Author: commissie_meijers

NEWS FROM THE COURTS

CJEU judgments

CJEU judgment of 8 May 2024, C-53/23 (Asociaţia “Forumul Judecătorilor din România”), ECLI:EU:C:2024:388

Question raised was whether associations of judges and prosecutors, established to promote an independent, impartial and effective judiciary, can rely on arts 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? Court: above mentioned arts 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.

CJEU (GC) judgment of 7 May 2024, C-115/22 (NADA et al), ECLI:EU:C:2024:384

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).

CJEU judgment of 11 April 2024, joined cases C-114/23, C-115/23, C-132/23 and C-160/23 (Sapira e.a.), ECLI:EU:C:2024:290

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.

CJEU judgment of 18 April 2024, case C-634/22 (O.T. e.a.), ECLI:EU:C:2024:340

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

General Court (GC) order of 4 June 2024, joined cases T-530/22 to T-533/22 (Medel v Council), ECLI:EU:T:2024:363

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

A-G Collins opinion of 13 June 2024 in CJEU (GC) joined cases C-146/23 and C-374/23 (Sąd Rejonowy w Białymstoku), ECLI:EU:C:2024:507

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.

A-G Medina opinion of 20 June 2024 in CJEU case C-197/23 (S.), ECLI:EU:C:2024:533

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.

A-G Collins opinion of 11 April 2024 in CJEU joined cases C-647/21 (D.K) and C-648/21 (M.C., M.F.), ECLI:EU:C:2024:308

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

C-273/24 (Naski)

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.

C-96/24, C-103/24 and C-112/24 (Rzecznik Dyscyplinarny Sądu Najwyższego e.a.)

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.

C-158/24 (Rojcki)

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

ECtHR referral to Grand Chamber in Danilet v. Romania case,ECLI:CE:ECHR:2024:0220JUD001691521

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.
 
 

NEWS FROM THE COURTS

CJEU judgments

CJEU (GC) judgment of 9 January 2024, joined cases C-181/21 en C-269/21
Preliminary references by Polish courts (inadmissible in both cases)
The case concerns a consumer credit contract dispute focusing on fairness of terms. However, the referring court’s questions pertain to the judicial panel tasked with handling the case, including a judge appointed in violation of procedures requiring judicial self-governing bodies’ involvement. They inquire if panels with such judges qualify as independent “judicial bodies” under Union law (Articles 2 and 19(1) TEU and Article 47 of the EU Charter). Moreover, the referring courts inquire whether, due to lack of Polish legal remedies against irregular judicial appointments, they should, to ensure effectiveness of Union law, apply national rules on automatic disqualification of judges appointed unlawfully from handling cases. The Court declared both requests inadmissible for being hypothetical (C-181/21) and irrelevant to the pending case (C-269/21).

AG opinions

AG Collins opinion of 1 February 2024 in CJEU case C-53/23 (Asociaţia „Forumul Judecătorilor din România), ECLI:EU:C:2024:104
The applicants are NGOs established to ensure an independent, impartial, and effective judicial system and to undertake projects for its improvement, modernization, and reform. They filed a request for judicial review seeking partial annulment of a decision by the Prosecutor General at the PICCJ appointing several public prosecutors to investigate and prosecute all offenses allegedly committed by judges and prosecutors. The applicants argue that Law No. 49/2022, forming the legal basis for the contested decision, violates EU law. They question whether associations of judges and prosecutors, established to promote an independent, impartial, and effective judicial system, can invoke Articles 2 and 19(1) TFEU, read in light of Articles 12 and 47 of the Charter, to demonstrate locus standi to bring a case before a national court to promote these objectives. The Advocate General suggests to the Court that EU law does not preclude a national regulation requiring associations of judges and prosecutors to demonstrate a legitimate private interest, as defined in national law, when challenging actions incompatible with judicial independence and the rule of law.

