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.
Factual and legal background
On the 2 October 2018, the Commission launched infringement proceedings against Poland alleging a failure to fulfil its obligations under Article 19 TEU and Article 47 of the Charter. The impugned provisions were Articles 37 and 111 of the New Law on the Supreme Court: these two provisions, read in conjunction, lowered the mandatory retirement age for Supreme Court judges – including those already sitting in the Supreme Court – from 70 to 65 and granted the President of the Republic a discretionary power to extend the judges’ mandate beyond the newly fixed retirement age. The Commission also requested the ECJ an interim measure under Article 160(2) TFEU in order to suspend the applicability of the contested provisions. The measure was granted on the 19 October by the ECJ Vice-President – later confirmed by the Grand Chamber – and, as a consequence, the Polish government decided to repeal the law and reinstate in office the 27 judges concerned by it.
On the 11 April 2019, AG Tanchev delivered its opinion on the case. First, the opinion rejected the inadmissibility plea raised by the Polish government. The AG instead accepted the argument made by the Polish and Hungarian governments that the material scope of Articles 19 TEU and 47 CFR should be assessed separately. The AG opinion held that, albeit the requirements of independence under Article 19 TEU correspond to those under Article 47(2) CFR, ‘a combined application of those two provisions in the absence of assessment under Article 51(1) of the Charter cannot be deduced from ASJP’. Therefore, according to AG Tanchev, Article 19 TEU constitutes an ‘autonomous standard’ against which evaluating the respect of the requirement of effective judicial protection and especially judicial independence. Having established that the New Law on the Supreme Court was not implementing EU law within the meaning of Article 51(1) CFR, the AG consequently assessed the merit of the action solely with regards to Article 19 TEU.
Concerning the merit, the AG quite straightforwardly reach the conclusion that both the lowering of the mandatory retirement age for judges already in charge when the law entered into force, and the discretionary power of the President of the Republic to extend their mandate violated EU law. In the examination of the first complaint, AG Tanchev ultimately seems to propose considering the principle of irremovability of judges as an absolute principle, an interpretation which relies on an interesting combined reading of the two judgments in the infringement proceedings brought by the Commission against Hungary for the lowering of the mandatory age for ordinary judges (C-286/12) and for the premature termination of the personal data supervisor’s mandate (C-288/12). AG Tanchev argued that, whilst in the former case the alignment of retirement age in public service was deemed a legitimate objective in respect of the prohibition of discrimination on the ground of age, in the latter, where the ECJ was asked whether the premature termination of the mandate of the data protection supervisor was compatible with the requirement that the supervisor shall perform his/her duties ‘with complete independence’, the ECJ did not allow any justification to diminish the independence of national supervisory authority. Hence, with an a fortiori argument, the AG concluded that the same should apply in the case of the independence of judges.
The Court’s judgment reaches the same findings of the AG opinion, albeit following a different path. Concerning the procedural aspects, the judgment does not consider necessary to proceed with an assessment of the Charter applicability under its Article 51(1). Contradicting the AG on the point – who supported a separate assessment of the applicability of the two provisions – the ECJ recalled that the principle of effective judicial protection is a general principle of EU law, which Article 47 CFR has only reaffirmed (para. 49). Thus, the ECJ implicitly confirms that all its previous case law on Article 47 CFR is susceptible to assume relevance in the application of Article 19 TEU without the need of assessing the Charter applicability. Also, the ECJ reaffirmed vigorously that the only element to be evaluated when assessing the applicability of Article 19 TEU is whether the court or tribunal concerned ‘may be called upon to rule on questions concerning the application and interpretation of EU law’ (para. 56).
The Court’s assessment of the first complaint probably represents the most innovative part of the judgment. The ECJ – on the point contradicting the AG – clarifies that the principle of irremovability of judges ‘it is not wholly absolute’ and that exceptions are allowed provided that are based on ‘legitimate and compelling grounds’ and subject to principle of proportionality (para. 76). Significantly, the ECJ adds that restrictions should not ‘raise reasonable doubt in the minds of individuals as to the imperviousness of the court concerned to external factors and its neutrality with respect to the interests before it’ (para. 79). Yet, it does not assess the stricto sensu proportionality of the contested measure – as the fact that the objective pursued by the lowering of the mandatory retirement age was not legitimate was sufficient to invalidate the measure. In fact, having regard to all the circumstances of the case and in particular the combined effect of the two measures, the ECJ held that of the reform was to exclude a targeted group of Supreme Court judges (para 85). Hence, the ECJ upheld the Commission’s complaint.
