’ COM(2018) 850 final; Commission, ‘Report on progress in Romania under the Cooperation and Verification Mechanism’ COM(2018) 851 final.
undermine the independence of the national judiciary.43 This resulted in a new and innovative body of case law, with the notion ‘judicial independence’ as its centre. This time, the case law did not revolve around Article 267 TFEU, but around Article 19(1) TEU, which imposes a duty on Member States “to ensure effective legal protection in the
fields covered by Union law”. ‘Judicial independence’ arises in these cases not as a
‘formalistic’ admissibility requirement, but as necessary corollary of the principle of effective legal protection, itself part and parcel of the Rule of Law.
13. Two cases in particular steal the spotlight: ASJP44 and of course Commission v Poland45. Interestingly, the former is not the controversial Rule of Law case one would imagine. The facts were rather straightforward: in short, a union of Portuguese judges tried to defend their salaries from austerity measures by arguing that those measures breached the principle of judicial independence. As singled out by Bonelli and Claes, this case could have been resolved easily: the Court has accepted temporary salary reductions in the context of austerity before.46 Surprisingly, the Court chose to answer this question from a Rule of Law perspective. It seized this case as an opportunity to set out its views on judicial independence, activating Article 19 TEU as a standard for review of national measures that would hamper the principle of judicial independence.47
14. The judicial creativity this ‘detour’48 required, can only be explained by the desire of the Court to get a foothold in the Polish discussion. In fact, the independence of the Polish judiciary was – and is – being seriously undermined by a set of reforms, inter alia by lowering the retirement age of sitting judges of the Polish Supreme Court.49 It came as no surprise that when the Commission brought an infringement action against Poland for jeopardising the independence of its Supreme Court, the Court seamlessly followed the reasoning set out in ASJP. Given the ‘actual’ Rule of Law context of Commission v
Poland, this section will focus primarily on the Polish case rather than on ASJP.
43 Commission Recommendation (EU) 2018/103 of 20 December 2017 regarding the Rule of Law in Poland complementary to Recommendations (EU) 2016/1374, (EU) 2017/146 and (EU) 2017/1520 [2018] OJ L17/50. 44 ASJP (n 1).
45 Commission v Poland (n 5). 46 Bonelli and Claes (n 28) 622. 47 Ibid 628.
48 The actual analysis of the national measures at stake was straightforward and uncontroversial: the specific outcome of the case was clearly of less interest to the Court than setting out the lines for the concept of judicial independence and the European judiciary. Ibid 635.
49 For an overview: Laurent Pech and Kim Lane Scheppele, ‘Illiberalism Within: Rule of Law Backsliding in the EU’ (2017) 19 Cambridge Yearbook of European Legal Studies 3 ff ; Wojciech Sadurski, ‘How Democracy Dies (in Poland): A Case Study of Anti-Constitutional Populist Backsliding’ [2018] Legal Studies Research Paper No. 18/01 <: http://ssrn.com/abstract=3103491SSRN> accessed 25 April 2020.
Subsection 1 will try to set out the Court’s reasoning in a structured way. Subsection 2 will evaluate how independence is perceived in that case.
§1. Commission v Poland – indépendance de la cour suprême: from the Rule of Law to effective judicial protection and back
15. On 2 October 2018, the Commission initiated infringement proceedings against Poland for a failure to fulfil its obligations under Article 19 TEU and Article 47 of the Charter of Fundamental Rights of the European Union (“CFR”).50 For the first time, Article 19 TEU is activated as a standard for review of national provisions in the context of an infringement action. Under Articles 37 and 111 of the New Law on the Supreme Court, the mandatory retirement age for Supreme Court judges – including for those who were already sitting in the Supreme Court – was lowered from 70 to 65. Furthermore, the President of Poland was granted a discretionary power to extend the judges’ mandate beyond this newly fixed retirement age. Next to initiating infringement proceedings, the Commission requested interim measures under Article 160(2) TFEU, seeking to suspend the application of the contested provisions. On 19 October 2018, the measure was granted.51 Consequently, the Polish government repealed the law and reinstated the Supreme Court judges in office.52Nevertheless, the Commission maintained its action and the Court decided that the proceedings had not become devoid of purpose.53
16. The ruling starts with a reminder that Member States have committed themselves voluntarily to the values set out in Article 2 TEU when acceding to the EU.54 The premise upon which EU law is based, is that each and every one of the Member States recognises and shares these values, which in turn justifies the existence of mutual trust.55 In particular, it justifies mutual trust between courts and tribunals of Member States in that foundational values, such as the Rule of Law, and EU law itself, which implements those values, will be respected.56