New preliminary references

Case C-748/23 (Gekus)
referenced by Polish court concerning rule of law in Poland and execution of judgment from Polish judge in Ireland
The case involves a dispute between an Irish company and citizen over their obligations arising from actions in Poland. The defendant contests a judgment to be enforced in Ireland, alleging a violation of their right to access to court due to involvement of a judge delegated by the Polish Minister of Justice. They question the impartiality of Judge ‘JG’ at the highest Polish court. The referring judge seeks clarity on the standards of judicial impartiality and independence, particularly regarding JG’s appointment process. Prejudicial questions inquire if appointment circumstances can impact judicial impartiality and if judges implicated in such appointments can participate in assessing judicial independence.

C-96/24, C-103/24 and C-112/24 (Rzecznik Dyscyplinarny Sądu Najwyższego and Others)
reference from Poland on appointment of judge, independence and impartiality
The cases C-96/24, C-103/24, and C-112/24 concern Polish regulations allowing interested parties to request an assessment of the independence and impartiality of judicial panels. These requests were made in the context of criminal proceedings. The central question is whether judges appointed through flawed procedures can participate in the assessment. The preliminary questions focus on the interpretation of articles 19(1) and 47 of the Treaty on European Union and the Charter of Fundamental Rights of the European Union regarding the independence and impartiality of judicial bodies, particularly the Sąd Najwyższy (Supreme Court of Poland). They include issues such as the composition of judicial panels, the consequences of flawed appointment procedures, and the role of judges involved in such procedures.

C-158/24 (Rojcki)
reference from Romania on Article 47 Charter and judge and whether a decision of the president of the court has legal effects when the judicial formation is not an independent and impartial court within the meaning of European Union law
The case C-158/24 Rojcki concerns a preliminary ruling regarding the independence and impartiality of judicial panels and the appointment of judges. The referring court seeks clarification on whether a decision by the president of a court, forming a judicial panel, has legal consequences if the panel is not considered an independent and impartial court established by law. This question is crucial for determining whether a judicial body with such composition can effectively assess compliance with the standards ensuring the independence and impartiality of courts established by law, particularly in light of Article 47 of the EU Charter of Fundamental Rights. The case involves judges appointed in a manner inconsistent with national law and whether their presence affects the validity of decisions made by the panel.

C-119/23 (Valančius)
a reference Lithuania on concerns about the selection and appointment process of judges to the General Court of the European Union
Case C-119/23 (Valančius) involves a request for a preliminary ruling from the Vilniaus apygardos administracinis teismas (Administrative Court of Vilnius Region) in Lithuania. The applicant, Virgilijus Valančius, challenges the selection and appointment process of judges to the General Court of the European Union by the Lithuanian government. The case raises questions about the interpretation and application of EU legal standards regarding the independence and impartiality of judges in the EU judiciary. Specifically, it questions whether the selection criteria and procedures comply with EU law, particularly in ensuring the independence and impartiality of judges appointed to the EU judiciary. This case is significant for clarifying the standards and procedures governing the selection and appointment of judges to the General Court of the European Union, addressing concerns about ensuring the independence and impartiality of judges within the EU judiciary, fundamental principles for upholding the rule of law and protecting individuals’ rights within the European Union.

ECtHR judgments

ECtHR judgment of 20 February 2024, Danileţ v. Romania
Judicial Freedom of Expression on Social Media
The European Court of Human Rights ruled, by a majority, that Romania violated Article 10 of the European Convention on Human Rights in the case of Danileţ v. Romania. The case concerned a judge who received a disciplinary sanction for posting messages on his Facebook account. The Court found that the domestic courts failed to consider important factors, such as the broader context of the statements and the potential chilling effect of the sanction, thus not granting due weight to the judge’s freedom of expression. Additionally, the Court declared the complaint regarding Article 8 of the Convention inadmissible as the grounds for the sanction were unrelated to the judge’s private life.

