My article published in the latest edition of the Liverpool Law Journal made the claim that national judges should be able to submit preliminary questions to the CJEU under Art. 267 TFEU regarding measures that they believe undermine their independence, even when the answers to these questions are not strictly necessary to decide the dispute pending before them. To facilitate the re-evaluation of the Miasto Łowicz line of case law that this development would require, the article argues that recognition of a subjective right of judges to their independence should be identified by the Court. This could be located within the programmatic structural provision contained in the second subparagraph of Art. 19(1) TEU, and is argued to be the next stage in the stone-by-stone approach of the CJEU in its interpretation of Art 19(1) TEU that is informed by Art. 47 of the Charter.

A Subjective Right to Independence

There is no existing subjective right for judges in either EU law or under the European Convention on Human Rights (ECHR) to guarantee their independence. The CJEU instead recognises that judicial independence is a requirement that forms part of the essence of the right to effective judicial protection, and adjudicating panels of national judges in individual cases have an obligation to verify if they constitute an independent and impartial tribunal previously established by law when serious doubts are raised. Likewise, case law of the ECtHR does not guarantee the right of judges to their independence, although numerous Convention rights have been effectively utilised by judges as applicants to give the impression of an all-encompassing right for judges to have their independence protected.

The potential for its future recognition in both EU law and under the ECHR exists all the same, following the reasoning of Judge Sicilianos in Baka v Hungary that Art. 6(1) ECHR could be interpreted in such a way as to recognise, in parallel to the rights of individuals involved in court proceedings to a fair trial, ‘a subjective right for judges to have their individual independence safeguarded and respected by the State’. The benefit of recognising a subjective right of judges to their independence is overwhelmingly about guaranteeing the rule of law. This is, firstly, because judges already possess rights as individuals that political organs of the state must respect and can be held liable for violating. Secondly, the ultimate object of a subjective right to independence remains the individuals who are parties in court proceedings; those who already possess the right to a fair trial under Art. 6(1) ECHR and Art. 47(2) of the EU Charter of Fundamental Rights (CFR), which is particularly at risk in states accused of rule of law backsliding. A subjective right of judges to independence is a subjective right exercised by individuals so that they can remain positioned to guarantee all other positive fundamental rights for individuals and therefore society as a whole, since it recognises the fundamental institutional role played by individual judges as guardians of the rule of law in liberal democratic societies. This is significant within the EU legal order in particular, because any right recognised by EU law must be capable of effective judicial protection, and so judges in Member States where systemic or structural deficiencies relating to the rule of law can be identified should be able to rely on the assistance of the CJEU through the preliminary reference procedure organised in Art. 267 TFEU. This would put them in a stronger position vis-à-vis the legislature and executive to benefit from the supremacy of EU law and, with the support of the CJEU, disapply national measures that seriously undermine their independence as and when rule of law problems manifest. In the EU legal system premised on mutual trust, judges in individual Member States are guardians of the rule of law in all Member States.

Re-evaluating Miasto Łowicz

In Miasto Łowicz, the Court declared inadmissible preliminary questions from national judges that dealt with measures affecting their independence, on the grounds that they were not necessary for the referring court to give judgment. This approach was softened slightly in IS, which also saw AG Pikamäe advise that such a question would be admissible if it could not be disassociated from another question which was admissible.In RS, AG Collins argued that a preliminary question would be ‘necessary’ if it related ‘to the risk of disciplinary liability of national judges who apply whatever answer the Court may give’. The Court ultimately did not consider this points in its judgment,  but it did describe Art. 267 TFEU as a ‘means of eliminating difficulties which may be occasioned by the requirement of giving EU law its full effect within the framework of the judicial systems of the Member States’. Utilising the procedure to give the CJEU the opportunity to shield national judges from systemic threats to their independence falls squarely within this aim.

There are some obvious counter-arguments that can reasonably be made. Firstly, that by permitting standalone questions on an adjudicating judge’s independence the nature of the preliminary reference procedure is altered fundamentally. Secondly, there is the accusation of judicial activism, through the use of hermeneutics to extend the application of Art. 19 TEU beyond its intended function as a structural Article to being one which guarantees the positive rights of a particular group of individuals. Notwithstanding that it does so already in practice, at least through its guarantee of the essence of effective judicial protection.

Two additional points can be made regarding these doubts. Firstly, the functional effects of this development would be limited to permitting the CJEU to intervene to utilise existing tools in defence of the existing right to a fair trial before an independent national court, and could even be limited further by a de minimus threshold of permitting dissociated questions regarding a national judge’s right to be independent only where they can provide in the preliminary reference request prima facie evidence of systemic or generalised deficiencies in the rule of law that gave rise to their concern in the first place. This evidence could later be used by the Commission in infringement actions against the Member State in question. Secondly, the second subparagraph of Art. 19(1) TEU envisages an EU judiciary that is organised exclusively pursuant to national law, and while the Court has stated clearly that the national administration of justice must have regard to EU law, EU-level mechanisms for that guarantee rely on political institutions – the Commission and the Council – for  their activation.