50 Commission v Poland (n 5) para 15.
51 Order C-619/18 PPU Commission v Poland (Indépendance de la Cour suprême) [2019] ECLI:EU:C:2018:852. 52 Commission v Poland (n 5) para 27; Marco Antonio Simonelli, ‘Thickening up judicial independence: the ECJ ruling in Commission v. Poland (C-619/18) (European Law Blog, 8 July 2019)
<https://europeanlawblog.eu/2019/07/08/thickening-up-judicial-independence-the-ecj-ruling-in-commission-v-poland-c-619-18/> accessed 4 June 2020.
53 Commission v Poland (n 5) para 29-31. 54 Ibid para 42.
55 Ibid para 43. 56 Ibid para 43.
17. Next, the Court stresses that, in order to preserve the specific characteristics – such as adherence to the Rule of Law – and the autonomy of the EU legal order, the Treaties have established a judicial system.57 The keystone of this system is the preliminary ruling procedure: this judicial dialogue should secure the consistency and uniformity in the interpretation of EU law, and ensure its full effect, autonomy and particular nature.58 18. From there, the Court moves towards the right to effective judicial protection. Since the
EU is a union based on the Rule of Law, individuals enjoy the right to challenge the legality of EU acts that affect them before the courts.59 To enable this, Member States have to provide a system of legal remedies and procedures by virtue of Article 19(1) TEU.60 In that sense, “Article 19 TEU […] gives concrete expression to the value of the
Rule of Law affirmed in Article 2 TEU”.61 Under Article 19 TEU, national courts and
tribunals share the responsibility for ensuring the full application of EU law in every Member State and judicial protection of the rights of individuals with the Court of Justice.62
19. By now the focus has shifted completely towards the principle of effective judicial protection codified in Article 19(1) TEU. According to the Court, this is a general principle of EU law stemming from the constitutional traditions common to Member States. Furthermore, the Court refers to Article 6 (right to a fair trial) and to Article 13 (right to an effective remedy) ECHR, which both enshrine this principle of effective judicial protection. Naturally, the Court refers to their counterpart in the Charter: Article 47 (right to an effective remedy and to a fair trial).63 The latter explicitly refers to an “independent and impartial tribunal”. In his opinion, AG Tanchev clarified that the requirements of judicial independence under the second subparagraph of Article 19(1) TEU correspond to those under the second paragraph of Article 47 CFR.64
20. Importantly, the Court’s reasoning is not based upon Article 47 CFR. AG Tanchev stresses that “Article 19(1) TEU constitutes an autonomous standard for ensuring that
57 Ibid para 44. 58 Ibid para 45. 59 Ibid para 46.
60 The second paragraph of Article 19(1) TEU states : “Member States shall provide remedies sufficient to
ensure effective legal protection in the fields covered by Union law”.
61 Commission v Poland (n 5) para 47. 62 Ibid.
63 Ibid para 49.
64 Case C-619/18 Commission v Poland (Indépendance de la Cour suprême) [2019] ECLI:EU:C:2019:325, Opinion of AG Tanchev, para 55.
national measures meet the requirements of effective judicial protection, including judicial independence, which complements Article 47 of the Charter”.65 Indeed, in ASJP, the Court explained that Article 19(1) TEU applies in “the fields covered by Union law”, irrespective of whether Member States are implementing Union law, as is required for the applicability of the CFR under Article 51(1) CFR.66 In Commission v Poland, Poland thus argued correctly that Article 47 CFR did not apply, since it was not implementing Union law when reforming the judiciary.67 However, also in this case, the Court relied on Article 19(1) TEU alone to carry out the review. Specifically, the obligations arising from Article 19(1) TEU already apply from the moment a national body could rule as a ‘court or tribunal’ on questions concerning the application or interpretation of EU law.68 This depends on whether the national body fulfils the Dorsch Consult criteria set out in paragraph 2 above; including the requirement of independence. Furthermore, the Court reminded Poland that Member States are required to comply with their obligations deriving from EU law even when they are exercising a competence that belongs to the Member States themselves.69
21. Relying thus on the autonomous standard set out in Article 19(1) TEU, the Court states that the system of legal remedies and procedures that Member States are to establish under this provision must be able to ensure effective judicial protection, within the meaning of Article 47 CFR in particular, in the fields covered by EU law.70 This means in particular that national bodies qualifying as ‘courts or tribunals’ within the meaning of EU law and which form part of the Member State’s judicial system in the fields covered by EU law, must meet the requirements of effective judicial protection.71 To offer such protection, the body must be ‘independent’, which is intertwined with the right to an effective remedy as confirmed by the second paragraph of Article 47 CFR.72 Since the Polish Supreme Court qualifies as a “court or tribunal” within the meaning of EU law and consequently comes within the Polish judicial system in the “fields covered by Union law”, this court must
65 Commission v Poland, Opinion of AG Tanchev (n 64) para 58. In A.K. (Indépendance de la chambre
disciplinaire de la Cour suprême) AG Tanchev refers to a “constitutional passarelle” between both provisions.
