Questo articolo si propone di esaminare l’evoluzione della tutela dello stato di diritto all’interno dell’ordinamento giuridico dell’Unione Europea. Sulla base della giurisprudenza della Corte di giustizia dell’Unione europea (la “Corte di giustizia”), si possono individuare due fasi distinte. La prima fase è caratterizzata dall’attenzione della Corte volta a garantire la disponibilità di rimedi giurisdizionali effettivi sia a livello nazionale che a livello dell’UE. Tuttavia, sorge la seguente domanda: cosa accade quando misure o prassi nazionali minano il principio stesso dell’indipendenza del potere giudiziario? In tali circostanze, il presupposto su cui si fonda questa fase iniziale diventa insostenibile, poiché solo una magistratura indipendente è in grado di assicurare una tutela giurisdizionale autentica ed effettiva.

La seconda fase, pertanto, si concentra sulla salvaguardia della magistratura nazionale — “difendere il difensore” — contro le misure che ne mettono in pericolo l’indipendenza, consentendo così ai giudici di continuare a garantire i diritti conferiti agli individui dal diritto dell’UE. Anche la giurisprudenza della Corte di giustizia in materia ha conosciuto un proprio processo di evoluzione. Si possono distinguere, da un lato, le sentenze pionieristiche che hanno posto le basi del principio di indipendenza del potere giudiziario e, dall’altro, le sentenze di “seconda generazione” attraverso le quali la Corte ha perfezionato, consolidato e reso operativo tale principio in contesti specifici.

Per quanto riguarda le sentenze di “seconda generazione”, la sfida principale che la Corte di giustizia si trova ad affrontare consiste nel mantenere un delicato equilibrio tra due tendenze opposte: un approccio massimalista, che lascia poco spazio alla diversità nazionale, e uno minimalista, che rischia di privare lo stato di diritto della sua essenza normativa.

SOMMARIO:

I. Introduction - II. Providing the necessary jurisdiction (remedies) - III. First-Generation Cases: A. Why does the judicial independence of national courts constitute a fundamental requirement of the EU legal order?; B. How is judicial independence of national courts protected under EU law? - 1. Protecting Judges as the Arm of EU law - 2. Protecting Judicial Dialogue - 3. Protecting Mutual Trust - 4. Twin principles: constitutional alignment and non-regression - IV. Second-Generation Cases: 1. Four Factors; 2. Between too much and not enough - V. Concluding remarks - NOTE

I. Introduction

As the keynote speaker at this prestigious conference, I have decided to focus on one of the values on which the EU is founded, namely, the value of respect for the rule of law enshrined in Art. 2 TEU. I have chosen to speak about that value because it fits well with the general theme of this year’s conference, which focuses on the territorial and extraterritorial effects of EU law. The values on which the EU is founded produce both types of effects. On the one hand, the scope of EU values mirrors that of the territories of the Member States that are subject to EU law. Therefore, those values apply across the EU – from Helsinki to Sicily, from Warsaw to Lisbon, and from Bucharest to Tenerife­ – and are the bedrock on which the EU may establish an area without internal frontiers where citizens may move freely and securely. On the other hand, writing extrajudicially, I have argued that the principle of autonomy – understood as a means of protecting and promoting the values on which the EU is founded – may produce a specific type of “Brussels effect”, whereby economic operators, who wish to have access to the internal market, located in third countries are required to align their practices to EU values.[1] Where the conditions of the Brussels effect are met, the principle of autonomy operates as a powerful instrument that promotes liberal values outside the EU, enabling the latter to operate as a beacon of freedom, democracy and justice for the wider world. Values—and notably the rule of law—will undoubtedly underpin the academic discussions scheduled for today and tomorrow. Seven years after the Court of Justice delivered its seminal judgment in Associação Sindical dos Juízes Portugueses,[2] the time seems right to take stock of the case law of the Court of Justice on the value of respect for the rule of law in general, and on judicial independence in particular. I shall divide my speech into three parts. First, I shall examine the case law predating that seminal judgment, arguing that providing national courts with the necessary jurisdiction (remedies) was deemed enough to secure compliance with the rule of law.[3] Second, I shall argue that providing such jurisdiction is not enough when judicial independence comes under threat. That is because only independent judges may provide effective judicial protection to the rights that EU law confers on individuals (effective [continua ..]