ECtHR judgment 15 February 2024, Škoberne v. Slovenië, 19920/20
Privacy and Right to a Fair trial
The case involves a suspect allegedly bribed to influence a court case, with intercepted communications and location data used as evidence. The suspect’s conviction violates Article 6 (right to a fair trial) and Article 8 (right to privacy) of the European Convention on Human Rights. Regarding Article 8, the storage of telecom data lacked clear rules, breaching privacy rights. Regarding Article 6, the suspect’s conviction heavily relied on testimonies from witnesses who were not questioned during the trial, violating the right to a fair trial.

ECtHR judgment of 14 December 2023, Syndicat national des journalists e.a. v. France – L’impartialité objective de la Chambre sociale (Libertés cheries)
Impartiality Breach in Journalists’ Case
In a decision on December 14, 2023, the European Court of Human Rights (ECHR) found France in violation of Article 6 § 1 of the European Convention on Human Rights, due to the involvement of three members of the Cour de Cassation in a case where they had financial ties to the defending company. The case stemmed from a social conflict beginning in 2007 involving a restructuring by a Dutch publishing group, leading to a debt situation and refusal to pay employee bonuses. Despite initial rulings against the company, their appeal was accepted by the social chamber of the Cour de Cassation. However, it later emerged that three of the judges had ties to the company, raising doubts about their impartiality. Though the Council of the Judiciary acknowledged this, no serious sanctions were imposed. The matter was brought before the ECHR, which emphasized the importance of objective impartiality in legal proceedings. The ECHR ruled in favor of the complainant, highlighting the inadequacy of the judges’ justifications for not recusing themselves. The decision prompted improvements in recusal procedures but also raised concerns about transparency and potential conflicts of interest within the judiciary.

NEWS FROM THE COURTS

Cases ECtHR

Ikotity and Others v. Hungary – Application no. 50012/17 5/10/2023
Right to freedom of expression
Opposition members of parliament were sanctioned for using posters without permission during an interpellation speech by a colleague. The Court determined that the reasons behind the decisions were relevant to the legitimate aim pursued and were sufficient to demonstrate that the interference was deemed “necessary” in a democratic society. Therefore, the Court concluded that there was no violation of the right to freedom of expression (Art. 10 ECHR).

Takó and Visztné Zámbó v. Hungary – Application nos. 82939/17 and 27166/19 12/10/2023
Enforced separation during prison visits
Complaints were raised under Article 8 ECHR (Right to respect for private and family life) concerning the enforced separation from a relative during prison visits as a result of a 2017 Directive issued by the Hungarian Prison Service. Despite there being a recommendation against the separation, it persisted and complaints were dismissed by prosecutorial offices. Upon review, the Court found the complaints admissible while acknowledging the lawful interference with family life and at the same time stressing the necessity for proportionality in security concerns. The Court ruled that the application of the measure failed to balance prison security and the right to family life, therefore resulting in a violation of Article 8 ECHR.

S.S and Others v. Hungary – Application nos. 56417/19 and 44245/20 12/10/2023
Unlawful Removal of Asylum Seekers to Serbia
The applicants, including a mother and her five children, arrived at Budapest Airport using counterfeit diplomatic travel documents and were refused entry into Hungary. After requesting for asylum they were removed to Serbia before the examination of their claims. The Court found that Hungary violated its procedural duty under Article 3 ECHR due to failing to assess whether the applicants would have access to a fair asylum procedure in Serbia.

A.D. v. Malta – Application no. 12427/22 17/10/23
Unlawful and arbitrary detention of migrants and lack of timely and effective legal remedies
The applicant, a vulnerable individual due to his alleged minority and health situation, was held in various detention centres for different purposes over several months. The Court found a portion of his detention period to be arbitrary and in violation of Art. 5(1) ECHR, basing its findings on the fact that the Maltese courts did not issue any judicial order allowing for the detention as they are empowered to do under the national law. Furthermore, a violation of Art. 13 ECHR was established, highlighting deficiencies in Malta’s asylum system to address the applicant’s grievances, and basing such claim on, inter alia, its previous caselaw against Malta. 