Joined Cases C-585/18, C-624/18 and C-625/18 A.K. (Indépendance de la chambre disciplinaire de la Cour
suprême) [2019] ECLI:EU:C:2019:551, Opinion of AG Tanchev, para 85.
66 ASJP (n 1) para 29
67 Commission v Poland (n 5) para 41. 68 Ibid para 51.
69 Ibid para 52. 70 Ibid para 54. 71 Ibid para 55. 72 Ibid para 56.
meet the requirements of effective judicial protection, including the requirement of independence.
22. Finally, the Court thus arrives at the important role played by the requirement of independence. Only independent courts can offer effective judicial protection: “that
requirement that courts be independent, which is inherent in the task of adjudication, forms part of the essence of the right to effective judicial protection and the fundamental right to a fair trial, which is of cardinal importance as a guarantee that all the rights which individuals derive from EU law will be protected and that the values common to the Member States set out in Article 2 TEU, in particular the value of the Rule of Law, will be safeguarded”.73 This closes the circle: without independent courts, there cannot be effective judicial protection; and without effective judicial protection, there cannot be a Rule of Law.
§2. An elevated concept of independence: a general principle of EU law and an obligation under primary law
23. It is clear that ASJP and Commission v Poland have created an elevated concept of independence. First, the Court stressed that judicial independence is a general principle of EU law by referring to the common traditions of the Member States and to fundamental rights provisions codifying the right to effective judicial protection.74 Next, it embedded judicial independence as corollary of the Rule of Law value in Article 2 TEU. Last and perhaps most importantly, maintaining judicial independence became an enforceable primary law obligation that binds Member States “in the fields covered by Union law” under Article 19 TEU. In that regard, Article 19 TEU also sets out a functional notion of the ‘European Judiciary’ as the subject of this ‘new’ primary law obligation: this judiciary encompasses any national body fulfilling the Dorsch Consult criteria that may potentially decide on the interpretation or application of Union law.75 In other words, when a national body qualifies as a ‘court or tribunal’ in the sense of EU law, meaning that it is – amongst other criteria – independent, the Member States are under the obligation to safeguard that body’s independence.
24. While the nature of the concept of independence seems to differ from the previous case law of the Court, the Court filled out the content of judicial independence in the same way
73 Ibid para 58. 74 Ibid para 49.
as it has done since Wilson, reiterating that independence has an internal and external aspect.76 The Court thus relied on the case law it developed in the context of Article 267 TFEU.77 There are arguments to be made in favour of this choice: first, given the relevance of the preliminary ruling system for the EU legal order, the independence requirement under Article 267 TFEU could seem like a good starting point for the creation of a general obligation to protect judicial independence.78 Second, it is practical: the case law under Article 267 TFEU has been developed since years by the Court and is therefore an easy stepping stone.79 Lastly, it ensures consistency: given the close connection between Articles 19 TEU and 267 TFEU, a distinction between both notions of independence might feel artificial and create confusion.
