By Marco Antonio Simonelli
On the 24 June, the European Court of Justice (‘the ECJ’ or ‘the Court’) delivered the long-awaited judgment in Commission v Poland (C-619/18). This judgment represents the most significant offspring of Associação Sindical dos Juízes Portugueses (‘ASJP’); the ECJ in fact, for the first time declared the incompatibility of a national provision on the ground that it violated Article 19 TEU. Whoever has followed the proceedings since the beginning could not be surprised by this outcome – as the interim measure of the 19 October 2018 largely anticipated it – yet the judgment is much more than a simple application of the principles set out in ASJP. The judgment indeed makes clear that the legitimacy of any restriction of the principle of judicial independence is subject to a proportionality scrutiny, but at the same time it seems to consider judicial independence as a quasi-absolute value. Also, the ECJ took the chance the define the contours of Article 19 TEU scope of applicability; thus consolidating its Article 19 TEU case law. Continue reading
By Johannes Graf von Luckner
It is a statement that one would more readily expect from political activists – it was, however, issued by the Court of Justice of the European Union (CJEU): Public prosecutor’s offices in Germany are not sufficiently independent to issue European arrest warrants (EAWs) (Joined Cases C-508/18 and C-82/19 PPU, OG and PI).
The case is sending shock waves through Germany’s judiciary, although it was not wholly unexpected after Advocate General Campos Sánchez-Bordona stated, in his Opinion preceding the judgment, that he had been waiting for an opportunity to comment on German prosecutors’ independence.
The purpose of this post is to summarise the Court’s legal reasoning and to give a brief overview of the implications the judgment might have for Germany, German EAWs, and other Member States. Continue reading
By Marco Antonio Simonelli
On 8 October, four new Judges and two Advocates General officially entered into office at the Court of Justice of the European Union (henceforth ‘the Court’). Just two days before, the U.S. Senate had confirmed the appointment of Brett Kavanaugh to the U.S. Supreme Court. Whilst the latter process had attracted the attention of media from all over the world, the appointment of the new European judges had barely made the news. This situation is reflected also in the academic world, which, surprisingly, never showed much interest in the Court’s appointment process.
However, this does not mean that the procedure set out at Articles 253-255 of the Treaty on the Functioning of the European Union (henceforth “TFEU”) is immune to criticism. Two aspects in particular appear capable to negatively affect the appearance of independence of the European Judges: the duration of the mandate – 6 years – and the lack of transparency of the whole process which is dominated by national governments. These flaws may be one of the reasons why the Court had elaborated a minimal definition of the concept of judicial independence; a definition that may need to be reshaped in order to tackle the judicial reform enacted by the Polish government.
The concerns related to the transparency of the procedure and the discretion of national executives have been partially addressed by the Lisbon Treaty, with the creation of the s.c. Article 255 Panel. This Panel, composed of senior members of national judiciaries, former members of the Court and one person chosen by the European Parliament, is charged with the task to confirm a candidate’s suitability to perform the duties of Judge or Advocate General. Notwithstanding the undoubtedly positive effects produced by the panel on the quality of candidates, serious concerns remain regarding the transparency of its work: the Council Decision 2010/124/EU establishing the operating rules of this Panel, provides that both the hearing of the candidate and the deliberations of the body shall take place in private. Hence, the introduction of Article 255 Panel has been effectively dubbed as a form of “progress by stealth”.