II. Providing the necessary jurisdiction (remedies)

More than fifty years ago, the Court of Justice famously held in van Gend en Loos that the judicial protection of EU rights is based on a system of dual vigilance.[4] In addition to the supervision carried out at the EU level by the European Commission and the Member States, individuals are entitled to rely on their EU rights in the national courts.[5] The enforcement of EU law is largely decentralised, in so far as the Treaties—and in particular Art. 19 TEU—entrust ‘the responsibility for ensuring the full application of EU law in all Member States and judicial protection of the rights of individuals under that law to national courts and tribunals and to the Court of Justice.’[6] In the EU, judicial power is shared between the EU courts and national courts. It is for the Court of Justice to say what the law of the EU is, and for national courts—as the ‘courts of general jurisdiction’ of the EU—to apply that law. National courts have thus played a leading role in upholding the rule of law within the EU. In cooperation with the Court of Justice, they have relied on EU law in order to provide effective remedies to EU rights conferred upon individuals. By virtue of EU law, national courts have provided access to justice where national law prevented those courts from second-guessing the decisions of public authorities.[7] They have set aside conflicting legal norms, including those of constitutional rank.[8] They have also granted interim, declaratory, and monetary relief, even when national law failed to provide those remedies.[9] In providing judicial protection, national courts may engage in a dialogue with the Court of Justice. The preliminary ruling mechanism, which is the keystone of the EU system of judicial protection,[10] ensures the uniform interpretation and application of EU law. That mechanism also guarantees that citizens across the EU enjoy equal protection under EU law. Since the dialogue between national courts and the Court of Justice is based on the law—and nothing but the law—access to the preliminary ruling mechanism is only open to courts that are independent. Judicial independence is required because it guarantees that the national court referring a question to the Court of Justice will not take political considerations into account when making the reference or when implementing the Court’s judgment. Until recently, providing the necessary remedies was deemed [continua ..]

III. First-Generation Cases: A. Why does the judicial independence of national courts constitute a fundamental requirement of the EU legal order?; B. How is judicial independence of national courts protected under EU law?

In Associação Sindical dos Juízes Portugueses, the Court of Justice delivered a groundbreaking judgment, which contributed to defining the very identity of the EU as a rule-based legal order. It is safe to say that that judgment is a classic of EU law, just like van Gend en Loos, Costa v ENEL, Simmenthal, Brasserie de Pêcheur, to name just a few. In that seminal judgment, and in the subsequent ones, the Court of Justice explained why the judicial independence of national courts must be protected, and how such independence is safeguarded under EU law. A. Why does the judicial independence of national courts constitute a fundamental requirement of the EU legal order? As to the reasons why the judicial independence of national courts constitutes a fundamental requirement of the EU legal order, structural considerations weigh heavily in the Court’s reasoning. Judicial independence, which gives concrete expression to the value of respect for the rule of law, seeks to protect both the constitutional structure set out in the Treaties and the functioning of that structure. As the Court of Justice observed in Opinion 2/13, the EU has its own constitutional structure that enables it to uphold the values on which it is founded, and to attain the objectives set out in the Treaties. This constitutional structure not only includes the EU institutional design but also ‘a [network] of principles, rules and mutually interdependent legal relations linking the EU and its Member States, and its Member States with each other’.[14] As an essential component of that constitutional structure, the EU judicial architecture serves to secure the operation of the principles of effective judicial protection and of equality before the law. Both principles are an integral part of the rule of law within the EU.[15] The EU judicial architecture further seeks to facilitate the operation of the twin principles of mutual trust and mutual recognition. That architecture includes not only the EU Courts (the Court of Justice and the General Court) but also the courts of the Member States, which are the courts of general jurisdiction for the application and enforcement of EU law. National courts are therefore an essential building block of the EU constitutional structure,[16] playing three vital roles within it. First and foremost, they are to provide individuals with effective judicial protection of their EU rights. It is therefore for the [continua ..]

