Category: Rule of Law Update

NEWS FROM THE COURTS  

CJEU judgments  

CJEU Judgment of 11 July 2024, Joined Cases C-554/21, C-622/21 and C-727/21 (Hann-Invest), ECLI:EU:C:2024:594 

Preliminary reference by Croatian court concerning judicial fairness and external influence on judicial decisions 

The preliminary ruling requests concern the interpretation of Article 19(1) TEU and Article 47 of the Charter of Fundamental Rights of the European Union, arising from three separate cases involving the Croatian Financial Agency and the initiation of court-supervised administration proceedings. The Court emphasizes that it can only interpret EU law within the limits of its jurisdiction, particularly in relation to requests for preliminary rulings under Article 267 TFEU. The absence of any indication from the referring court that the disputes involve EU law means the Court cannot interpret Article 47 of the Charter. However, it confirms its jurisdiction under the second subparagraph of Article 19(1) TEU, which mandates effective judicial protection, applicable to national courts dealing with EU law matters. 

The judgment highlights the necessity of judicial independence and impartiality, stressing that national laws must not allow external influences on judicial decisions. It addresses problematic practices, such as requiring a judicial decision to be approved by a registrations judge or allowing a section meeting to impose binding legal positions on a panel. Such practices undermine the right to fair hearing and effective judicial protection by preventing parties from exercising their rights and introducing potential bias. The Court concludes that these mechanisms are incompatible with EU law, reinforcing that only the judicial panel responsible for a case should decide on its outcome, thereby upholding the essential principles of the rule of law and judicial fairness. 

CJEU judgment of 29 July 2024, Case C‑119/23 (Virgilijus Valančius v Lietuvos Republikos Vyriausybė), ECLI:EU:C:2024:653

Preliminary reference by Lithuanian court concerning nomination criteria for judges  

The case concerns the nomination process for a judge at the General Court of the EU, where Valančius challenged the Lithuanian Government’s decision to nominate a candidate who ranked second in the selection process, rather than himself, the highest-ranked candidate. This situation raises critical issues regarding compliance with EU law, particularly in terms of judicial independence and the criteria for nominations. The Lithuanian selection procedure involves a working group that evaluates candidates against specific criteria and submits a ranking to the government, prompting questions about whether nominations can be based solely on professional competence and if a government can bypass the highest-ranked candidate without jeopardizing judicial independence under EU law. 

The Vilnius Administrative Court referred two significant questions regarding the nomination criteria for judges at the General Court. The Court confirmed its jurisdiction over the interpretation of EU law in relation to national judicial nomination processes, asserting that Member States must adhere to EU obligations during these procedures. Ultimately, the Court ruled that a Member State’s government may nominate a candidate who is not the highest-ranked from a list produced by independent experts, provided that the nominee meets the necessary standards of independence and competence. This ruling highlights the importance of maintaining judicial independence while allowing flexibility in national nomination practices, ensuring that the fundamental requirements for judicial appointments are upheld. 

The case involves two individuals who lost family members in the unsolved aftermath of the 1999 Kosovo conflict. In 2008, the EU established Eulex Kosovo to investigate such crimes. Unsatisfied with Eulex’s handling of their cases, the individuals claimed their rights were violated and sought damages from the General Court, which dismissed their claim for lack of jurisdiction. Both the individuals and the Commission appealed that decision.  

CJEU judgment of 10 September 2024, Joined Cases C-29/22 P (KS and KD v Council & Others) and C-44/22 P (Commission v KS and Others, ECLI:EU:C:2024:725

Appeals concerning the jurisdiction of the Court and the CFSP 

The Grand Chamber ruled that EU legal principles, including respect for fundamental rights, apply to the Common Foreign and Security Policy. The Court confirmed its jurisdiction over acts not directly tied to EU political choices, including inadequate investigations, lack of legal aid, and failures by Eulex Kosovo to address human rights violations.  

CJEU Judgment of 19 September 2024, Case C-725/20 P, (Maria Teresa Coppo Gavazzi and Others v European Parliament), ECLI:EU:C:2024:766

Appeal concerning dynamic pension systems and legal certainty 

A group of appellants, including Maria Teresa Coppo Gavazzi, is contesting a judgment from the General Court, which dismissed their attempts to annul notes from the European Parliament adjusting their pension amounts due to the implementation of Decision No 14/2018 from the Italian Chamber of Deputies. They argue that the General Court misinterpreted Articles 74 and 75 of the Implementing Measures and infringed upon their rights to legal certainty and property under the Charter of Fundamental Rights. The appellants claim that the dynamic pension system adversely affects their acquired rights and assert that the General Court failed to adequately consider their late notification regarding Decision No 14/2018. 

The Court finds the appellants’ arguments unpersuasive, affirming the General Court’s conclusions that the dynamic system is applicable to former Members of the European Parliament and does not violate their rights. It clarifies that while pensions are acquired rights, the amounts can be adjusted under the dynamic system without infringing upon these rights. The Court also ruled that the Head of Unit was authorized to make decisions regarding pensions and that the General Court’s interpretation aligns with EU law. Consequently, the appeal is dismissed in its entirety. 

