Juan Gálvez Galisteo (PhD pupil on the College of Seville, enterprise a analysis keep on the College of Minho)
I.
27 February 2018. That is the date on which the Court docket of Justice of the European Union (CJEU) handed down its landmark judgment within the “Portuguese Judges” case [Associação Sindical dos Juízes Portugueses v. Tribunal de Contas (ASJP)].[1] Seven years have handed since that essential judgment within the ongoing means of European integration. Was its significance foreseeable on the time? May anybody have predicted that it could have such a profound impression on democratic coexistence throughout the European Union (EU)? What penalties did this judgment have? Does it nonetheless have an effect within the present European context? What issues needs to be weighed up for the long run?
This textual content goals to analyse these points, albeit briefly, with a purpose to contribute to and encourage the tutorial debate on the constitutionalisation of the European Union and the defence of its values, as set out in Article 2 of the Treaty on European Union (TEU), with particular consideration, for apparent causes, to the rule of regulation.
II.
The ASJP case arose as a part of a preliminary ruling process submitted to the CJEU by the Portuguese Supreme Administrative Court docket, utilizing the process laid down in Article 267 of the Treaty on the Functioning of the European Union (TFEU). On this reference for a preliminary ruling, the CJEU was requested to rule on the compatibility with EU regulation of a brief discount within the salaries of the judges of the Portuguese Court docket of Auditors (Tribunal de Contas), by way of a regulation that applied a wage discount for civil servants in Portugal throughout a interval marked by the financial disaster. Particularly, the query was whether or not such measures have been appropriate with the precept of judicial independence, within the mild of the second subparagraph of Article 19(1) of the TEU and Article 47 of the Constitution of Basic Rights of the European Union (CFREU), in addition to the case regulation of the CJEU.
In its ruling, the Court docket expressed the compatibility of the wage discount measures adopted, however it was not the difficulty of judges’ remuneration that obtained essentially the most consideration from the Court docket. This got here as no shock within the educational discourse, each in Portugal and in different international locations.[2] And this was because of the alarming judicial reform actions carried out by some EU member state governments within the years main as much as the judgment in query.
It’s well-known that the CJEU has progressively codified the values set out in Article 2 of the TEU. On this regard, contemplating the explanations that make this judgment so vital, we’re confronted with the modern and unique interpretation of the second subparagraph of Article 19(1) of the TEU – “Member States shall present the cures vital to make sure efficient judicial safety within the fields lined by Union regulation” –, by way of which the Court docket emphasises that that is the concretisation of the worth of the rule of regulation enshrined in Article 2 TEU. Judicial independence, one of many important rules of the rule of regulation, expressed in Article 19 TEU and Article 47 CFREU, had not been explicitly outlined within the Treaties. Subsequently, it was as much as the CJEU to take the lead in its concretisation throughout the EU.
In that landmark ruling, the CJEU developed the notion of judicial independence, stating that it entails that “…the physique involved workout routines its judicial capabilities wholly autonomously, with out being topic to any hierarchical constraint or subordinated to another physique and with out taking orders or directions from any supply in anyway, and that it’s thus protected towards exterior interventions or strain liable to impair the impartial judgment of its members and to affect their selections…” and likewise referring to the irremovability and applicable remuneration for his or her duties as ensures of judicial independence.[3]
As soon as outlined, the CJEU positioned judicial independence as an inherent facet of the judicial perform, making it a decisive criterion for guaranteeing that residents can take pleasure in efficient judicial safety.[4] Moreover, as had already been demonstrated within the Wilson case,[5] the Court docket reiterated that judicial independence has each an exterior and an inside dimension. The exterior dimension refers to issues associated to the unfettered efficiency of judicial duties with out exterior or administrative pressures, in addition to the organisation of the judiciary itself – that’s, it impacts points comparable to irremovability, remuneration, or entry to the judicial profession –, whereas the inner dimension pertains to impartiality earlier than the events when resolving instances. On this manner, the Court docket additional established that an enough judicial evaluate, as an expression of efficient judicial safety, is inherent to the rule of regulation.