The interpretation of Art. 19(1) TEU as it relates to judicial independence is already grounded in an interpretation intended to ensure the effectiveness of that provision, so it does not necessarily need to be labelled as the sort of significant development with far-reaching consequences that the Court has engaged in before. Furthermore, allegations of institutional overreach by the Court would be exaggerated, given that the second subparagraph of Art. 19(1) TEU operates at a more general level and precisely in the absence of EU legislation regulating some aspect of the national administration of justice or specific legislation such as the Rule of Law Conditionality Mechanism. Additionally, the Rubicon has already been crossed from the rather negatively-applied concept of national procedural autonomy to the constitutional rights-based approach of effective judicial protection as the legal basis for protecting the rule of law.

Politicisation of institutions such as constitutional courts and national judicial councils as well as disciplinary mechanisms as a means to control judges have been early-stage tools that have been employed to reduce judicial independence in rule of law backsliding Member States. While it would not be an instant cure for violations of the rule of law in individual Member States, empowering cooperation between the directly affected judges and the CJEU should be added to the toolbox for preventing violations from becoming systemic in the future. Furthermore, the mere existence of such a mechanism could serve a preventative function by discouraging the adoption of measures aimed at dismantling or restricting judicial control of executive authority.

Motivation for Change: Significance of Judges to EU Integration

The importance of EU fundamental rights standards and the role of national judges in enforcing them, particularly in the Area of Freedom, Security and Justice (AFSJ), represents a new stage in integration through law in the EU. This in turn has the knock-on effect of increasing the relative status of judges as a category of individuals in the EU legal order, with particular responsibility for ensuring domestic compliance with EU norms, which increasingly invokes the ire of national political parties that seek to increase their own power base once in positions of authority.

All national judges are also European judges and can be called on to interpret and apply EU law, in a system that is based on mutual trust. That mutual trust demands that every national legal order in the EU guarantees judicial independence, and a threat in one Member State inevitably undermines the guarantee of fundamental rights in all Member States. Because the principle of mutual trust is legitimised by both the Member States’ commitment to the values in Art. 2 TEU that are a condition of membership of the EU, as well as the mandate of national courts to safeguard the rule of law in each Member State, its protection and maintenance is existentially vital to the EU legal order.

The reality is that the principle of mutual trust, together with fundamental rights-based exceptions provided by EU Law, ultimately require national courts for their application. It is the national courts that will undertake the balancing exercise between execution of an EU law judicial measure and the guarantee of fundamental rights. The choice of integration by means of mutual recognition, particularly but not exclusively in the AFSJ, amplifies the importance of national judges to ensure the correct balance is struck between automaticity and fundamental rights protection in the EU judicial space. It should very much be the role of the CJEU in this configuration to police the guarantees of judicial independence stemming from Art. 19(1) TEU, rather than leave it to the political institutions of the EU under Art. 7 TEU or other mechanisms.

Conclusion

What my article aims primarily to do is to overtly publicise the relationship of dependency between the EU principles of mutual trust and the rule of law, by contributing to the discussion on mechanisms for guaranteeing the latter, which is a prerequisite for a legal system based on the former. Mechanisms established at the EU-level to protect the rule of law in recent years are coercive to different degrees, but the ultimate obligation to guarantee the application and effectiveness of fundamental rights and the rule of law belongs to Member States. There is a limit to what supranational institutions can do if a democratically-elected governing authority takes steps to dismantle the checks and balances that represent good governance. At the same time though, it should be recognised that the development of legislative mechanisms and case law of the CJEU dealing with the rule of law are not altruistically concerned with either protecting national electorates from making choices that go against their own interests or shielding them from the consequences. Of all the values that identify the EU in Art. 2 TEU, the rule of law is the one that is necessary to ensure all the others, in Member States suffering from decline in the rule of law and in all other Member States. Mutual trust both facilitates and is evidence of the ‘ever closer union’, by requiring the cross-border near-automatic recognition of national administrative and judicial acts, on the assumption that all national legal orders offer equivalent protection of fundamental rights and comply with EU law. Helping national judges to ensure effective judicial protection as mandated by the rule of law, by improving dialogue with and access to the CJEU, should be a priority. Recognising a subjective right to independence is just one of several means to achieve this goal.

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Ruairi O’Neill teaches English and EU law at the British Law Centre and Faculty of Law and Administration of the University of Warsaw.

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