CJEU judgment of 2 October 2024, Joined Cases T-797/22, T-798/22 and T-828/22, ECLI:EU:T:2024:670, ECLI:EU:T:2024:671 and ECLI:EU:T:2024:672  

Prohibition on legal advisory services under EU Sanctions against Russia  

In response to Russia’s aggression toward Ukraine in 2022, the Council of the European Union implemented a series of sanctions aimed at increasing pressure on Russia, including a ban on providing legal advisory services to the Russian government and Russian entities, except for matters related to judicial, administrative, or arbitral proceedings.  

The Belgian bar associations, including the Dutch Bar Association in Brussels, the Paris Bar Association, and the association Avocats Ensemble (ACE), challenged this ban, arguing that it was unwarranted and violated fundamental rights that guarantee access to legal counsel, attorney-client confidentiality, and the independence of lawyers. They asserted that it undermined the rule of law.  

The Court affirmed that everyone has the right to effective judicial protection, as ensured by the Charter of Fundamental Rights of the European Union, which includes the right to legal representation in actual or potential disputes. However, it determined that the challenged ban does not violate this right. The Court clarified that the general prohibition on offering legal advisory services to the Russian government and Russian entities does not apply to advice related to ongoing judicial, administrative, or arbitration proceedings, thus being limited to non-litigation legal counsel. Additionally, it held that advice to natural persons is exempted by the ban. It also highlighted the importance of lawyers’ independence in ensuring citizens’ right to effective legal remedies in connection with judicial matters. The prohibition does not hinder lawyers’ ability to provide services related to concentious legal proceedings, thereby maintaining their essential role in upholding justice. The Court concluded that the fundamental duty of lawyers to uphold and defend the rule of law may be subject to restrictions justified by the EU’s objectives of general interest, provided such restrictions do not disproportionately impact the core of their professional responsibilities. It affirmed that the prohibition aligns with these objectives and is justified within the framework of EU sanctions against Russia. 

Advocate General Opinions  

AG Ćapeta opinion of 11 July 2024 in CJEU Case C-369/23 (Vivacom Bulgaria), ECLI:EU:C:2024:612

Preliminary ruling by Bulgarian court concerning impartiality of courts and judicial protection.  

The case centers on Vivacom Bulgaria EAD’s damages claim against the National Revenue Agency and the Supreme Administrative Court (VAS) for alleged misapplication of EU law regarding VAT. Vivacom raised concerns about the VAS’s impartiality, as the court would be judging its own actions. The VAS referred a question to the Court of Justice of the EU to determine if EU law allows a court to adjudicate its own liability claims, thereby questioning its independence. 

The Advocate General highlighted the objective test of impartiality, which considers public perception of bias when a court acts as both judge and party. He noted that while factors like the identity of the judges and the defendant’s status can influence perceptions, as long as national rules minimize perceived bias, they may comply with EU principles of judicial protection. 

ECtHR judgments 

ECtHR judgment of 29 August 2024, Case of Tsulukidze and Rusulashvili v. Georgia (Application nos 44681/21 and 17256/22)

Principles of impartiality for national judges  

The case involves claims of bias against Judge L.M. of the Supreme Court, who participated in dismissing the applicants’ claims. The applicants argued that impartiality was compromised due to the judge’s assistant being the daughter of the lawyer representing the opposing party. They filed a complaint under Article 6(1) of the Convention, which guarantees the right to a fair and impartial hearing.  

In its judgment, the Court examined the principles of impartiality, recognizing both subjective and objective aspects. While it found no evidence of personal bias from Judge L.M., it highlighted the potential conflict of interest arising from his assistant’s familial ties to the opposing party’s lawyer. The Court noted the lack of clarity regarding the assistant’s role in the proceedings and criticized the Supreme Court for failing to adequately address the applicants’ concerns about impartiality. Ultimately, the Court concluded that the applicants’ fears were objectively justified, leading to a violation of Article 6(1) for both applicants due to insufficient procedural safeguards and the appearance of bias in the judicial process. 

ECtHR judgment of 4 September 2024, Case of Zouboulidis v Greece (No.3) (Application no. 57246/21)

Right to access a court and State liability for damages caused by judicial bodies  

The case centers on the dismissal of an action by the applicant, a former employee of the Greek embassy in Germany, against the Greek State concerning compensation related to a judgment by the Court of Cassation. The applicant sought an increase in his expatriation allowance for dependent children but faced rejection due to legal distinctions between employee types. Although he received some compensation for a later period, his earlier claims were dismissed. 

The applicant subsequently appealed to the European Court of Human Rights, claiming that the Court of Cassation’s rejection violated his right to access a court under Article 6(1) of the Convention. The Court found that the formalistic approach of the Court of Cassation was disproportionate, resulting in a violation of the applicant’s rights. 

The Court ruled that the applicant had a valid claim under domestic law, affirming that the State is liable for damages caused by its judicial bodies. It also rejected the Government’s arguments regarding the applicant’s victim status and claims of non-exhaustion of domestic remedies, determining that the Supreme Administrative Court’s ruling had effectively denied him access to justice. The Court underscored the importance of practical and effective access to courts, which cannot be merely theoretical. It concluded that the restriction imposed by the Supreme Administrative Court created an undue burden, thus impairing the essence of the applicant’s right to court access. 