25. However, it is important to denote the differences between the body of case law concerning the preliminary ruling procedure and the new ‘Rule of Law’ cases respectively. In the context of Article 267 TFEU, the requirement of independence serves as one of the factors that will determine whether one specific national body is capable of referring a question for preliminary ruling to the Court. It is not used as a general requirement imposed on all bodies that potentially form part of the European Judiciary. Furthermore, as explained above, the Court’s attitude towards independence has been rather ‘lax’ and fragmented in the context of Article 267 TFEU with a (legitimate) view on broadening access to the preliminary reference procedure, allowing more participants to the dialogue.80 This raises at least some doubt as to whether that body of case law constitutes a suitable standard for assessing whether a Member States has breached its obligations under Article 19(1) TEU.81
26. It is clear that both the equalisation and the differentiation of the concept of independence under Article 267 TFEU and under Article 19 TEU create some challenges. Looking at the Court’s reasoning in Commission v Poland and ASJP, it seems as if ‘independence’ could become an autonomous notion of EU law that has the same content regardless of the context in which it operates. But what are the effects of this ‘Article 19 type of
76 Commission v Poland (n 5) para 71-74.
77 As mentioned in paragraph 10, the specifics of the case in Wilson are slightly different, yet the Court stuck with its definition also in the context of pure admissibility questions under Article 267 TFEU.
78 Tjaša Skočir, ‘European Rule of Law, EU principles and the ECJ: Judicial Response to the Rule of Law Crisis in Poland’ (Master’s Thesis, KU Leuven 2019) 15.
79 Ibid.
80 Paragraph 7. Bonelli and Claes (n 28) 638; de Coster, Opinion of AG Ruiz-Jarabo Colomer (n 11) para 63. 81 Bonelli and Claes (n 28) 638.
independence’ on the possibility for individual judges to refer questions for preliminary ruling to the Court, when Member States fail to fulfil their obligations under Article 19(1) TEU? Are they paradoxically excluded from participating in the dialogue des juges, and thus punished twice? This will be explored in the next Chapter.
CHAPTER II. THE PRACTICAL IMPLICATION OF ‘INDEPENDENCE’
UNDER ARTICLE 19 TEU: A THREAT TO THE FUNCTIONING OF THE PRELIMINARY RULING SYSTEM?
27. In the previous chapter, the notion of independence was explored. This chapter aims to investigate the practical implications of the ‘Article 19 TEU type of independence’ for the functioning of the preliminary ruling system. Indeed, as set out in ASJP, “the
independence of national courts and tribunals is, in particular, essential to the proper working of the judicial cooperation system embodied by the preliminary ruling mechanism under Article 267 TFEU, in that […] that mechanism may be activated only by a body responsible for applying EU law which satisfies, inter alia, that criterion of independence.”82 What happens when a Member State systemically undermines the independence of the judiciary? Does that mean that its courts and tribunals no longer qualify as ‘courts and tribunals’ in the sense of Article 267 TFEU? The next chapter will briefly revisit the conditions for referring a question for preliminary ruling (section 1). Next, it will explore the consequences of systemic deficiencies affecting the independence of the judiciary for the preliminary ruling system (section 2).
SECTION 1. RECAP: THE CONDITIONS OF ARTICLE 267 TFEU
28. In brief, Article 267 TFEU lays down an instrument of cooperation between the Court of Justice and the national courts, by means of which national courts can ask the Court questions on the interpretation or application on EU law when they need those in order to decide the disputes before them.83 In order to make use of this mechanism, certain conditions have to be fulfilled. First, the question must be referred by a ‘court or tribunal’ in the sense of Article 267 TFEU. This requirement refers to the Dorsch Consult criteria which were discussed extensively under Chapter I and which comprise the requirement of independence. Second, the question must be ‘necessary’, meaning that it must enable the
82 ASJP (n 1) para 23.
national body to give judgment in the case pending before it. Under this requirement, the Court has declined to answer purely hypothetical questions.84
29. It is not ground-breaking that questions are declared inadmissible when they arise from bodies that are not independent.85 What is however controversial, is whether systemic deficiencies in a Member States affecting the independence of the judiciary would lead to structural inadmissibility of the questions referred by the judiciary of that Member State.86 SECTION 2. THE ‘BLIND SPOT’ ARGUMENT: DO SYSTEMIC DEFICIENCIES
AFFECTING THE JUDICIARY LEAD TO STRUCTURAL INADMISSIBILITY OF PRELIMINARY QUESTIONS?
30. Until the Court’s judgment in Banco de Santander87, it was unclear whether the case law on ‘independence’ developed under Article 19 TEU would in its turn be incorporated when assessing the admissibility of a preliminary reference. In that case, the Spanish Central Tax Tribunal (Tribunal-Económico Administrativo Central, “TEAC”), had made a reference concerning an issue of state aid. The Court did however not examine the actual content of the references, since it found that the TEAC was not a ‘court or tribunal’ in the sense of Article 267 TFEU and declared the references inadmissible.