Wałęsa v. Poland – Application no. 50849/21 23/11/2023
Systemic violations of the Polish judicial reform
The Court found a breach of the rights of the Polish former president Lech Wałęsa, namely the right to an independent and impartial tribunal established by law, the principle of legality and the right to respect for private and family life, because of the Polish reform of the judiciary. Most importantly, the Court seized the opportunity to apply the pilot-judgment procedure in this case, calling on Poland to implement measures to address “systematic violations” caused by the latest judicial reforms.

M.L. v. Poland – Application no. 40119/21 14/12/23
Composition of Constitutional Court, restrictive abortion laws
The ECtHR ruled that the Poland’s ban on abortion in cases of foetal abnormality, following a 2020 Constitutional Court judgment, violated the applicant’s right to respect for private life under Article 8 ECHR. The ECtHR emphasized the importance of the rule of law, stating that any interference with Article 8 rights must come from a “lawful” body. However, it found that the Constitutional Court’s composition involved judges appointed through a procedure previously deemed in breach of the Convention, undermining the legitimacy of the ruling.

Frankowski and Others v. Poland – Application nos. 32589/22, 35548/22 and 42267/22 14/12/23
Breach of fair trial rights in lengthy criminal proceedings
In the joined cases the Court found the complaints raised by applicants admissible regarding Poland’s excessive length of criminal proceedings as well as there not being any effective remedies in domestic law. The ECtHR ruled that Poland violated both Articles 6(1) and 13 ECHR guaranteeing the right to a fair trial as well as the right to an effective remedy.

Cases CJEU

C-81/21 Staatsanwaltschaft Aachen 9/11/23
Systemic or generalised rule of law deficiencies as an obstacle to mutual recognition
The CJEU addressed the concerns of a German Regional Court regarding the enforcement of a custodial sentence imposed by a Polish District Court, given that the Polish judicial system itself is no longer in conformity with the principle of the rule of law enshrined in Article 2 TEU. The Court ruled that a Member State may refuse to recognise and enforce a judgment imposing a criminal sentence delivered by a court of another Member State where it has evidence of systemic or generalised deficiencies in that Member State regarding the right to a fair trial, in particular so far as concerns the independence of the courts (in abstracto test), and where there are substantial grounds for believing that those deficiencies may have had a tangible influence on the criminal proceedings brought against the person concerned (in concreto test).

AG Opinions

Joined Cases C‑554/21, C‑622/21 and C‑727/21 Financijska agencija v HANN-INVEST d.o.o. (C‑554/21) and Financijska agencija v MINERAL-SEKULINE d.o.o. (C‑622/21) and UDRUGA KHL MEDVEŠČAK ZAGREB (C‑727/21)
According to AG Pikamäe’s opinion, national rules and practices which provide, as part of a single mechanism designed to ensure the consistency of a court’s case-law, for the intervention, in the judicial decision-making process at second instance, of the registrations judge and the section of judges, are compatible with Article 19(1) TEU. That is because the organisation of justice, including the course of the deliberation stage of proceedings, falls within the competence of Member States, which enjoy a certain degree of discretion in implementing the principles of the rule of law, as regards inter alia reconciling the requirements of legal certainty, as applied to courts of second instance, and the independence of those courts.

C‑634/22 OT, PG, CR, VT, MD intervener: Sofiyska gradska prokuratura
In its opinion, AG Bordona stated that the second subparagraph of Article 19(1) TEU must be interpreted as meaning that it does not preclude a national judicial reform according to which a specialised criminal court is abolished and its jurisdiction transferred to a different, ordinary, court, and which provides at the same time that the criminal cases being dealt with in the abolished court and in which a hearing has been held will continue to be heard by the formation that had jurisdiction until that time. Nor does it preclude, in the context of that reform of the judicial system, the reassignment of the judges of the abolished court to other courts with the same rank, on the basis of objective criteria free of any suspicion of arbitrariness.