ECtHR judgment of 22 October 2024, Case of Yüksek v. Türkiye (Second Section) (Application no. 4/18)

Pre-trial detention and freedom of expression: Arbitrary interference in political speech

The application concerns the pre-trial detention of the applicant, co‑chair of the Democratic Regions Party, who was charged with membership of an illegal organization on account of his speeches. The case raises issues under Article 5(1) and (3), and Article 10 of the Convention. Between 27 January 2015 and 18 April 2016 the applicant, in his capacity as the co-chair of an opposition political party, made a number of speeches and statements at party meetings, public demonstrations and press conferences. On 12 November 2015, the Diyarbakır public prosecutor launched a criminal investigation against the applicant, accusing him of membership in the PKK/KCK based on his political speeches. In May 2016, he was arrested and his detention extended despite his objections. During questioning, the applicant defended his speeches, asserting they were criticisms of government policy, advocating for civil and political resistance, not violence. He argued his remarks on “self-determination” and terms like “struggle” referred to non-violent political actions. 

The Court found that the applicant’s pre-trial detention violated Article 10, as it was based solely on his political speeches without concrete evidence linking him to an illegal organization, thus failing to protect his freedom of expression from arbitrary interference. Additionally, under Article 5(1) and (3), the detention lacked reasonable suspicion, making it unjustifiable and in breach of his right to liberty and security. 

ECtHR judgment of 22 october, Case of J.B. and Others v. Malta (Application no. 1766/23) 

Call for legislation regarding the prolonged detention of unaccompanied minors 

The case concerns various periods of detention of presumed minors and the effectiveness of remedies in relation to their detention and the conditions thereof. The case concerns a group of applicants who claim to have been minors, aged between 16 and 17, when they arrived in Malta in 2022 after being rescued at sea. They were detained at Ħal Far Initial Reception Centre (HIRC) under conditions they describe as severely inadequate, without being given documentation justifying their detention. The applicants report overcrowding, poor hygiene facilities, restricted communication access, insufficient winter clothing, and a lack of appropriate medical and psychological support. The court, in a unanimous ruling, declared the application admissible and found several violations of the Convention. Specifically, it determined that Article 3 had been violated in relation to three of the applicants. It also held that there was a breach of Article 13 in conjunction with Article 3 for all applicants. The court identified violations of Article 5(1) concerning the applicants’ right to liberty and security and a breach of Article 5(4) regarding the right to a prompt review of detention. Lastly, it lifted the interim measure previously imposed on the Government under Rule 39. Lastly, the Court held under Article 46 (binding force and execution of judgments) that national-level reforms are needed to implement legislation ensuring the Immigration Appeals Tribunal’s independence and impartiality, as well as to create an effective remedy for complaints concerning ongoing detention conditions. 

ECtHR judgment of 17 October, Case of Cesarano v. Italy (Application no. 71250/16)

Ineligibility to have life sentence reduced to 30 years’ imprisonment: no violation of art. 6(1) and 7 of the Convention 

The case concerned the refusal by the domestic courts to grant the applicant’s request to have his life imprisonment sentence reduced to thirty years. The applicant argued that this refusal stemmed from his decision to be tried under the summary procedure. Unlike in Scoppola v. Italy (no. 2) ([GC], no. 10249/03, 17 September 2009), the applicant had opted for the summary procedure at a time when the legislation he claimed to be more lenient (Law no. 479 of 1999) was no longer in effect. As a result, the application raised issues under Article 7 and Article 6(1) of the Convention. 

The primary question before the Court was whether, in light of the principles established in the Scoppola case, the timeframe for identifying the most lenient law (or lex mitior) should be considered in abstracto from the commission of the offense until the final conviction. Alternatively, the Court had to consider whether, in the case of simplified procedures, which required a request by the accused, the relevant timeframe should have commenced from the moment the accused made such a request. 

The Court ruled that there was no violation of Article 7, as the applicant’s sentence was appropriately determined based on the specific circumstances and applicable laws at the time of his procedural choices. Additionally, the Court found no violation of Article 6(1), concluding that the applicant’s waiver of procedural safeguards in opting for the summary procedure was clear and that the penalty imposed was foreseeable within the legal framework. 

ECtHR judgment of 15 October 2024, Case of H.T. v. Germany and Greece (Application no. 13337/19) 

Expulsion of an asylum-seeker from Germany to Greece under an administrative arrangement, refoulement, degrading treatment 

The case involved the removal of the applicant, a Syrian national who had expressed his intention to seek asylum, from Germany to Greece under an administrative agreement between the two countries. The applicant was expelled on the same day he arrived in Germany, without his asylum request being processed. He alleged that Germany had violated Article 3 of the Convention. Additionally, the case addressed the conditions and legality of the applicant’s subsequent detention in Greece, as well as the judicial control of that detention, under Articles 3, 5(1) and 4 of the Convention. 

The Court found that the immediate removal of the Syrian asylum-seeker from Germany to Greece was conducted without a proper assessment of the individual risk he might face or a guarantee of adequate asylum procedures in Greece. At the time, there was no sufficient basis to assume that Greece had measures in place to protect against refoulement or to prevent treatment contrary to Article 3, nor did the administrative arrangement provide such assurances. The German authorities did not perform an individualized risk assessment and removed the applicant hastily, denying him access to legal representation. 