31. When examining the qualification of TEAC as a ‘court or tribunal’, it was undisputed that the TEAC fulfilled the criteria that it be established by law, that it be permanent, that its jurisdiction be compulsory, that its procedure be inter partes and that it apply rules of law.88 However, the bone of contention was whether the TEAC fulfilled the criterion of independence.
When assessing compliance with this condition, the Court overruled its earlier findings in
Gabalfrisa, where it had established that the Spanish legislation concerning the TEAs
ensured an acceptable degree of independence by safeguarding a separation of functions between, on the one hand, the departments responsible for management, clearance and recovery of tax and, on the other hand, the TEAs which rule on complaints lodged against the decisions of those departments.89 As mentioned under Chapter I, this ruling was
84 See for example: Case C-244/80 Foglia v Novello [1981] ECLI:EU:C:1981:302.
85 See for example Corbiau (n 18); Criminal Proceedings against X (n 24); Order C-109/07 Pilato [2008] ECLI:EU:C:2008:274; Case C-222/13 TDC [2014]ECLI:EU:C:2014:2265.
86 Bonelli and Claes already hint to a “paradoxical conclusion”. Bonelli and Claes (n 28) 637. 87 Banco de Santander (n 12).
88 Ibid para 52.
criticised for establishing a ‘lax criterion of independence’.90 In Banco de Santander, the Court explicitly noted that its considerations in Gabalfrisa “must be re-examined notably
in the light of the most recent case-law of the Court (i.e. ASJP in particular) concerning, in particular, the criterion of independence which any national body must meet in order to be categorised as a ‘court or tribunal’ for the purposes of Article 267 TFEU”.91 Furthermore, it reiterated its case law from ASJP, stating that the requirement of independence is essential to the proper functioning of the preliminary ruling mechanism, since only independent bodies can activate this mechanism.92 With this ‘new’ lens, the Court then carries out an in-depth analysis of the internal and external aspects of independence, concluding that the TEAC does not comply with the internal aspect of it and therefore does no longer qualify as a ‘court or tribunal’.93
32. While it is possible to view this as “a final tribute to AGs Saggio and Ruiz-Jarabo Colomer”, who firmly disagreed with the Court’s earlier stance that administrative tax tribunals qualify as ‘courts or tribunals’, the implications of this ruling and the reasoning displayed in it are more far-reaching than they might appear at first sight.94 Indeed, it seems – at least from this case – that the notion of ‘independence’ has the same content when examining whether a national body qualifies as ‘court or tribunal’ as a precondition for Article 267 TFEU proceedings as when judging on Rule of Law infringements.95 This also seems to be echoed by President Koen Lenaerts in his speech before the Supreme Administrative Court of Poland, where he concluded by stating first that “in the EU legal
order, a ‘court’ is always to be understood as meaning an ‘independent court’”, followed
by the statement that “judicial independence is, in any event, a prerequisite for any
‘court’ that wishes to engage in a dialogue with the ECJ and with sister courts in other Member States”.96
33. This seems to – at least in theory – open Pandora’s box: courts or tribunals whose independence has been impaired by far-reaching structural changes carried out by the
90 See paragraph 6.
91 Banco de Santander (n 12) para 55. 92 Ibid para 56.
93 Ibid para 64-80.
94 Ricardo García Antón, ‘Can the Spanish Central Tax Tribunal make a preliminary reference under Article 267 TFEU? A ‘final’ tribute to Advocates General Saggio and Ruiz-Jarabo Colomer’ (EU Law Live, 22 January 2020) < https://eulawlive.com/op-ed-can-the-spanish-central-tax-tribunal-make-a-preliminary-reference-under-article-267-tfeu-a-final-tribute-to-advocate-general-saggio-and-ruiz-jarabo-colomer/> accessed 19 July 2020.
95 The Court also seems to imply this in Miasto Łowicz (n 7) para 59.
government would no longer qualify as a ‘court or tribunal’ under Article 267 TFEU and thus be denied access to the preliminary ruling procedure. When the structural change impairs the independence of the entire national judiciary, this would mean that the Member State in question becomes a blind spot on the radar of the Court of Justice.97 None of the bodies belonging to the judiciary would still fulfil the independence requirement and, inevitably, none of those bodies would still have access to the preliminary ruling procedure.98 As apocalyptic as it may sound: that Member State would no longer have ‘courts or tribunals’.
