Initially, Article 19 (1), second paragraph, TEU was used as an aid to interpretation. However, it has since become a self-standing ground for the review of national measures affecting the principle of effective judicial protection. With a scope much broader than that of Article 47 CFR and the general principle of effective judicial protection, this provision has been the subject of several important cases pertaining to the independence and impartiality of the national judiciary. While the scope of this provision remains a topic of debate, it is clear that Article 19 (1), second paragraph, TEU is an institutional provision of fundamental importance dealing with the structure and mission of judicial power in the EU.
1. The background
The principle of effective judicial protection was recognised by the CJEU as a general principle of Union law (Case 222/84 Johnston) and later codified in Article 47 CFR. It was also inserted, by the Lisbon Treaty, in Article 19 (1) TEU, which states, in the second paragraph, that ‘Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law’. The main reason behind this insertion was to guarantee effective judicial protection of natural and legal persons. The limited access of individuals to Union Courts under Article 263 TFEU, in particular when the validity of acts of general application, such as regulations and directives, is at stake, is ‘compensated’ by, inter alia, the preliminary ruling procedure. The person concerned may plead the invalidity of the Union act at issue before the national courts and the latter may request a preliminary ruling from the Court of Justice. However, this presupposes that national legal remedies and procedures ensure respect for the right to effective judicial protection (Case C-50/00P Unión de Pequeños Agricultores). At the same time, this provision underlines, somewhat implicitly, the role of national courts ‘as ordinary law courts of the Union’.
2. Article 19 (1) TEU brought to life
Initially, Article 19 (1), second paragraph, TEU was usually referred to as an aid to interpretation. However, the judgment in the Portuguese Judges case (Case C-64/16 Associação Sindical dos Juízes Portugueses) was a game changer. In that case, Article 19 (1), second paragraph, TEU was interpreted as a self-standing ground for the assessment of whether general salary-reduction measures were compatible with the requirement of judicial independence. Ever since, preliminary questions have been referred to the Court or infringements proceedings have been brought in which Article 19 (1), second paragraph, TEU plays this self-standing role. See, for instance, Case C-619/18 Commission v Poland (Independence of the Supreme Court), Case C‑824/18, A.B. et al. (Appointment of judges to the Supreme Court – Actions) and Case C‑896/19 Repubblika on independence; on the requirement that a court must be established by law see, for instance, Case C-487/19 W.Ż.
In the Portuguese Judges case, the CJEU firmly linked the very existence of effective judicial protection to the rule of law and declared effective judicial protection to be the essence of the latter principle. On this basis, it went on to point out that Article 19 TEU gives concrete expression to the value of the rule of law stated in Article 2 TEU and that, according to the first article, both the Court of Justice and the national courts have the responsibility for ensuring judicial protection in the EU legal order. This was an explicit recognition in case law of the significant role national courts play in the EU judicial system.
3. Article 47 CFR and Article 19 (1) TEU compared
With regards to the content of the notions of independence and impartiality, and the requirement that courts be previously established by law, there are no differences between Article 47 CFR and Article 19 (1) TEU. Similarly, both provisions have direct effect (see A.B. et al. (Appointment of judges to the Supreme Court – Actions)). However, their material scope differs.
In the judgment in Portuguese Judges, the CJEU held that Article 19 (1), second paragraph, TEU relates to ‘the fields covered by Union law’, irrespective of whether the Member States are implementing Union law, within the meaning of Article 51 (1) CFR. This means that the Member States must ensure that the bodies, which qualify as ‘courts or tribunals’ within the meaning of EU law and which may act in the fields covered by that law, meet the requirements of effective judicial protection.
In particular, this material scope, which is broader than the scope of application of Article 47 CFR or the general principle of effective judicial protection, is important and has in the meantime given rise to litigation. In various cases, certain governments or other parties argued that the organisation of justice and in particular the nomination of judges is a matter of exclusive competence of the Member States and that the Court lacks jurisdiction. In the same vein, it was argued that as in the case of Article 47 CFR, for the applicability of Article 19 (1), second paragraph TEU, the provisions of national law at issue in the main proceedings must implement EU law or fall within the scope thereof. However, it was held that the mere fact of being a court with competence to potentially decide on the interpretation or application of EU law is enough to come within the material scope of Article 19 (1), second paragraph, TEU.
In contrast to this, Article 47 CFR applies only where Member States implement EU law (i.e. act within the scope of EU law, see Case C-617/10 Åkerberg Fransson) and it presupposes at least an alleged violation of rights and freedoms guaranteed by EU law, which is another limiting factor.
4. How to limit the application of Article 19 (1) TEU?
Will the almost limitless Article 19 (1), second paragraph, TEU oust Article 47 CFR and as such neutralise the requirements of Article 51 (1) CFR, with precarious consequences for the division of competences within the Union? Various suggestions have been made to limit the assumed boundlessness of Article 19 (1), second paragraph, TEU and, by so doing, delimit both provisions.