Concerning Article 3, the Court ruled that the applicant’s detention in Greece for over two months in a police station lacking basic amenities constituted degrading treatment. Under Article 5(1), the Court acknowledged that the overall duration of the applicant’s detention in Greece, pending deportation, was justified. However, under Article 5(4), the Court found that there had been no examination of the legality of the detention, thereby violating the applicant’s right to have the lawfulness of his detention reviewed. 

ECtHR judgment of 10 October 2024, Case of Machalický v. the Czech Republic (Application no. 42760/16)  

Violation of the presumption of innocence 

The case involved an alleged violation of the presumption of innocence under Article 6(2) of the Convention. The applicant had filed for compensation from the State following the discontinuation of criminal proceedings against him, which were terminated due to being time-barred. He claimed that the way the civil courts handled his compensation claim infringed on his right to be presumed innocent. 

The Court found that the reasoning and language used by the civil courts in dismissing the applicant’s compensation claim effectively implied that he was criminally liable, despite the discontinuation of the criminal proceedings. This amounted to an explicit imputation of guilt, undermining the applicant’s presumption of innocence. As a result, the Court ruled that there had been a violation of Article 6(2), as the presumption of innocence had not been upheld in the compensation proceedings. 

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.

News from the courts

Cases CJEU

• Requests for preliminary ruling:

C-373/22 – NE 08/06/2022 (Bulgaria)

Charges were brought against NE in proceedings before the Spetsializiran nakazatelen sad (Specialised Criminal Court; ‘the referring court’). At the preliminary hearing in this case, NE sought the disqualification of the court, since he questions the impartiality of both the judge to whom the case has been assigned and all the judges of the referring court.

C-603/22 – M.S. e.a. 26/08/22 (Poland)

In the period from 9 February to 8 March 2022, the judge speaking alone in the present case was removed from her judicial office by order of the Minister of Justice. The referring court doubts whether an executing authority such as the Minister of Justice may, at the pre-trial phase and during the judicial proceedings, intervene in the process of direct application of EU law by linking powers of supervision of the courts with the powers arising from the exercise of the office of Attorney General.

C-711/22 – Advance Pharma 26/05/22 (Poland)

On 3 February 2022, the ECtHR found a violation of Article 6(1) ECHR. The ECtHR also stated that the judicial formation involved in the case is not a “court established by law”. Subsequently, in May 2022, the applicant requested the reopening of the national procedure. The applicant claims that refusal to reopen as a result of the ECtHR judgment may lead to the deprivation of the guarantee of effective judicial protection.

C-634/22 – O.T. e.a. 28/09/22 (Bulgaria)

While the criminal proceedings against O.T. were pending in 2019, the proposal for the Bulgarian law amending and supplementing the law on the judiciary, which provides for the abolition of the Bulgarian special criminal court (SNS), was the subject of public debate. The court is of the opinion that the dissolution of the SNS, in the way it has been carried out and with the reasons put forward, is contrary to the principle of the rule of law, undermines the independence of that court and the separation of powers, and that pressure is thus exerted by the legislature and the executive. The question is, inter alia, whether EU law should be interpreted as undermining the independence of a court that is abolished by the adopted amendment to the Bulgarian law on the organization of the judiciary, whereby the courts must, however, continue to deal with cases until that time, and must also subsequently continue the handling of cases in which preliminary hearings have already taken place.

C-658/22 – Sąd Najwyższy 02/09/22 (Poland)

Given that the majority of judges of the Civil Chamber – namely judges appointed before 2018 – had expressed doubts about the regularity of the appointments of judges in the Sąd Najwyższy (Supreme Court) by the Polish President since 2018, the Sąd Najwyższy considered it justified to to ask a preliminary question about the regularity of the composition of the judicial formation. The question is, inter alia, whether a court of a Member State adjudicating at last instance, which includes persons appointed as judges in breach of that Member State’s fundamental rules of law on the appointment of judges, is an independent, impartial tribunal that pre-established by law and which ensures effective legal protection for individuals in the fields covered by Union law.

• Orders:

Order – 07/11/2022 – FX and Others (Effet des arrêts d’une Cour constitutionnelle III)
Case C-859/19 (Joined Cases C-859/19, C-926/19, C-929/19)

Preliminary questions about i.a. the interpretation of art 2 TEU, art 19(1) TEU and Decision 2006/928. The Court decided national law/practice is not precluded which prescribes that the decisions of the national constitutional court are binding on ordinary courts, provided the independence of that constitutional court is guaranteed by national law. Yet, precluded is national law that can trigger disciplinary liability of national judges of ordinary courts when they fail to comply with the decisions of the national constitutional court.

• AG Opinions

Opinion AG Collins 15/12/22 in GC cases C-615/20 and C-671/20 – Y.P. e.a. and M.M. ECLI:EU:C:2022:986 (Poland)

The preliminary questions concern the compatibility with EU law of certain aspects of the recent reform of the Polish judicial system, more specifically, the permission granted by the Disciplinary Chamber to prosecute and suspend a judge, thereby depriving him or her of the right to adjudicate certain criminal cases assigned to that judge. AG Collins argues that Article 2 TEU and the second subparagraph of Article 19(1) TEU and the principles of primacy of Union law, sincere cooperation and legal certainty require all public authorities to reverse the unlawful effects of decisions of the Disciplinary Chamber authorizing the prosecution, detention and suspension of judges in criminal matters and thereby enable a suspended judge to sit on that court, except in cases assigned to another formation which has the capacity of an independent, impartial tribunal pre-established by law.