34. While this seems an undesirable and perverse conclusion to draw from the Court’s attempts to safeguard judicial independence, it does not seem unlikely. As stated above, the Court naturally declares questions arising from non-independent bodies inadmissible. Furthermore, structural independence issues have had similarly intrusive consequences: in the context of a European arrest warrant, the Court stated that the executing authority could refuse to surrender a person when it has material, such as that set out in a reasoned proposal of the European Commission adopted pursuant to Article 7(1) TEU, indicating that there is a real risk of breach of the fundamental right to a fair trial under Article 47 CFR on account of systemic or generalised deficiencies affecting the independence of the issuing Member State’s judiciary.99 In that case, the executing authority has to examine whether there are substantial grounds for believing that the individual whose surrender is requested, will run such a risk.100 The European Arrest Warrant, a mutual trust mechanism
par excellence, can thus be crippled by structural independence issues.
35. The reasons for such far-reaching consequences are concisely summarised by Lenaerts in the earlier quoted speech: “Since the enforcement of EU law is decentralised, the entire
EU system of judicial protection is thus predicated on the premise that the Member States
97 In my opinion, the new Polish disciplinary regime for judges, which “allows ordinary court judges to be
subjected to disciplinary investigations, procedures and sanctions on the basis of the content of their judicial decisions, including the exercise of their right under Article 267 of the Treaty on the Functioning of the European Union (TFEU) to request preliminary rulings from the Court of Justice of the EU” is a structural
change that impairs the independence of the entire judiciary. The blind spot argument is thus far from theoretical. Commission, ‘Rule of Law: European Commission refers Poland to the Court of Justice to protect judges from political control’ (Press Release) (Brussels, 10 October 2019) <https://ec.europa.eu/commission/presscorner/detail/en/IP_19_6033> accessed 12 June 2020.
98 Lenaerts draws the same conclusion. Furthermore, he argues that those courts cannot provide judicial protection, since they might not be able to make use of the remedies (such as setting aside national measures) that are provided under EU law. Lastly, undermining judicial independence is detrimental to mutual recognition of judicial decisions. Koen Lenaerts, ‘New Horizons for the Rule of Law Within the EU’ (2020) 21 German Law Journal 31-32.
99 Case C-216/18 PPU Minister for Justice and Equality v LM [2018] ECLI:EU:C:2018:586, para. 79. 100 For the full test to be carried out by the executing authority: ibid para 73-78.
enjoy and cherish an independent judiciary that is capable of providing effective judicial protection of EU rights. However, where that premise no longer holds true, i.e. where judicial independence is lacking, the preliminary reference procedure becomes devoid of purpose, and the principle of mutual trust no more than an empty promise.”.101
36. It is thus clear that systemic deficiencies affecting the independence of the judiciary can have far-reaching consequences for the EU legal order. Becoming a blind spot for the Court of Justice might very well be one of them. The Court has however – so far – not declared preliminary questions arising from the Polish courts inadmissible for being affected by laws that impair their independence.102 Moreover, in Commission v Poland, the Court interestingly has omitted the ‘controversial’ paragraph from ASJP on the essential nature of the characteristic of independence for the proper functioning of the preliminary ruling procedure. The reason for that can only be guessed. One explanation could be the nature of the proceedings: in an infringement action, an obiter dictum on the relevance of the independence requirement for the preliminary ruling system was perhaps not considered useful.103 Yet another – perhaps more likely – explanation could be that the Court did not want to shut the doors prematurely for the Polish courts. Remaining silent might have left the Court the leeway it needs to assess the admissibility of individual questions arising from Polish courts. As described above, the alternative would force the Court to systematically decline jurisdiction concerning these questions. Or does it? This ties in with the next chapter, which will explore whether arguments can be made to support a more lenient stance on independence under Article 267 TFEU.
CHAPTER III. STRUCTURAL INADMISSIBILITY, TRULY INEVITABLE?
37. With Banco de Santander, the Court seems to have set course towards the alignment of ‘independence’ under Article 267 TFEU and Article 19 TEU. The consequences of that approach have been set out in the previous chapter: a structural demise of judicial independence would equal structural decline of jurisdiction for the Court when
101 Lenaerts, Speech at the Supreme Administrative Court of the Republic of Poland (n 16) 17.
102 It should be noted that after Commission v Poland (Indépendance de la cour suprême) Poland repealed the law forming the subject of that case. Nonetheless, the Polish judiciary is affected by multiple legislative changes other than the ones disputed in that case. While not all references made in A.K. were considered admissible, none of them were inadmissible because the referring body was deemed to be no longer a court or tribunal for lacking independence in the sense of Article 267 TFEU. Joined Cases C-585/18, C-624/18 and C-625/18 A.K.