The CJEU gave substance and operationalised the efficient judicial safety recognised within the second subparagraph of Article 19(1) of the TEU for the proclamation and defence of its values, creating an controversial extension of its scope of safety, by which “the fields lined by Union regulation” embody a wider margin than the scope of Union regulation (“when they’re implementing Union regulation”, as supplied for in Article 51 CFREU), whereas nonetheless navigating the boundaries of the precept of conferral of powers. Consequently, by way of this modern interpretation of Article 19 TEU, the Court docket has successfully given itself the ability to evaluate nationwide guidelines on the organisation and administration of justice, one thing which was not expressly supplied for within the Treaties and which was historically reserved for and intrinsically linked to nationwide sovereignty.[6] This self-concession of competences was justified within the title of the effectiveness of European regulation, since nationwide courts are potential enforcers of Union regulation; thus, the CJEU thought of them to be a part of the “European judiciary” that should respect the values of the Union.[7]
Primarily based on the above, the nationwide decide, as an EU decide (Simmenthal case),[8] should possess independence as a assure of the efficient judicial safety of European residents. Efficient judicial evaluate isn’t solely the duty of the CJEU but additionally of nationwide courts, which collectively type the “European judiciary.” The our bodies that make up this judicial system should meet the necessities of efficient judicial safety, which is primarily an obligation of the Member States. Within the occasion of non-compliance, and attributable to its significance in relation to widespread values, this may increasingly necessitate intervention by the EU.
Furthermore, the independence of the judicial our bodies of the varied Member States was highlighted as important to European integration, aimed toward fostering mutual belief and constant cooperation [Article 4(3) TEU] in judicial dialogue, with specific consideration to procedures for arrest and give up.
Thus, the ASJP case actually earned its repute as a result of it helped to concretise the idea of the rule of regulation by way of a defining aspect comparable to judicial independence, confirmed the European judicial structure, with judges who’re organically nationwide however functionally European.[9] And, because of this, it reminded us that to be a part of the EU, judicial independence is required each within the organisation of the administration of justice and within the courts answerable for making use of EU regulation, emphasising that EU is an organisation primarily based on the rule of regulation (“Union of regulation”).
In conclusion, because of the rules outlined within the ASJP case, it may be thought of a key reference within the development of a Union of regulation, and is completely similar to the paradigmatic declaration for the conception of a Union of regulation in Les Verts case.[10] By “judicial integration”[11] the CJEU reconfigured the constitutional order of the EU[12] and positioned nationwide measures that might have an effect on judicial independence beneath its supervision, which proved basic in opening the door to its intervention regarding Polish judges.[13]
III.
As anticipated, the Court docket of Justice was eager to have its say within the rising debate on the disaster of the rule of regulation within the European authorized space, with specific consideration to measures that might jeopardise judicial independence in Poland and different Member States. Its interpretation within the ASJP case was essential in resolving the preliminary rulings and infringement proceedings that arose within the Polish saga. Though case regulation on this space has largely developed within the context of the Polish case, it shouldn’t be forgotten that the CJEU has additionally needed to intervene in response to requests from different Member States, comparable to within the Repubblika case[14] or the Asociaţia Forumul Judecătorilor din România case.[15]
The truth is that the EU couldn’t stay inactive within the face of this regarding dynamic. The destructive pattern in issues regarding judicial independence couldn’t be handled as an inside subject of the Member States, because it was primarily a European constitutional disaster attributable to its impression on European values. A poor rule of regulation on the nationwide degree can be a poor rule of regulation throughout the EU.[16] Moreover, its shortcomings had a broader affect on different values, and the rule of regulation was being positioned as the all-affected precept,[17] which means that inside populism with clear nationalist tendencies and its typical practices have been clashing with the European integration course of.[18]
As anticipated, the intervention of the CJEU and the European establishments typically was not properly obtained by the populist nationwide governments. Poland expressed its rejection of the CJEU’s intervention, arguing that the organisation of nationwide justice administration couldn’t fall throughout the Union’s competences and that such issues have been inside areas the place States loved a large margin of discretion.[19] In any case, it is very important spotlight that, regardless of the controversies and arguments towards it, the Court docket has remained steadfast in its function since ASJP.