Opinion AG Collins 15/12/22 in GC cases C-181/21 and C-269/21 – G. en BC en DC ECLI:EU:C:2022:990 (Poland)

The referring court raises questions regarding the independence and procedure of appointment of a judge before an ordinary court. According to the AG, the condition that a court must be established by law applies to all courts in a national legal order, regardless of the level at which they exercise their jurisdiction. The AG concludes that there are structural doubts about the independence and impartiality of the judges appointed under the present procedure.

Opinion AG Collins 15/12/22 in GC case C-204/21 (Commission v. Poland) ECLI:EU:C:2022:991

Infringement proceedings by the Commission against Poland on the basis that provisions of the Polish amending law are contrary to Article 19(1) second subparagraph TEU, Article 47 EU Charter, Article 267 TFEU, the principle of primacy of Union law. In its action, the Commission puts forward five pleas in law. The AG also argues that the Polish law amending the rules on the organization of ordinary courts and of the Sąd Najwyższy (Supreme Court) is contrary to EU law. The breach of Union law consists, inter alia, of depriving national courts of the ability to ensure that Union law is applied in all cases by an independent and impartial tribunal.

Opinion AG Collins 26/01/23 in case C-817/21 ECLI:EU:C:2023:55 (Romania)

The referring court raises questions regarding whether a body, such as the Judicial Inspectorate, must offer the same guarantees of independence and impartiality as are required of courts under EU law. According to AG Collins, EU law precludes national legislation making the Deputy Chief Inspector responsible for overseeing the investigation of complaints against the Chief Inspector

Cases ECtHR

• Judgments:

Rutar en Rutar Marketing D.O.O. t. Slovenië (21164/20),15/12/22 ECLI:CE:ECHR:2022:1215JUD002116420

The Court notes that neither the Nova Gorica Court nor the Constitutional Court responded in any way to the applicants’ request for a preliminary ruling from the CJEU, nor to any other legal argument. The Court therefore concludes that there is a violation of Article 6 § 1 of the Convention.

Kalda v. Estonia (No. 2) (Application no. 14581/20) 06/12/22 ECLI:CE:ECHR:2022:1206JUD001458120

In the case concerning the blanket ban on prisoners’ voting in Estonia, the court decided there had been no violation of Article 3 of Protocol 1 (right to free elections) to the ECHR. As a result of the ban, the applicant, a prisoner serving a life sentence for various serious crimes, had been prevented from voting in the 2019 European Parliament Elections.

• Referral to Grand Chamber:

Grosam v. the Czech Republic (19750/13), 14/11/22 ECLI:CE:ECHR:2022:0623JUD001975013

The Czech applicant in the present case complains, inter alia, that no appeal was possible against the decision of the Disciplinary Chamber of the Supreme Administrative Court, despite the fact that it could not be considered the “supreme tribunal” given its composition and the lack of sufficient safeguards with regard to its expertise and independence. In its Chamber judgment of 23 June 2022 (https://hudoc.echr.coe.int/eng-press?i=003-7367334-10067243), the Court ruled that the Disciplinary Chamber did not meet the requirements of an “independent and impartial tribunal” and that the complainant was therefore denied a fair trial.

News from the Member States and the EU

• Bulgaria

A large protest was held in front of the Bulgarian National Assembly against legislative amendments to the Bulgarian Electoral Code, which returns voting with paper ballots despite that machine voting has eliminated electoral problems in Bulgaria in the recent years (EURACTIV).

In response to criticism by the European Commission, Bulgaria has revoked 12 golden passports (which grant citizenship to wealthy third-country investors). Five procedures are still pending (EURACTIV).

Bulgarian Chief Prosecutor Geshev has been alleged of conducting corrupt actions by facilitating the blackmailing of incumbent ministers with criminal charges – potentially jeopardizing “the stability and security of NATO allies in Europe” (EURACTIV).

• Czech Republic

Former Czech PM Andrej Babiš has been acquitted for alleged fraud to facilitate building a congress center with EU subsidies (EURACTIV).   

• Cyprus

Also spyware issues in Cyprus, were the authorities allegedly engaged in surveillance activities that benefitted powerful Russians (EURACTIV).

• Greece

A new list of wiretapped journalists and politicians was published, as part of a big spyware scandal that has put the incumbent Greek government in trouble (EURACTIV). Androulakis, MEP and head of Greek socialist party, whose phone was bugged, filed a complaint before the CJEU (EURACTIV). In response to the “Greek Watergate”, the troubled Greek Government has banned the sale on spyware (EURACTIV). But press freedom and the rule of law in general are at stake here, according to different interest groups (EURACTIV; EURACTIV).

The Greek Watergate, in combination with Qatargate (which led to the arrest of Greek MEP and EP Vice-President Eva Kaili), might have significant effects to upcoming Greek elections, which will be held in toxic circumstances (EURACTIV; EURACTIV; EURACTIV)

The Greek privacy authority (ADAE) has decided to check the records of telecommunications companies to find out who is under surveillance by Greek secret services (EURACTIV). However, the Greek chief prosecutor Ntogiako ruled that based on new law, ADAE cannot conduct such audits and criminal penalties could be applicable (EURACTIV).