NEWS FROM THE COURTS

CASES CJEU

Court of Justice judgments

C‑204/21 – European Commission v Poland ECLI:EU:C:2023:442 5/06/2023 (Commission)

In 2021, the Commission brought an action against Poland regarding the “Muzzle Law” and the Disciplinary Chamber. With this judgment, the Court of Justice decides in line with the Commission’s action, by first confirming that the value of the rule of law is given concrete expression in legally binding obligations, which Member States may not disregard by relying on national legislation or case law. Considering these premises, the ruling is based on the following findings: (i) the Disciplinary Chamber does not satisfy the requirement of independence and impartiality; (ii) the disciplinary regime applicable to judges is incompatible with the guarantees enshrined in the right to effective judicial protection; (iii) the national provisions requiring judges to submit a declaration indicating any membership of an association, non-profit foundation, or political party, and the placement of such information online, violates the rights to protection of personal data and the right to a private life of those judges.

For a complete timeline of this case, consult our Rule of Law Dashboard.

C‑823/21 – Commission v Hungary (Déclaration d’intention préalable à une demande d’asile) ECLI:EU:C:2023:504 22/06/23 (Commission)

With this judgment, the Court of Justice decides in line with the claims brought by the Commission against Hungary regarding the fulfilment of the obligations stemming from the EU Directive on common procedures for granting and withdrawing international protection, as interpreted in the light of Article 18 Charter. The Court recognises that by making the possibility, for certain third-country nationals or stateless persons present in its territory or at its borders, of making an application for international protection subject to the prior submission of a declaration of intent at a Hungarian embassy situated in a third country and to the grant of a travel document enabling them to enter Hungarian territory, Hungary has failed to fulfil its obligations under the Directive.

C-615/20, C-671/20 – YP and Others () and suspension d’un juge) ECLI:EU:C:2023:562 13/07/2023 (Poland)

In 2021, the Disciplinary Chamber of the Polish Supreme Court adopted a resolution authorizing the initiation of criminal proceedings against a judge of the Warsaw Regional Court, suspending him from his duties and reducing his remuneration for the duration of the suspension. This resolution was based on national provisions that the Court of Justice has found contrary to EU law in European Commission v Poland (C‑204/21). It stems from the primacy of EU law that any provisions or national case law contrary to EU law must be disapplied and this disapplication from a national judge cannot trigger his or her disciplinary liability.

C-107/23 – PPU Lin ECLI:EU:C:2023:606 24/07/2023 (Romania)

With this judgment, the Court of Justice further specifies the YP and Others () and suspension d’un judge ruling by stating that the primacy of EU law precludes ordinary national courts from being bound by the national constitutional or supreme courts’ case law which is contrary to EU law. No disciplinary consequences apply to judges who, under such circumstances, disregard the case law of these higher national courts.

General Court judgements

Case T-600/21 – WS and others v Frontex ECLI:EU:T:2023:492 06/09/23

The General Court dismisses the action of several Syrian refugees who had brought a claim for compensation against Frontex. The refugees claimed that Frontex had infringed, in the context of their return operation from Greece to Turkey, its obligations relating to the protection of fundamental rights, steaming from the Charter, Frontex’s Regulation, the Code of Conduct, and Frontex’s Standing Operating Procedure. The Court finds the EU agency not accountable since its task is solely to provide technical and operational support to the Member States, who, on the other hand, have the exclusive competence to assess the merits of return decisions and to examine applications for international protection. 

If you want to know more about the topic, here you can find our “Comment on Frontex and pushbacks: obligations and accountability (2021)”. For a more recent take, check out our “Comment on Frontex’s Status Agreements with Senegal and Mauritania (2023)” (Section D).

Requests for preliminary ruling

C-332/23 – Inspektorat kam Visshia sadeben savet 25/05/2023 (Bulgaria)

This preliminary reference concerns the independence of a Bulgarian judicial supervisory authority, as an institution with the power to call for the imposition of disciplinary penalties on judges. The referring court asks, inter alia, whether granting to such an institution an indefinite extension of powers after the constitutionally stipulated term of office has expired is capable, under Art. 19(1) TEU, of jeopardizing the independence of this authority. If the risk exists, the court further questions what criteria are to be used to assess whether extending the term of office is permissible, and, if so, for how long.