Moreover, it needs to be famous that within the face of the failure of different avenues, comparable to political options or dialogue, notably the mechanism supplied for in Article 7 of the TEU, it was the CJEU that took the strongest stance in defence of the rule of regulation within the EU, largely because of the truth that the ASJP ruling ensured a better degree of enforceability of European values.[20]
Presently, it can’t be mentioned that threats to judicial independence are merely a foul reminiscence throughout the European group. Nevertheless, because of the CJEU’s interpretation of Article 19 TEU, the EU has made vital progress in its constitutionalisation, establishing that nationwide courts are sure by the elemental rules of the Union as a result of they’re key parts of the Union’s judicial system.[21] Whereas States retain the liberty to organise their nationwide powers in keeping with their preferences, the Union, by way of its Court docket of Justice, reserves the best to oversee such measures.[22]
With out the ASJP judgment, the defence of the rule of regulation in Europe over the past 8 years would most likely not have had the identical impression. The interpretation in that February 2018 case has been frequently reiterated, as soon as once more positioning the intervention of the Court docket of Justice as the important thing aspect in responding to the EU’s challenges, and permitting the work of different establishments to develop, such because the European Fee and its proposals for strengthening the rule of regulation, its annual experiences, or the approval of the Rule of Legislation conditionality regulation. All of them play a component, however the CJEU and its jurisprudence, notably within the ASJP case, are essential devices for defending the rule of regulation towards present and future challenges.
IV.
The function performed by the CJEU, as very important because it has been at different key moments in European integration, leads us to contemplate that maybe it deserves and requires an evaluation of its place within the face of great violations of European values.[23] It’s attainable to mirror on institutional engineering reforms that will enable for its intervention and rulings within the face of potential threats, amongst different causes, as soon as the clear inefficiency of the necessities of Article 7 TEU has change into evident.
If a European judiciary has been totally established, with the CJEU at its apex, it might be useful to advocate for an applicable system of appeals, past the function nationwide courts should play in judicial dialogue by way of the submission of preliminary questions beneath Article 267 TFEU, which is prime for giving substance to basic rights by way of the evaluation of home laws.[24]
Judicial integration is significant for the effectiveness of European regulation, in addition to for the promotion of EU values and the prevention of potential dynamics that jeopardise them. Nevertheless, it isn’t solely for that reason; by way of this evaluation of nationwide judicial techniques, it could even be fascinating that, along with independence, different points inside nationwide judicial techniques that might be improved – comparable to points of digital justice[25] or delays within the decision of instances – are assessed. These points may fall throughout the scope of efficient judicial safety beneath Article 19 TEU and would contribute to the implementation of enhancements within the high quality of judicial techniques within the Member States.
In conclusion, the ASJP case goes down in historical past as a result of it was a milestone within the defence of the rule of regulation within the EU by way of the precept of judicial independence as a prerequisite for efficient judicial safety; it lingers within the current as a result of the threats haven’t disappeared and its integrative interpretation clashes with anti-European rhetoric; and, above all, it lies is future as a result of it offers concepts on how the EU can reply within the coming interval, having set a really helpful precedent for the continuing means of European integration by way of the Union of regulation.
[1] Judgment CJEU Associação Sindical dos Juízes Portugueses v. Tribunal de Contas, 27 February 2028, case C-64/16, ECLI:EU:C:2017:395.
[2] For an in-depth evaluation, see Alessandra Silveira, Joana Abreu, Pedro Froufe, Sophie Perez, “União de direito para além do direito da União – as garantias de independência judicial no acórdão Associação Sindical dos Juízes Portugueses”, Julgar on-line – Revista da Associação Sindical dos Juízes Portugueses (2018), http://julgar.pt/uniao-de-direito-para-alem-do-direito-da-uniao-as-garantias-de-independencia-judicial-no-acordao-associacao-sindical-dos-juizes-portugueses/.
[3] Judgment Associação Sindical dos Juízes Portugueses, recitals44-45.
[4] Judgment Associação Sindical dos Juízes Portugueses, recitals43.
[5] Judgment CJEU Wilson, 19 September 2006, case C-506/04, ECLI:EU:C:2006:587.
[6] Michael Krajewski, “Associação Sindical dos Juízes Portugueses: the Court docket of Justice and Athena’s dilemma”, European Papers, vol. 3, no. 1 (2018): 395-407.
[7] Nuria Magaldi, “La construcción de un poder judicial europeo y las garantías de su independencia”, Revista Española de Derecho Constitucional, 125 (2022): 127-157.
[8] Judgment of the Court docket Simmenthal, 9 March 1978, case 106/77, ECLI:EU:C:1978:49.
[9] Araceli Mangas Martín, “Defensa del Estado de Derecho por la Unión Europea: la rebeldía de Polonia a la independencia judicial”, Anales de Actual Academica de Ciencias Morales y Políticas, 99 (2022): 527-552.