One of them was to confine Article 19 (1), second paragraph, TEU to structural breaches, which compromise the essence of judicial independence. A structural breach occurs when it affects an entire tier of the judiciary (Opinion of AG Tanchev in Joined Cases C‑558/18 and C‑563/18 Miasto Łowicz, para 125, with references to other cases). Another suggestion made was to limit the protection under Article 19 (1), second paragraph, TEU to only the essence of the right to effective judicial protection, that is the core of the right, which cannot be limited (L Badet, ‘A propos de l’article 19 du Traité sur l’Union européenne, pierre angulaire de l’action de l’Union européenne pour la sauvegarde de l’État de droit’ (2020) CDE 57, at 83-89).
Until now, the idea of limiting the application of Article 19 (1), second paragraph, TEU to structural breaches, in combination with the essence of the right to effective judicial protection, has neither been endorsed nor dismissed by the Court.
That said, it should be pointed out that the Court considers the systemic and generalised character of the alleged deficiencies. However, this serves another purpose beyond delimiting Article 47 CFR and Article 19 (1), second paragraph, TEU. The systemic nature of the deficiencies plays a role in the assessment of the contested provisions or practices. Similarly, Advocate General Bobek has embraced the systemic nature of the deficiencies. However, he did so not as a limitation of the substantive scope of Article 19 (1), second paragraph, but rather as a substantive threshold for its breach. Therefore, in his view, not all potential problems relating to the organisation of the judiciary in the Member States are caught by that article. The threshold should be high, covering breaches which are ‘likely to threaten the proper functioning of the national judicial system, thereby jeopardising the capacity of the Member State in question to provide sufficient remedies to the individuals’ (Opinion of AG Bobek in Joined Cases C-748/19 to C-754/19 Prokuratura Rejonowa w Mińsku Mazowieckim, paras 144-148).
Arguably, this understanding of Article 19 (1), second paragraph, TEU points in the same direction as the yardstick applied by the Court. The core of the test is: are there reasons for legitimate doubts, in the minds of individuals, as to the imperviousness of the members of the judiciary to external factors and as to their neutrality vis-à-vis the interests before them, which would undermine the trust in justice in a democratic society governed by the rule of law? (For instance, Repubblika, para 72).
5. Article 19 as an institutional principle
The majority of the cases decided by the Court concern the impact of the guarantees laid down in Article 47 CFR or the principle of judicial protection upon procedures and remedies available before national courts. This influence may affect the rules on standing, obligatory pre-litigation procedures, evidential rules, the rights of defence, the form of redress, the level of damages, for example. Does the very broad scope of application of Article 19 also cover all these aspects? In other terms, does it mean that at all times national civil codes, general provisions of administrative law and any other relevant national provisions have to meet the requirements inherent to effective judicial protection for the very reason that they may be used in the fields covered by EU law? I would not think so.
The application of the requirements of effective judicial protection usually means that for the purposes of EU law, the national rules, where they do not meet the Union law standard, are adapted or in some cases set aside. This however does not imply that comparable changes are also implemented for the purposes of purely national procedures i.e., procedures where the subject matter of the dispute is not linked to EU law. National courts or national legislators may decide to follow the EU standards, also for purely national law purposes, but they are by no means obliged to do so. Union law intervenes in national procedures and remedies only in cases that concern EU law and where it is deemed necessary to lay down certain standards of judicial protection.
The situation is, however, different when the independence and impartiality of the national judiciary are at stake. Article 19 TEU is an institutional provision, dealing with the structure and mission of the judicial power in the EU. It features in Title III, Provisions on the Institutions, TEU. It is from this institutional perspective that the national ‘courts or tribunals’ must meet the requirements of effective judicial protection and therefore also the guarantee of judicial independence. Given the role of national courts in the system of Union judicial protection, they must be independent at all times. It is not conceivable that a court is independent in matters concerning EU law, but that the same court is not independent in a purely national context, and vice versa – it cannot wear two hats. It is this unitary nature of independence of the judiciary that explains the broad application of Article 19 (1), second paragraph, TEU: the very fact that a court may be called upon to interpret and apply EU law is sufficient to trigger the application of that provision. Herein also lies the added value of Article 19 (1), second paragraph, TEU.
Posted by Sacha Prechal. Sacha Prechal is a Judge at the Court of Justice of the EU and professor of European law at Utrecht University. All views expressed in this contribution are strictly personal
Sacha Prechal has been a Judge at the European Court of Justice since 2010. In that capacity, she is currently President of the Second Chamber. She is also a Professor of European Law at Utrecht University. She is a member of the editorial or advisory board of several national and international legal journals and a member of the Royal Netherlands Academy of Arts and Sciences. She is the author of numerous publications on EU law, in particular on judicial protection in the EU, various aspects of the relationship between EU law and national law, general principles/fundamental rights, EU anti-discrimination law and problems related to EU directives.
Suggested citation: S Prechal, “Article 19 TEU and national courts: A new role for the principle of effective judicial protection?” REALaw.blog available at https://wp.me/pcQ0x2-wL