(Indépendance de la chambre disciplinaire de la Cour suprême) [2019] ECLI:EU:C:2019:982.
103 Contrastingly, in the preliminary ruling Miasto Łowicz, the Court did strongly condemn the possible exposure of Polish judges to disciplinary proceedings, as this threatens their independence which is in turn essential to the proper working of the preliminary ruling mechanism. Miasto Łowicz (n 7) paras 57-59.
confronted with preliminary questions arising from the ‘tainted’ Polish courts. This hypothesis has been explored by several authors.104 To this day,105 the Court has however steered clear from declaring questions from Polish courts inadmissible.106 That leaves some room for the following debate: is structural inadmissibility really inevitable, or are there sufficient arguments to support a more flexible interpretation of the independence requirement under Article 267 TFEU? This chapter will explore whether arguments can be found in the specific nature and underlying ratio of the preliminary ruling mechanism as a mechanism of cooperation and vehicle for effective judicial protection (section 1). Next, the arguments found will be tailored to the critical situation regarding the Rule of Law in Poland (section 2).
SECTION 1. THE SPECIFIC NATURE OF THE PRELIMINARY REFERENCE MECHANISM: MAKING A FLEXIBLE APPROACH JUSTIFIABLE?
38. The preliminary reference mechanism plays a key role in the constitutional structure of the European Union.107 Its particular nature as instrument of cooperation and its pivotal role in ensuring the right to effective judicial protection for individuals might justify a more flexible approach towards the criterion of independence when assessing whether a referring body qualifies as ‘court or tribunal’ under Article 267 TFEU. This section will first set out the particularities and the underlying ratio of the mechanism. Next, with those particularities as lens, it will examine the importance of this specific context for the notion of ‘independence’. A leading example in that regard is the opinion of AG Wahl in Torresi, which will be examined in detail in the second subsection.108
§1. The particularities of the preliminary reference mechanism A. An instrument of cooperation between courts
39. In a way, the preliminary ruling mechanism is the logical counterpart of the great responsibility that EU law accords to the courts and tribunals of the Member States.
104 Daniel Sarmiento, ‘The Polish Dilemma’ (Despite our Differences, 17 July 2017) <
https://despiteourdifferencesblog.wordpress.com/page/5/ > accessed 1 July 2020; Lenaerts, ‘New Horizons for
the Rule of Law Within the EU’ (n 98) 31, 32; Bonelli and Claes (n 28) 637. Cf Wahl and Prete (n 15) 527. 105 This research has been concluded on 24/07/2020.
106 See also footnote n 102. The Court seems to proceed with caution. This can also be seen in A.K., where the Court left the final determination whether the Polish National Council of Judiciary and the Disciplinary Chamber of the Polish Supreme Court are independent to the referring court. For an analysis: Sébastien Platon, ‘Writing Between the Lines. The preliminary ruling of the CJEU on the independence of the Disciplinary Chamber of the Polish Supreme Court.’ (EU Law Analysis, 26 November 2019) <http://eulawanalysis.blogspot.com/2019/11/writing-between-lines-preliminary.html> accessed 12 June 2020. 107 See footnote n 7.
Empowered by EU law, national courts set aside national provisions – even of constitutional rank – that are incompatible with EU law;109 they grant interim relief to preserve EU rights;110 and they rule on Member State liability claims.111 When enforcing EU law, it is thus “of paramount importance” that this happens in a uniform fashion, so that every EU citizen can enjoy the same rights.112 Enter the preliminary reference mechanism.
40. The Court has stressed on numerous occasions that the preliminary reference mechanism is an instrument of cooperation.113 Indeed, Article 267 TFEU makes sure that national courts can ask the Court a question on the correct interpretation or application of EU law which they need in order to decide the disputes before them.114 This system is “essential
for the preservation of the [Union] character of the law established by the Treaties and has the object of ensuring that in all circumstances this law is the same in all States of the [Union]”.115 The underlying idea is that the preliminary reference procedure can be used to remedy the difficulties that naturally arise when national judges give full effect to EU law within the framework of their respective judicial system.116 This is important at every stage in the proceedings where EU law is applied or interpreted by a national court or tribunal. For this reason, the preliminary reference procedure has no regard for the hierarchical position of the referring court in the national legal order.117 This way, Union citizens can enjoy ‘ground level access’ to the rights they are granted under EU law at their first exposure to a national judicial system. 118
41. The initiative for the referral lies entirely with the national court that sees itself confronted with a question relating to EU law in the dispute pending before it.119 In that regard, national courts enjoy ‘the widest discretion’ in referring matters to the Court.120 Parties to
