24 september 2024
NEWS FROM THE COURTS
CJEU judgments
Question raised was whether associations of judges and prosecutors, established to promote an independent, impartial and effective judiciary, can rely on Articles 2 and 19(1)TEU, read in the light of arts 12 and 47 Charter, to show that they have locus standi to bring actions before a national court in furtherance of those objectives. The Court found that above mentioned Articles do not preclude national legislation which makes the admissibility of an action for annulment of the appointment of prosecutors responsible for criminal prosecutions against magistrates conditional on the existence of a legitimate private interest, thereby precluding in practice the possibility of a professional association of magistrates bringing such an action appeal in defense of the principle of judicial independence.
Preliminary questions have been referred about whether anti-doping sanctions may be published. The Court does not reach substance because the independent Vienna Arbitration Commission (“Unabhängige Schiedskommission Wien, USK) that referred the question cannot be considered a judicial body” within the meaning of Section 267 VWUE. Indeed, the applicable Austrian legislation does not guarantee that the members of the USK are protected against direct or indirect external pressure, which may cast doubt on their independence (i.e. external independence).
Preliminary questions in a case where the referring Polish court must rule on the enforcement of four final judgments by Polish courts that cannot be considered independent and impartial. Questions relate to whether referring Polish court can under EU law (arts 19 TEU and 47 Charter) verify ex officio whether the requirements of independence and impartiality have been met and render the final judicial decisions without legal effect. The preliminary request is however decided inadmissible by the CJEU ex art 267 TFEU, as the questions don’t respond to a need inherent in the resolution of the main proceedings but are intended to obtain from the Court a general assessment.
The Bulgarian legislature has decided to abolish the special criminal court to ensure proper administration of justice. The preliminary question concerns whether the change in law is in accordance with the EU. The Court considers that the dissolution took place without calling into question the individual independence of the members of that judicial body. The independence or impartiality of the referring court has also not been called into question, nor does the referring court in any way doubt its subjective impartiality. The Court declares the application inadmissible because it has not been established that an interpretation of the provisions of EU law laying down the requirements for the independence and impartiality of the courts and tribunals responsible for interpreting and applying EU law is necessary for the resolution of the main proceedings.
CJEU order
Several associations of judges sought to annul the Council implementing decision, containing the so-called milestones, attached to the recovery and resilience plan for Poland. The associations claimed the adoption of these milestones violated EU law. The General Court however decided that the action for annulment ex art 263 TFEU was inadmissible due to lack of direct concern.
AG opinions
Preliminary question asked whether the criteria to guide the process of determining the remuneration of judges, and evaluating a possible reduction thereof, be derived from the second subparagraph of art 19(1) TEU. The AG considers that while the latter provision does not prevent legislators from adopting laws that determine/reduce remuneration, it requires the establishment of a legal framework within which the remuneration of judges can be properly determined and that protects the independence of the judiciary.
Preliminary question relates to whether the irregular (re)assignment of a specific case to a Judge-Rapporteur in national proceedings falls within the scope of the second subparagraph of Article 19(1) TEU, and whether such an irregularity amounts to a violation of the requirements of effective judicial protection before an independent, impartial and pre-established tribunal. The AG considers that Article 19(1), second subparagraph, TEU, interpreted in the light of Article 2 TEU and taking due account of Article 47 of the EU Charter, precludes a national provision which contains an absolute prohibition of a legal remedy in the event of a breach of national rules regarding the (re)assignment of cases to judges.
Preliminary reference about the safeguarding of judges against undue influence or pressure from within the judicial system (internal judicial independence). The AG considers that art 19(1) TEU and the principles of independence of the judiciary and supremacy of EU law preclude national law that allows the transfer or dismissal of judges without consent and possibility of appeal.
New preliminary references
This case involves the Supreme Court of Poland questioning whether judges appointed under disputed circumstances, particularly those in the Chamber of Extraordinary Control and Public Affairs, should be excluded from hearing a specific case (I NO 47/18). The core issue pertains to ensuring that judicial panels adhere to EU law requirements of independence and impartiality, especially considering the legality of their appointments under Polish national law. The Supreme Court seeks guidance on whether EU law precludes these judges from participating in decisions or holding executive positions within the court if their appointments were flawed.
The referring court questions about whether judges who have been appointed to their positions following a defective appointment procedure are not excluded from participating in a formation for review. The question also arises whether this judicial formation is ‘a court established in advance by law’. The referring court also asks how a judge of a Member State should behave when he has been appointed to a judicial formation that is poorly composed and has exhausted all national options for arranging a correct composition.
The referring court questions whether a decision of the President of the Court has legal effects where the judicial formation is not an independent and impartial court within the meaning of EU law. The answer to that question is important for assessing whether a judicial body with such a composition can actually assess whether it meets the standard aimed at guaranteeing independent and impartial courts that have been established in advance by law, also in the light of Article 47 Charter.
ECtHR judgments
Ruling concerns a Romanian judge who was imposed disciplinary sanctions and salary reduction for posting social media messages about the influence of politics on the judiciary. The Court ruled that there is a violation of Article 10 of the ECHR (freedom of expression), because the restriction on the right was not necessary in a democratic society. The Court reached to this conclusion, among other things, in view of the limited necessity analysis by the national court, the insufficiently substantiated claim that there would be an infringement of the dignity of the judge’s office, and the availability of lighter sanctions. The case is now referred to the Grand Chamber.
ECtHR judgments
ECtHR referral to Grand Chamber in Danilet v. Romania case, ECLI:CE:ECHR:2024:0220JUD001691521
https://hudoc.echr.coe.int/eng?i=001-231084
Ruling concerns a Romanian judge who was imposed disciplinary sanctions and salary reduction for posting social media messages about the influence of politics on the judiciary. The Court ruled that there is a violation of Article 10 of the ECHR (freedom of expression), because the restriction on the right was not necessary in a democratic society. The Court reached to this conclusion, among other things, in view of the limited necessity analysis by the national court, the insufficiently substantiated claim that there would be an infringement of the dignity of the judge’s office, and the availability of lighter sanctions. The case is now referred to the Grand Chamber.