C-369/23 – Vivacom Bulgaria 9/06/2023 (Bulgaria)

This preliminary reference asks whether national rules on jurisdiction over actions for damage, arising from a sufficiently serious breach of EU VAT law allegedly committed by the Bulgarian Supreme Administrative Court, are compatible with Art. 19(1) TEU. The question was raised on the claim that these norms allocate the jurisdiction as court of last instance over these actions to the Bulgarian Supreme Administrative Court, albeit before a completely different chamber than the one these actions are brought against.

C-374/23 – Adoreike 13/06/2023 (Lithuania)

Is a determination of remuneration of judges, which is directly dependent on the political will of the national legislative and executive powers, compatible with the values of democracy and the rule of law, as set out by the Treaties? That is, in essence, one of the questions submitted with this preliminary reference by a Lithuanian court, whose reasoning highlights that the principle of the independence of the judiciary includes the independence of the judiciary’s funding from such powers.

C-390/23 – Rzecznik Finansowy 27/06/2023 (Poland)

After having submitted a previous preliminary reference on the possibility of setting aside final judgments using an extraordinary action to ensure the effectiveness of EU law, the Polish Supreme Court seeks further clarification on the matter. It is questioned if, considering the requirements set in Arts. 19(1) TEU and 47(2) Charter, the mechanism for reviewing final judgments in a Member State may be shaped in such a way that the court of last instance hearing such cases includes persons who (i) are not professional judges (or even lawyers), (ii) whose method of appointment differs from that of judges, and (iii) who do not benefit from all the guarantees of independence provided for in respect of judges.

CASES ECtHR

Tuleya v. Poland – Applications nos. 21181/19 and 51751/20 6/07/23

A well-known Polish judge, who had expressed his views against the judicial reform in Poland, was subject to a preliminary inquiry on suspicion of disciplinary misconduct, which resulted in the lifting of his immunity from prosecution, and suspension from his official duties by the Disciplinary Chamber of the Polish Supreme Court. According to the ECtHR, not only the Disciplinary Chamber failed to meet the requirement of an “independent and impartial tribunal established by law” (Art. 6 ECHR), but there had also been no lawful basis for the measures against the applicant, which interfered with his right to a private life (Art. 8 ECHR) and could be characterized as a strategy aimed at intimidating or even silencing him for his views (Art. 10 ECHR).

Lorenzo Bragrado and Others v. Spain – Applications nos. 53193/21, 53193/21, 53707/21, 53848/21, 54582/21, 54703/21, and 54731/21 22/06/2023

The ECtHR held that there had been a violation of the right to access to court (Art. 6(1) ECHR), in a case concerning the appointment process for membership of the governing body of the judiciary in Spain (“the GCJ”). The applicants, namely judges who were candidates to be new members of the GCJ, appealed with the Constitutional Court complaining about Parliament’s failure to follow through with the process for renewing the composition of the GCJ, but the appeal was rejected as out of time. The ECtHR found that the applicants could not have foreseen how the relevant law on time limits had been interpreted and applied in their case.

NEWS FROM THE COURTS

CASES CJEU

• Judgments

C-817/21 – Inspecţia Judiciară ECLI:EU:C:2023:55 11/05/2023 (Romania)

In this judgment, the Court of Justice confirmed that, while the organization of justice is a matter for the Member States, the exercise of that power must comply with EU law. As such, the disciplinary regime applicable to the judges who may be called upon to apply EU law must provide the necessary guarantees in order to prevent any risk of its being used as an instrument of political control over their activities. Article 2 TEU and the second subparagraph of Article 19(1) TEU, read in conjunction with Commission Decision 2006/928/EC of 13 December 2006 must be interpreted as precluding national legislation which confers on the director of a body competent to conduct investigations and bring disciplinary proceedings against judges and prosecutors the power to adopt acts of a normative and individual nature.