1. Protecting Judges as the Arm of EU law

To begin with, Art. 19(1) TEU, which gives concrete expression to the rule of law,[21] imposes on the Member States the obligation to provide effective remedies ‘in the fields covered by EU law’. Given that there is an unbreakable link between effective remedies and independent courts, that Treaty provision obliges the Member States to protect that independence. Since that independence serves, in turn, to protect the integrity of the EU judicial architecture, the Court of Justice has interpreted the scope of application of that Treaty provision in the light of structural considerations. Unlike Art. 51(1) of the Charter, the application of Art. 19(1) TEU is not made conditional upon EU law being implemented in the case at hand. That Treaty provision applies where a particular body, which is considered to be a ‘court or tribunal’ within the meaning of EU law, enjoys jurisdiction over questions pertaining to the interpretation and application of that law.[22] If that is the case, Art. 19(1) TEU applies, protecting the independence of such a court. That Treaty provision protects that independence at all times. That is because only such permanent protection may prevent the entire edifice of EU judicial remedies from collapsing.[23] In particular, unlike Art. 47 of the Charter, the scope of application of Art. 19(1) TEU is not limited to protecting the rights that EU law confers on individuals.[24] Acting in an individual capacity, a judge, just like any person, has the right to ‘an independent judge or tribunal’ enshrined in Art. 47 of the Charter, provided that he or she requests the judicial protection of his or her EU rights.[25] Acting in an institutional capacity, a judge whose independence is being undermined by executive or legislative action may bring proceedings before another court on the ground that such a course of action is contrary to Art. 19(1) TEU. This is so regardless of whether his or her EU rights are directly at issue.[26] The guarantees of independence and impartiality required under EU law apply to national rules regarding, inter alia, the appointment, length of service and grounds for abstention, rejection and dismissal of judges, as well as different rules determining the disciplinary regime and type of personal liability for judicial error applicable to them. In order to determine whether national law complies with those guarantees, the Court of Justice has developed the so-called test of [continua ..]

2. Protecting Judicial Dialogue

The principle of judicial independence under EU law serves to protect the integrity of the judicial dialogue between the Court of Justice and national courts. This is done in two different, albeit mutually reinforcing, ways. First, access to the preliminary ruling mechanism is limited to national courts, which are independent. This limitation reflects the principle that judicial dialogue must remain insulated from political considerations and anchored exclusively in the authority of law. In that regard, the Court of Justice has held that if a reference is made by a court established by national law, i.e. belonging to the national judiciary, such a court will be presumed to be a court or tribunal within the meaning of Art. 267 TFEU. However, in Getin Noble Bank, [33] the Court of Justice held that such a presumption may be rebutted where a final ruling of a national or international court, such as the ECtHR, finds that the judge constituting the referring court is no longer independent.[34] Moreover, the Court applies the principle according to which the presence of a single judge who is part of the panel of the referring court, and whose appointment raises reasonable doubts in the minds of individuals regarding his or her independence and impartiality, is sufficient to prevent the referring court from having access to the preliminary ruling mechanism.[35] In Krajowa Rada Sądownictwa (Continued holding of a judicial office), the Court of Justice ruled, for the first time, that a chamber of a court, namely the Chamber of Extraordinary Control and Public Affairs of the Polish Supreme Court, was not independent and as a result, could not engage in a dialogue with the Court of Justice.[36] This was because the appointment procedure of the judges sitting in that Chamber gave rise to reasonable doubt in the minds of individuals as to the independence and impartiality of the judges concerned. In that regard, the Court based its ruling on a final judgment respectively of the Polish Supreme Administrative Court and of the ECtHR,[37] concerning that appointment procedure.[38] Second, EU law prevents Member States from threatening national courts with the prospect of opening disciplinary proceedings where a national court engages in a dialogue with the Court of Justice. Indeed, the prospect of disciplinary proceedings against courts which have made a reference could have a ‘chilling effect’ on all courts of the Member State concerned, since those [continua ..]