It caused a wave of reactions. Strong responses followed from the European Parliament (EURACTIV), some suggesting Greece is heading towards autocracy (EURACTIV). The European Parliament’s PEGA committee stressed the importance of protecting the independence of the authority of the ADAE (EURACTIV).

Main opposition leader Alexis Tsipras announced he would reveal names of Greek politicians that have been wiretapped by the secret services (EURACTIV).

Meanwhile a criminal trial of NGO humanitarian workers on Lesbos has started. They face charges concerning espionage, assisting smuggling networks, membership of a criminal organisation and money laundering (EURACTIV). In a 2021 LIBE report, the trial was called “the largest case of criminalisation of solidarity in Europe” (LIBE Report).

The Greek government faced a no-confidence vote on January 27 (EUOBSERVER; EUOBSERVER).

• Hungary

According to some sources, Hungary agreed with the EU on unlocking the covid recovery funds (5.8 billion Euros) in exchange for judicial reforms, relating to the strengthened National Judicial Council that will ensure the appointment to key judicial positions (POLITICO; POLITICO; EURACTIV). Hungary needs the money, as it is facing high inflation and ongoing economic difficulties (EURACTIV). In the meantime, Hungarian teachers have been striking for better working conditions, to which the government responded by firing some who participated in civil disobedience (EURACTIV; EURACTIV).

The EC decided to unblock the funds, provided the fulfilment of 27 supermilestones by Hungary, aimed at strengthening the independence of the judiciary, auditing rules and control on the utilization of the EU funds (which notably include the 17 commitments on the basis of the conditionality mechanism). These supermilestones can be regarded as an incentive for the Hungarian government to reform (EURACTIV).

Apart from the recovery funds, Hungary is not likely to receive a substantial part (7.5 billion Euros) of the cohesion funds. The European Parliament adopted a resolution urging the Commission to stay with its earlier proposal to suspend the funds (EURACTIV). While the Hungarian government had taken 17 measures relating to public procurement, conflicts of interest and corruption, the European Commission recommended the freezing of the EU funds under the rule of law conditionality mechanism, since “important weaknesses and risks remain” to the EU’s budgetary interests (POLITICO; EURACTIV ; EUOBSERVER).

During the Council meetings, the Hungarian government had put pressure on the Member States to unfreeze the cohesion funds by vetoing the EU Ukraine aid (18 billion Euros) as well as a directive ensuring 15% minimum corporate tax, which caused anger with other Member States (POLITICO; POLITICO; EURACTIV; EUOBSERVER; EUOBSERVER) Orban’s reputation was already damaged in surrounding Member States after wearing a nationalist scarf (EURACTIV). Eventually, the Hungarian government agreed on Ukraine loan and minimum tax, in exchange for a freeze of 6.3 billion Euros (instead of 7.5 billion Euros) (POLITICO; EURACTIV; EURACTIV; EURACTIV; EURACTIV ; EUOBSERVER). The Hungarian government nonetheless explains the low EU corruption rating as a conspiracy (EUOBSERVER).

Hungary has blamed a conspiracy for coming bottom in an EU corruption rating as it seeks to unfreeze European funding.

• Poland

Whereas Poland has been cooperative concerning its stance to Ukraine (EURACTIV), the country had nonetheless been blocking the minimum tax directive to force the unfreezing of the EU recovery funds (35 billion euros) (EURACTIV). After Poland had received a concrete pathway to unblock the funds by addressing rule of law issues aimed at judicial independence (the “milestones”) (EURACTIV), the Member State agreed to drop its veto on the minimum tax (EURACTIV; POLITICO). Many Polish citizens are in favor of implementation of the reforms (EUARACTIV) and regard the further legislative development critical for outcome upcoming Polish elections (EURACTIV; POLITICO). The Polish Parliament discussed the milestones and started working on it on January 11 (EURACTIV; POLITICO; POLITICO).

Meanwhile, Igor Tuleya – who has been very critical of the current rule of law situation in Poland – can resume his office as judge again after being suspended for over two years for allegedly enabling public disclosure of information (EURACTIV).

• Romania

According to the European Commission, Romania’s progress on judicial reform and anti-corruption measures has been sufficient. Hence, it has stopped the monitoring under the Cooperation and Verification Mechanism (CVM) (EURACTIV)

• Slovakia

Several Slovak political parties have forwarded the idea to create a constitutional block on electoral system reforms, to prevent future situations in which a longtime rule, such as in Hungary, can be made possible (EURACTIV)  

• EU-wide

European Court of Auditors (ECA) has started an investigation into the European Commission’s effective defense of the EU’s financial interests in the ongoing rule of law issues in some Member States (EUOBSERVER).  

MEPs are worried about the expanding surveillance spyware in the EU, but new rules are unlikely according to experts, as the Member States are probably not in favor of increasing oversight (EURACTIV). The EP’s special PEGA committee has adopted recommendations to address the spyware scandal, including some country-specific recommendations (EURACTIV).

Over to another scandal: Qatargate.