109 Case C-106/77 Simmenthal [1978] ECLI:EU:C:1978:49.
110 Joined cases C-143/88 and C-92/89 Zuckerfabrik [1991] ECLI:EU:C:1991:65.
111 Joined Cases C-6/90 and C-9/90 Francovich and Others [1991] ECLI:EU:C:1991:428. 112 Lenaerts, Speech at the Supreme Administrative Court of the Republic of Poland (n 16) 3.
113 A.K. (n 102); Case C-661/17 M.A. and Others [2019] ECLI:EU:C:2019:53, para 48 and the case law cited. 114 Ibid.
115 Case C-166/73 Rheinmühlen-Düsseldorf (‘Rheinmühlen I’) [1974] ECLI:EU:C:1974:3, para 2; Opinion 1/09 (n 7) para 83.
116 Opinion 1/09 (n 7) para 83.
117 This was highlighted in Elchinov, where the Court stressed that lower courts cannot be bound on points of Union law by a ruling of a higher court, if it considers that those rulings are inconsistent with EU law. Case C-173/09 Elchinov [2010] ECLI:EU:C:2010:581, paras 24-32.
118 Koen Lenaerts, Ignace Maselis and Kathleen Gutman EU Procedural Law (Oxford University Press 2015) 51.
119 See, for instance: Case C-283/81 CILFIT [1982] ECLI:EU:C:1982:335, para 9.
the dispute, be it private parties, be it the government, cannot oblige the national court to refer a question: the participants to the dialogue are the national court and the Court of Justice only.121 This discretion is transformed into an obligation for courts of last instance, subject to the well-known CILFIT exceptions.122 This is in line with the “purpose and
raison d’être” of the preliminary ruling mechanism, which dictates that “situations governed by [Union] law do not remain outside the jurisdiction [of the Court] and, consequently, without a uniform interpretation of the rules which regulate them”.123
42. Following this ‘purpose and raison d’être’, the Court has been rather generous in the past when answering questions for preliminary ruling.124 It has encouraged a variety of participants to enter into the dialogue by a flexible interpretation of the Dorsch Consult criteria.125 Furthermore, it attached a ‘presumption of relevance’ to the referred questions: the Court may only refuse to rule on such questions where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it.126 Furthermore, it covered procedural errors by the national courts with the cloak of charity, rephrasing imprecise questions or extracting the relevant information itself.127 While it is true that today there is a tendency towards a more rigorous assessment of the conditions of Article 267 TFEU and compliance with the requirements laid down in the Rules of Procedure,128 the Court nevertheless continues to stress the cooperative nature of the preliminary ruling mechanism and the presumption of relevance.129
43. The preliminary reference procedure is thus characterised by its cooperative nature; establishing a constructive dialogue between courts with the view of ensuring uniform application of EU law throughout the Union for the benefit of all its citizens.
121 CILFIT (n 119) para 9.
122 Case C-689/13 PFE [2016] ECLI:EU:C:2016:199, para 32 ; for the exceptions, see: CILFIT (n 119) para 21 and the operative part.
123 de Coster, Opinion of AG Ruiz-Jarabo Colomer (n 11) para 87.
124 Ibid para 63; Wahl and Prete (n 15) 513; Gerhard Bebr, 'The Possible Implications of Foglia v. Novello II' (1982) 19 Common Market Law Review 421.
125 In his opinion on de Coster, AG Ruiz-Jarabo Colomer goes as far in his criticism as saying that even a reference from Sancho Panza as governor of the island of Barataria [a character from the novel Don Quixote] would be accepted by the Court. de Coster, Opinion of AG Ruiz-Jarabo Colomer (n 11) para 14.
126 See, for instance : Case C-621/18 Wightman and Others [2018] ECLI:EU:C:2018:999, para 27 and the case law referred to.
127 Wahl and Prete (n 15) 544. 128 Ibid 545-546.
129 See, for instance, the recent ruling A.K. (n 102) para 69 (“instrument of cooperation”) and 98 (“presumption of relevance”).