3. Protecting Mutual Trust

The Court of Justice has consistently held that the principle of mutual trust and the principle of judicial independence go hand-in-hand in the AFSJ. The free movement of judicial decisions can only take place if the Member States trust each other to be equally committed to upholding the values on which the EU is founded, notably the rule of law. More often than not, the execution of judicial decisions in the AFSJ entails the adoption of coercive measures that limit the fundamental rights of the person concerned, especially the right to liberty. In the context of the European Arrest Warrant (the ‘EAW’), this is, for example, regularly the case. Only an independent court may guarantee that the judicial decision to be recognised and enforced was adopted in keeping with the fundamental rights guaranteed by the Charter. This means, in essence, that if an EAW is issued by a national court that is not independent, such a warrant may not be executed. In Openbaar Ministerie (Tribunal established by Law in the issuing Member State), the Court of Justice confirmed the two-step examination that the executing judicial authority must follow before refusing the execution of an EAW. In that case, the Court found that the two-step examination that was put forward in the seminal Celmer case – which involved the requirement of judicial independence[40] – also applied mutatis mutandis in relation to the right to a tribunal previously established by law. This was because of ‘the inextricable links which… exist, for the purposes of the fundamental right to a fair trial, within the meaning of [Article 47 of the Charter], between [those two] guarantees’.[41] More recently, in Puig Gordi and Others, decided this January, the Court of Justice confirmed once again the two-step examination, holding that it also applies to cases where the person concerned risks being tried by a court that lacks jurisdiction.[42] It is worth recalling those two steps. The first step focuses on the operation of the justice system of the Member State concerned as a whole.[43] The executing judicial authority must, in the light of objective, reliable, specific and properly updated material, find that there is a real risk of a breach of the fundamental right to a fair trial. This risk must be connected in particular with a lack of independence of the courts of the issuing Member State or a failure to comply with the requirement for a tribunal [continua ..]

4. Twin principles: constitutional alignment and non-regression

Moreover, in Repubblika,[45] the Court of Justice put forward two constitutional principles that seek to guarantee the proper functioning of the EU constitutional structure, i.e. the principle of constitutional alignment and the principle of non-regression in value protection. First, a candidate State for EU membership must align its own constitution and national identity with the values on which the EU is founded as a condicio sine qua non for accession. The ‘Copenhagen Criteria’ require, inter alia, strict adherence to that alignment. The decision to align its own constitutional arrangements with EU values is the sovereign choice of a candidate State for EU membership.[46] However, if a candidate State fails to do so, Art. 49 TEU bars it from becoming a member of the EU.[47] The principle of constitutional alignment means, in particular, that a Member State may not invoke its national identity in order not to comply with Art. 2 TEU and the Treaty provisions which give concrete expression to the values on which the EU is founded.[48] Acquiring the status of a Member State is, therefore, a ‘constitutional moment’ for the State concerned since, at that very moment, the legal order of the new Member State is deemed by the ‘Masters of the Treaties’ to uphold the values on which the EU is founded. Second, after accession, the Member State in question commits itself to respecting those values for as long as it remains a member of the EU. That ongoing commitment means that there is ‘no turning back the clock’ when it comes to respecting the values contained in Art. 2 TEU. Accession is the starting point in value protection, not the finish line. A Member State can always improve its level of value protection. However, EU law precludes a Member State from drifting towards an authoritarian regime or from falling into democratic backsliding. ‘Compliance with those values’, the Court of Justice has held, ‘cannot be reduced to an obligation which a candidate State must meet in order to accede to the [EU] and which it may disregard after its accession’.[49] The Member States must respect those values ‘at all times’.[50]