One of the biggest corruption scandals in EU history was revealed on December 9 concerning criminal organizations infiltrating the EP and interference of EU politics by Qatar. The Belgian secret service for more than a year to uncover the scandal, working closely with other Member States (EURACTIV). Several raides were performed discovering suitcases full of cash money. Vice president to the EP Eva Kaili was charged with corruption, taken into custody (EURACTIV) and unanimously removed as vice president (EURACTIV). She exposed herself after voting and speaking in favor of Qatar several times (EURACTIV). Former MEP Antonio Panzeri, arguably the mastermind behind Qatargate, was also arrested but has decided to collaborate with Belgian prosecutor office to lower his sentence (EURACTIV; EURACTIV; EURACTIV).MEP Marc Angel, has replaced Kaili as vice president of the EP (EURACTIV).

In response, many urged for critical debates on improving rules of ethics (EURACTIV; POLITICO), as the Qatargate scandal exposed “an ecosystem of corruption in the European Parliament” (EURACTIV; EURACTIV; EUOBSERVER). The president of the EP, Roberta Metsola, forwarded a plan on financial declarations and contacts with lobbyists to restore trust (EURACTIV; EUOBSERVER). The Parliament’s Constitutional Affairs committee unanimously adopted amendments to the EP Rules of Procedure to grant EPPO discretion to lift legal immunity for MEPs suspected of grave offences (EURACTIV).

Further readings and media

• No reasons given by a first-instance court for its refusal to seek a preliminary ruling: judgment of the ECHR in the case of Rutar and Rutar Marketing D.O.O. v. Slovenia (Johan Callewaert) https://johan-callewaert.eu/no-reasons-given-by-a-first-instance-court-for-its-refusal-to-seek-a-preliminary-ruling-judgment-of-the-echr-in-the-case-of-rutar-and-rutar-marketing-d-o-o-v-slovenia/

• Bridging the gap between facts and norms: mutual trust, the European Arrest Warrant and the rule of law in an interdisciplinary context. European Law Journal https://onlinelibrary.wiley.com/doi/full/10.1111/eulj.12436

• Jakab, András: Three misconceptions about the EU rule of law crisis, VerfBlog, 2022/10/17, https://verfassungsblog.de/misconceptions-rol/, DOI: 10.17176/20221017-162426-0.

• Lübbe-Wolff, Gertrude: How to Prevent Blockage of Judicial Appointments, VerfBlog, 2022/10/07, https://verfassungsblog.de/how-to-prevent-blockage-of-judicial-appointments/, DOI: 10.17176/20221007-230820-0.

• Juszczyszyn v. Poland: Article 18 ECHR’s Conservative Contribution to the Polish Rule of Law Crisis. strasbourgobservers https://strasbourgobservers.com/2022/11/23/juszczyszyn-v-poland-article-18-echrs-conservative-contribution-to-the-polish-rule-of-law-crisis/

• Secretary General’s Article 52 ECHR Report on Poland (ECHRblog) https://www.echrblog.com/2022/11/secretary-generals-article-52-echr.html

• EU 2.0 Revisited: Between Vetocracy and Rule of Law Concerns (European law blog) https://europeanlawblog.eu/2022/11/15/eu-2-0-revisited-between-vetocracy-and-rule-of-law-concerns/

• Reforming judicial review with respect for democracy (Leiden law blog) https://www.leidenlawblog.nl/articles/reforming-judicial-review-with-respect-for-democracy

• Rechtsstaatstoets constitutioneel keerpunt EU (NJB) https://njb.nl/blogs/rechtsstaatstoets-constitutioneel-keerpunt-eu/

• Jaraczewski, Jakub: Unexpected Complications: The impact of the Russian invasion of Ukraine on the rule of law crisis in the EU: An anti-rule of law alliance, VerfBlog, 2022/12/23, https://verfassungsblog.de/unexpected-complications-the-impact-of-the-russian-invasion-of-ukraine-on-the-rule-of-law-crisis-in-the-eu/, DOI: 10.17176/20221224-001629-0.

• Nguyen, Thu: The Hungary Files: Untangling the political and economic knots, VerfBlog, 2022/12/08, https://verfassungsblog.de/the-hungary-files/, DOI: 10.17176/20221209-001524-0.

• Ruiz Robledo, Agustín: An Institutional Crisis that Dissolved Like a Sugar Cube, VerfBlog, 2023/1/05, https://verfassungsblog.de/an-institutional-crisis-that-dissolved-like-a-sugar-cube/, DOI: 10.17176/20230106-001557-0.

• EUOBSERVER, When the EU found the political will to act on rule of law (28/12/22): https://euobserver.com/rule-of-law/156556

News from the courts

• Decisions CJEU

C-480/21 (Order of Court, 12 july 2022): Reference for a preliminary ruling – Article 99 of the Rules of Procedure of the Court of Justice – Judicial cooperation in criminal matters – European arrest warrant – Framework Decision 2002/584/JHA – Article 1(3) – Surrender procedure between Member States – Conditions for execution – Charter of Fundamental Rights of the European Union – Second paragraph of Article 47 – Fundamental right to a fair trial before an independent and impartial tribunal previously established by law – Systemic or generalised deficiencies – Two-step examination – Criteria for application – Obligation of the executing judicial authority to determine, specifically and precisely, whether there are substantial grounds for believing that the person in respect of whom a European arrest warrant has been issued, if surrendered, runs a real risk of breach of his or her fundamental right to a fair trial before an independent and impartial tribunal previously established by law

• Decisions ECtHR

No relevant decisions rendered.

