The Importance of Judicial Independence:
It is presumed that national courts will remain independent from their legislature and executive for direct effect to work. Enforcement of EU law is crucially dependant on member states buying into enforcement. Without this, the EU lacks a good means of ensuring its law applies across member states.
Lenaerts (President of the ECJ and influential academic) argues that European integration can only take place when the institutions and member states respect the rule of law and are committed to independent courts. [1]
‘judicial independence must be preserved so that the EU remains a “Union of democracies,” a “Union of rights,” and a “Union of justice.”’
‘The EU's mission to bring states together based on civilising and liberal values in order to prevent regression into fascism and conflict in Europe is based entirely on respect for the rule of law. Legal constitutionalism is the integrative force of the EU.’ [2]
Member states have attempted to limit the role of national judges in enforcing EU law.
Recent Challenges (particularly in Poland and Hungary):
Lowering mandatory retirement age.
Court-packing – promoting judges favourable to the government into higher courts.
Disciplinary procedures against certain judges engaging with PRP.
Constitutional limits through ultra vires review.
The CJEU developed notion of judicial independence, relying on the implicit norms of mutual trust and recognition, effective judicial protection (TEU Art 19), the use of the preliminary reference procedure (TFEU Art 267), and requirement for effective remedies (CFR Art 47).
In CELMER, the CJEU lays down what judicial independence means.
[63]: ‘presupposes that the court concerned exercises its functions wholly autonomously, without being subject to any hierarchical constraints of subordinated to any other body and without taking orders or instructions from any source whatsoever’
[64]: ‘requires certain guarantees appropriate for protecting the person of those who have the task of adjudicating in a dispute, such as guarantees against removal from office and their receipt of a level of remuneration commensurate with the importance of their functions’
[66]: ‘those guarantees of independence and impartiality require rules, particularly as regards the composition of the body and the appointment, length of service and grounds for abstention, rejection and dismissal of its members, in order to dispel any reasonable doubt in the minds of individuals as to the imperviousness of that body to external factors and its neutrality with respect of the interests before it’
[67]: ‘the requirement of independence also means that the disciplinary regime governing those who have the task of adjudicating in a dispute must display the necessary guarantees in order to prevent any risk of its being used as a system of political control of the content of judicial decisions’
In COMMISSION v POLAND, among other constitutional reforms, Poland established the Disciplinary Chamber of the Polish Supreme Court (DCSC), which was used review the content of judicial decisions, including the use references to the CJEU. They also lowered the retirement age of judges.
The CJEU ruled that this was in violation of Art 19 TEU and Art 267 TFEU. Poland do nothing to fix this, and the Commission take them back to court. The CJEU impose a €1m/day fine. Poland has still not paid this.
Alternative Enforcement Structures:
There is a limit to enforcing EU law through the law; member states have learnt that they can push back and refuse to accept certain aspects of EU law that they disagree with. Historically, the EU has not had a robust way of dealing with this. Now, economic means can be used to incentivise enforcement.
Enforcement Beyond Law – Buying Compliance:
The Commission has withheld EU funds from Poland and Hungary because they have not been implementing, and have in fact been damaging, democratic standards. This is known as the rule of law backsliding.
Conditionality Clauses:
The rule of law conditionality clause in the EU budget allows the disbursement of funds be limited where member states have undermined the rule of law. This is a threat to withhold EU funding, which is massively important to domestic budgets.
Regulation 2020/2092: affects ‘breaches of the principles of the rule of law in a Member State which affect or seriously risk affecting the sound financial management of the Union budget or the protection of the financial interests of the Union in a sufficiently direct way’.
Also see ‘Rule of Law Crisis’ – Fundamental Rights Week.
Resources:
References:
[1] Lenaerts, ‘New Horizons for the Rule of Law within the EU’ (2020) GLJ 29 [2] Smith, ‘Staring into the abyss: A crisis of the rule of law in the EU’ (2019) ELJ 562
Cases Mentioned:
Case C-216/18 Celmer
Case C-791/19 Commission v Poland; Case C-204/21 Commission v Poland
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