IV. Second-Generation Cases: 1. Four Factors; 2. Between too much and not enough

1. It may be argued that the case law of the Court of Justice on judicial independence is gradually entering a new phase, in which the Court is required to reinterpret established principles across diverse contexts. The emergence of this new phase in the case law on the rule of law can be inferred from four factors. First, cases concerning the principle of judicial independence are no longer allocated exclusively to the Grand Chamber. Instead, several cases have been decided by five-judge chambers.[51] This is the case, for example, of Prezes Urzędu Ochrony Konkurencji i Konsumentów,[52] in which the Fifth Chamber of the Court of Justice held that the Civil Chamber of the Polish Supreme Court, sitting in a single-judge formation, did not constitute a ‘court or tribunal’ within the meaning of Art. 267 TFEU. The reference made by the Civil Chamber was therefore declared inadmissible. In reaching that conclusion, the Court of Justice drew on its previous findings in Getin Noble Bank and Krajowa Rada Sądownictwa (Continued holding of a judicial office). It relied on a final judgment respectively of the Polish Supreme Administrative Court and of the ECtHR,[53] concerning the appointment procedure of the judge concerned. The Court of Justice found that ‘the flaws in the process leading to the appointment of [the judge concerned which were] identical to those in the procedure for the appointment of judges of the Extraordinary Review and Public Affairs Chamber, and [were] sufficient, in themselves, to give rise to legitimate and serious doubts, in the minds of individuals, as to the independence and impartiality of that judge’.[54] Second, the ECtHR has consistently referred to the case law of the Court of Justice when deciding cases that also focus on judicial independence. This is indicative of the importance, depth and significance of the Court of Justice’s case law in the European legal space. To name just a few examples, the ECtHR has referred to the judgment of the Court of Justice in A. K. and Others (Independence of the Disciplinary Chamber of the Supreme Court) and to that in Commission v. Poland (Independance of the Supreme Court) when interpreting the principle of irremovability of judges.[55] More recently, referring again to those two judgments, the ECtHR held in Reczkowicz v. Poland that the procedure for the appointment of the members of the Disciplinary Chamber of the Polish Supreme Court was [continua ..]

V. Concluding remarks

EU law does not seek to impose a particular constitutional model. Time and again the Court of Justice has stressed the fact that the organisation of the justice system falls within the competences of the Member States. Some Member States have administrative courts, others do not. Some have a Constitutional Court, others do not. Those choices are for the Member States – and for the Member States alone – to make according to their own history and tradition. However, in the EU legal order, national justice systems are not insulated from interactions with other legal systems, as this conference will demonstrate. Vertically, by means of the preliminary ruling mechanism, national courts and the Court of Justice strive to secure the uniform interpretation of EU law. They work together in order to develop EU law as the law common to the 27 Member States. The uniform interpretation of EU law guarantees the equality of citizens before the law. Horizontally, this interaction seeks to establish an AFSJ by facilitating the free movement of judicial decisions. The cooperation between national courts in civil and criminal matters gives rise to the exterritorial application of national law. Yet, the vertical and horizontal interlocking of legal orders can only take place if EU courts and national courts trust each other. Trust can only arise if those courts share the same degree of commitment to the values on which the EU is founded. Compliance with the value of respect for the rule of law in general, and respect for judicial independence in particular, prevent the EU legal order from fragmenting. National courts are building blocks of the EU judicial system. Without independent national courts, that system would simply collapse. Most importantly, independent national courts are part of our identity as Europeans. Judicial independence must not only be protected in the courtroom, but also in the classroom. Legal scholars must be proactive in stressing the importance of the values on which the EU is founded. It is only by educating new generations of Europeans in ‘the value of values’ that the future of the European integration may move forward.

NOTE