[10] Judgment of the Court docket Les Verts, 23 April 1986, case 294/83, ECLI:EU:C:1986:166.
[11] Joana Covelo de Abreu, “Nationwide courts and efficient judicial safety: from cooperation to judicial integration within the European Union process” (PhD diss., College of Minho, 2015), https://hdl.deal with.internet/1822/38880.
[12] Michal Ovádek, “Has the CJEU simply reconfigured the EU constitutional order?”, VerfBlog, 28 February 2018, https://verfassungsblog.de/has-the-cjeu-just-reconfigured-the-eu-constitutional-order/, DOI: 10.17176/20180228-134754.
[13] Inês Pereira de Sousa, “O acórdão Associação Sindical de Juízes Portugueses como antecâmara para a intervenção do TJUE na crise do Estado de direito na União Europeia”, Revista Ibérica Do Direito, 1(1) (2021): 84-94, https://revistaibericadodireito.pt/index.php/capa/article/view/28.
[14] Judgment Repubblika v. Il-Prim Ministru, 20 April 2021, case C-896/19, ECLI:EU:C:2021:311.
[15] Judgment Asociaţia “Forumul Judecătorilor din România” and YN v. Consiliul Superior al Magistraturii, 7 September 2023, case C-216/21, ECLI:EU:C:2023:628
[16] Armin von Bogdandy and Michael Ioannidis, “La deficiencia sistémica en el Estado de derecho. Qué es, qué se ha hecho y qué se puede hacer”, Revista DE Estudios Políticos, 165 (2014): 19-64.
[17] Carlos Closa, “Reinforcing EU monitoring of the rule of regulation: normative arguments, institutional proposals and the procedural limitations”, in Reinforcing rule of regulation oversight within the European Union, ed. Carlos Closa and Dimitry Kochenov (Cambridge: Cambridge College Press, 2016).
[18] Alessandra Silveira and Pedro Froufe, “Integração europeia em crise de identidade: Causas e perspetivas jurídico-constitucionais entre o populismo, a política e o poder”, Dilemas – Revista de Estudos de Conflito e Controle Social, 11(2) (2018): 315-333, https://www.redalyc.org/articulo.oa?id=563866236008.
[19] Patrícia Fragoso Martins, “Ainda a propósito da independência do poder judical na União Europeia: revisitando a responsabilidade do estado-juiz por violação do direito da União e suas aplicações na jurisprudência portuguesa”, E-Publica, vol. 9, subject 1 (2022), https://e-publica.pt/article/36847-ainda-a-proposito-da-independencia-do-poder-judical-na-uniao-europeia-revisitando-a-responsabilidade-do-estado-juiz-por-violacao-do-direito-da-uniao.
[20] Piotr Bogdanowicz and Matthias Schmidt, “The infringement process within the rule of regulation disaster: The way to make efficient use of Article 258 TFEU”, Widespread Market Legislation Evaluate, 55 (4) (2018): 1061‑1100.
[21] Patrícia Fragoso Martins, Direito constitucional europeu. Fundamentos, instituições, princípios e garantias (Universidade Católica, 2022).
[22] Matteo Bonelli and Monica Claes, “Judicial serendipity: how Portuguese judges got here to the rescue of the Polish judiciary: ECJ 27 February 2018, Case C-64/16, Associação Sindical dos Juízes Portugueses”, European Constitutional Legislation Evaluate, 14(3) (2018): 622-643. doi:10.1017/S1574019618000330.
[23] Ugo Villani, “Sul controllo dello Stato di diritto nell’Unione europea”, Freedom, Safety & Justice: European Authorized Research, Rivista quadrimestrale on-line sullo Spazio europeo di libertà, sicurezza e giustizia, no. 1 (2020).
[24] Ana Carmona Contreras, “El espacio europeo de los derechos fundamentales: de la Carta a las constituciones nacionales”, Revista Española de Derecho Constitucional, 107 (2016): 13-40.
[25] Joana Covelo de Abreu, “Independente? Imparcial? Os desafios à União de direito e a justiça eletrónica europeia como instrumento unique ao serviço da tutela jurisdicional efectiva”, in Liber Amicorum Benedita Mac Crorie quantity I, ed. A. Sofia Pinto Oliveira & Patrícia Jerónimo (UMinho Editora, 2022), 527–555, https://doi.org/10.21814/uminho.ed.97.26.
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