In the analysis of the second complaint, the Court, as a preliminary point stressed that the procedure for extending a judge’s mandate is not comparable to the appointment process of new judges: this caveat significantly restricts the ambit of applicability of the ruling and seems to imply that Member States’ discretion as to judicial appointment processes may be wider. Subsequently, the Court rather than assessing whether the discretionary power granted to the President of the Republic could hinder judicial independence, assessed whether the procedure for extending the judges’ mandate provided sufficient guarantees to protect them from political influence and dispel doubts concerning their independence and impartiality, thus underscoring that the obligation imposed by Article 19 TEU is of a positive nature. Therefore, taking into account the fact that the National Council of Judiciary opinions on the extension’s request are not reasoned and that body itself cannot be considered independent (paras 116-117), the ECJ concluded that the substantially unfettered discretion accorded to the President of the Republic is capable to ‘give rise to reasonable doubts, inter alia in the minds of individuals, as to imperviousness of the judges concerned to external factors’ (para 118).
As a last point, the ECJ felt the need to defend the appointment and renewal process of its own judges, excluding its comparability with the Polish law. The judgment stresses the difference existing between a renewable mandate fixed term mandate – as the one of European judges – and an extension of the mandate beyond the statutory retirement age (para. 121) hence confirming that renewable fixed term mandates in principle are in line with European standards on judicial independence.
There are in my view two main takeaways from the ruling. The first is a welcome clarification of assessing restrictions of judicial independence under Article 19 TEU; an issue that was left open by ASJP, where the ECJ held that since the salary reduction measure was applicable to all civil servants it could not even be considered to curtail judicial independence (para. 51). In Escribano Vindell (C-49/18), a case decided in February this year, where the ECJ assessed compatibility of a salary reduction measure with Article 19 TEU, the ECJ, after having held that the aim pursued by national legislation was legitimate, left to the referring court the task to assess whether the judge’s salary, after the application of the reduction, ‘was commensurate with the importance of the duties he performs’ (para. 74). The present judgment instead affirms that the legitimacy of judicial independence restriction are always subject to a proportionality test. However, the ECJ creates an additional step to be satisfied for the measure to be compatible with EU law: restrictions on the different guarantees of judicial independence, e.g. irremovability, adequate remuneration and judicial immunity, even if they are justified and proportionate, should not raise doubts as to the ‘imperviousness of the court concerned to external factors and its neutrality with respect to the interests before it’. The ruling thus renders judicial independence a quasi-absolute principle: it can be restricted provided that this does not impair the value to which is instrumental, i.e. the appearance of impartiality of the judge.
The second takeaway is that Article 19 TEU does not constitute an autonomous standard of reference in the judicial review of the national remedies in the field covered by EU law. The Court indeed confirmed that effective judicial protection is a general principle of EU law, and its content is not determined with reference Article 47 CFR, which only reaffirmed it. Even though this apparently produces a substantial overlapping of the two provisions spheres of applicability – and a possible circumvention of the Charter’s limits of applicability, as the AG feared – a distinction can be easily drawn. Article 19 TEU, in fact, does not confer a subjective right on individuals, but only impose on Member States a positive obligation to provide sufficient remedies in the fields covered by EU law. This means that a violation of the right to effective judicial protection in concrete cases can only be assessed with regards to Article 47 CFR and it is conditional to a positive verification of the Charter’s applicability under Article 51(1) CFR. However, Article 19 TEU may be invoked by private parties as a parameter of judicial review for assessing the compatibility with EU law of the guarantees provided by national law for judicial independence. At first sight, this combined reading of Articles 19 TEU and 47 CFR seems to preclude the ECJ to elaborate stricter standards under Article 19 TEU, but a closer look reveals that the judgment actually intends to place judicial independence at the core of the EU constitutional order. The ECJ indeed stressed that, being the ‘concrete expression’ of the rule of law values enshrined at Article 2 TEU – on which the Union is founded – Article 19 TEU ensures the continuous respect by Member States of its common foundational values (paras 42, 47). Thus, by reading the requirements of effective judicial protection enshrined at Article 47 CFR into Article 19 TEU, the principle of effective judicial protection, and in particular judicial independence, becomes something more of a general principle – a ‘Meta-norm of the EU judicial architecture’ as it has been said – capable of shaping Member States’ discretionality as to the organisation of their judiciaries.