C-40/21 – Agenția Națională de Integritate (ANI) 04/05/2023 ECLI:EU:C:2023:367 (Romania)

The Court ruled that Article 49(3) of the Charter of Fundamental Rights of the European Union must be interpreted as meaning that it does not apply to national legislation which provides, following an administrative procedure, for a measure prohibiting the holding of any elective public office for a predetermined period of three years against a person who has been found to have a conflict of interest in the holding of such an office, in the event that that measure is not criminal in nature. Furthermore, the principle of proportionality must be understood to mean that it does not preclude national legislation that establishes a measure prohibiting the holding of any elective public office for a predetermined period of three years against a person who has been discovered to have a conflict in holding such an office provided that, in light of all relevant circumstances, the application of that legislation results in the imposition of a penalty.

• Requests for preliminary ruling:

C-53/23 – Association Forumul Judecătorilor din România 31/01/2022 (Romania)

Action for annulment of a decision that has been issued by the Prosecutor General of the Public Prosecution Service at the Supreme Court of Romania, which appointed within this body the public prosecutors who were charged with the criminal prosecution in corruption cases involving judges and prosecutors.

The question is, inter alia, whether Article 2 and Article 19(1), second subparagraph, TEU, read in conjunction with Article 12 and Article 47 EU Charter, preclude the submission of certain legal claims by professional associations of magistrates are subject to limits the introduction of the condition that there is a legitimate private interest, which is excessively limited, requiring in cases similar to the present one a direct connection between the administrative act subject to judicial review of legality subject and the direct purpose and objectives set out in the articles of association of the professional associations of magistrates are established.

C-146/23 – Sąd Rejonowy w Białymstoku 10/03/2023 (Poland)

A judge has filed a claim for payment of an amount as compensation for work that he performed in the period from 1 July 2022 to 31 January 2023. The question is, among other things, whether the principle of the independence of the judges stands in the way of a national law that gives rise to a derogation from the mechanism for the fixing the remuneration of the judges.

C-114/23, C-115/23 and C-132/23 – Sapira and Others 18/02/2023 and 06/03/2023 (Poland)

The verdict has been rendered by a judicial formation of the Court of First Instance, which consists of one judge, namely LM. LM was appointed judge by decree of the Polish President, on the recommendation of the National Council for the Judiciary. The question is, inter alia, whether EU law and the general EU law principles of legal certainty, inviolability of res judicata, proportionality, and procedural autonomy preclude national regulations that prevent a court from investigating in proceedings for the enforcement of a final criminal conviction whether the judgment to be enforced was rendered by a court that meets the requirements of a legal institution, independence, and impartiality.

C-119/23 – Valancius 09/02/2023 (Lithuania)

The applicant is a Lithuanian judge at the General Court of the European Union. Due to the expiry of his term of office, a national procedure for the selection of candidates for the position of Judge at the General Court was announced in March 2021. In the context of this procedure, the applicant has been identified as the most suitable candidate by a working group of independent experts. However, on 4 May 2022, another candidate was nominated by the government of Lithuania. By his claim, the applicant seeks, inter alia, an injunction ordering the defendant to reopen, in accordance with the procedure laid down by law, the procedures for the negotiation and nomination of candidates for the post of judge at the General Court of the European Union and the candidate ranked highest by the independent review group for negotiation and nomination. The court asks what requirements EU law (particularly Article 254 TFEU and Article 19(2) TEU) imposes on the national procedure for the selection of candidates for the position of judge at the General Court.

• Orders

Order – 21-04/2023 – Commission v Poland () and vie privée des juges) C-204/21 ECLI:EU:C:2023:334 (Poland)

In light of the circumstances of the case and the ability of the Republic of Poland to pay it, the amount of the periodic penalty payment which the Republic of Poland was ordered to pay to the European Commission by the order of the Vice-President of the Court of 27 October 2021, Commission v Poland (C‑204/21 R, EU:C:2021:878), is reduced to EUR 500 000 per day, from the date on which the present order is signed.

• AG Opinions

Opinion AG Emiliou 16/02/2023 in case C-216/21 – Asociaţia “Forumul Judecătorilor din România” ECLI:EU:C:2023:116 (Romania)

According to the AG, a procedure for the promotion of judges based on an assessment of their work and conduct by a board composed of the president and judges of the relevant superior court is compatible with EU law. However, even if the members of that board are independent, the criteria applied must be sufficiently objective, relevant, and verifiable and the body must justify its decisions. He concluded that article 47 of the Charter on Fundamental Rights of the European Union and the second subparagraph of Article 19(1) TEU, read in conjunction with Article 2 TEU, must be interpreted as meaning that the principle of judicial independence is applicable to procedures for the promotion of judges. Moreover, article 47 of the Charter of Fundamental Rights and the second subparagraph of Article 19(1) TEU, read in conjunction with Article 2 TEU and Commission Decision 2006/928/EC of 13 December 2006, must be interpreted as not precluding the introduction of judicial reforms in Romania in circumstances where such reforms comply with the requirements arising from EU law.

Opinion AG Rantos 02/03/2023 in case C-718/21 – Krajowa Rada Sadownictwa ECLI:EU:C:2023:150 (Poland)

The AG doubts whether the mechanism by which the National Court Register (KRS) authorizes Polish judges to continue to exercise judicial office after retirement age offers sufficient guarantees of independence. In his view, the second subparagraph of Article 19(1) TEU must be interpreted as prohibiting national legislation that requires approval from a body that has been shown to lack independence from the legislative or executive branches and that bases its decisions on criteria that are vague and difficult to verify. Regardless of the circumstances surrounding the failure to observe the time limit and the significance of that failure for the proceedings concerning authorisation for his or her continued appointment, the second subparagraph of Article 19(1) TEU must be interpreted as not precluding, in principle, the adoption of an interpretation of national legislation under which a judge’s belated declaration of his or her intention to continue holding a judicial office beyond the retirement age is ineffective.

Opinion AG Collins 26/01/2023 in case C-817/21 – Inspecţia Judiciară ECLI:EU:C:2023:55 (Romania)

According to the AG, EU law precludes national legislation making the Deputy Chief Inspector responsible for supervising the investigation of complaints against the Chief Inspector. He believes that Article 2 TEU, the second subparagraph of Article 19(1) TEU and Commission Decision 2006/928/EC of 13 December 2006 establishing a mechanism for cooperation and verification of progress in Romania to address specific benchmarks in the areas of judicial reform and the fight against corruption must be interpreted as precluding national legislation or regulations that provide for the oversight of disciplinary investigations and proceedings against the Chief Inspector of the Inspecţia Judiciară (Judicial Inspectorate, Romania) by its Deputy Chief Inspector and the investigation of such complaints by Judicial Inspectors of that body in circumstances where that Deputy Chief Inspector is appointed at the Chief Inspector’s sole discretion; the term of office of the Deputy Chief Inspector depends upon and coincides with that of the Chief Inspector, and all Judicial Inspectors are subordinate to the Chief Inspector upon whom the progress of their careers depends.

CASES ECTHR

• Judgments

Cotora v. Romania Application no. 30745/18 07/01/2023 ECLI:CE:ECHR:2023:0117JUD003074518

The term “court” within the meaning of Article 6(1) of the ECHR covers not only courts but also bodies with the competence and task to resolve matters and disputes based on law. The Court notes that the National Council of Judges and Prosecutors is established by law, namely the Constitution and specific law. The Board has the power to conduct investigations, to refer disciplinary matters to the Board’s Disciplinary Committee, which has the power to make decisions in disciplinary matters. There are rules regulating disciplinary proceedings and judges and prosecutors against whom disciplinary proceedings have been instituted can seek legal assistance. They are heard and have access to evidence. It is therefore a court established by law within the meaning of Article 6(1) ECHR and the court also has full jurisdiction. The Court concludes that there is no violation of Article 6(1) ECHR.