• Communicated cases CJEU

No relevant communications rendered.

• Communicated cases ECtHR

The ECtHR has communicated 37 cases against Poland relating to “judicial decisions rendered by various chambers of the Supreme Court in civil or criminal cases, following appeal with regard to application for vacant judicial post, or regarding a disciplinary case involving a lawyer, or decisions by the National Council of the Judiciary (NCJ). It is alleged that the judicial formations dealing with the applicants’ cases were not “independent and impartial tribunals established by law” since they included judges who had been appointed by the new NCJ. The NCJ is the constitutional body in Poland which safeguards the independence of courts and judges. It has been the subject of controversy since the entry into force of new legislation in 2017 providing, among other things, that its judicial members are no longer elected by judges but by the Sejm (the lower house of Parliament).” Note also the communication of a similar case (Botor v Poland). The latter case resembles the 2021 case of Xero Flor w Polsce sp. z o.o. v. Poland, were the Court eventually held unanimously that article 6(1) (right to a fair trial and right to a tribunal established by law) had been violated.

Another communicated case against Bulgaria (C-373/22 – N.E) also concerned the question whether the court at hand could be regarded an independent or impartial tribunal in the meaning of EU law. It concerned a court, seised in a criminal case and at the same time a defendant in a claim for damages brought by a suspect in this criminal case, which is based on an unlawful act by this court.

News from the Member States and the EU

• Czech Republic

On 12 September, the trial against former Czech prime minister Babiš opened concerning his alleged role in the misuse of EU funds worth two million euros (EUObserver).

• Greece

Following several comments by MEPs and the EC on the wiretapping scandal in Greece – involving the use of the illegal spy-software Predator to wiretap the phone of an opposition leader in Greece by the administration of PM Mitsotakis (EUObserver) – the Greek government claimed the EU lacked competence to dwell on security measures taking place within the Member State (Politico). In the recently created special inquiry committee on spyware (PEGA) by the EP, the Predator revelations in Greece were also discussed. Some argued it undermines the rule of law in Greece (EUObserver).   

• Hungary

Over the rule of law dispute, Hungary has been blocking the legislative proposal for a global minimum corporate tax rate. Alternatively, the EC is considering to inititate an enhanced cooperation deal on a global minimum corporate tax rate of 15 percent, which would not require unanimous voting (Politico).

After the historical step by the EP to publicly declare Hungary ‘no longer a democracy’ as European values are under systematic threat in the Member State (Politico; EUObserver), the EC has proposed a suspension of 65 percent of funds allocated to Hungary under three EU programs (EU cohesion policy). This cut comes down to 7.5 billion euros. (EUObserver)

However, the EC has also announced it will monitor during the fall the Hungarian progress on 17 promised reforms aimed to counter fraud and corruption in the country (EUObserver; Euractiv)). The Council will bear these findings in mind when finally deciding on the matter (Politico; Politico; Politico; Politico; EUObserver). MEPs have criticized the EC’s plan for providing Hungary an easy way out of the mechanism (EUObserver).

• Italy

The far-right Giorgia Meloni of Fratelli d’Italia was elected as prime minister of Italy (EUObserver), a result cheered by EU’s right wing but despised by others (Politico; Politico). It could have implications for the balance in Brussels (Politico), although others argue that it will not change the internal dynamics of the EU (EUObserver). It has caused internal struggle in the EPP, as Berlusconi – also member of the EPP – supports the Meloni coalition (Politico).

The PEGA inquiry committee of the EP will start looking into Italian firm Tykelab and parent company RCS Lab in the wake of the media revelations by Lighthouse Reports, Der Spiegel, Domani and Irpimedi about mass surveillance activities by these Italian entities (EUObserver).

• Poland

Poland has threatened to violate its EU legal obligations if the recovery funds are not soon provided to the Member State (Politico). After the EC regarded the few Polish legislative changes (intended to meet the “milestones”) insufficient, the Polish government and the EC have not reached a compromise. The EC furthermore shrugged off the threats made by Poland (EUObserver). Although generally applauded, some have argued the lack to reach consensus might damage public faith in the EU’s neutrality (Politico).  Others condemned the milestones-option in the first place for disregarding ongoing rule of law concerns. In this light, four European associations of judges have lodged proceedings before the CJEU against the Council for approving Poland’s corona recovery plan (Politico). However, there might be standing problems before the CJEU. An exception to the standing requirements may be needed in the exceptional circumstances of this case “where a Member State fails to establish a system of legal remedies and procedures which ensure respect for the right to effective judicial protection” (see Verfassungsblog).

Despite cooler relations due to different stances on the war in Ukraine, Poland has announced it would oppose EU rule of law sanctions on Hungary (Euractiv).The Polish government has also refused to cooperate in another case: it did not show up for the EP inquiry into the use of Israeli spyware Pegasus to target Polish opposition politicians, lawyers, and prosecutors (EUObserver).

• Spain

Věra Jourová has warned the Spanish government in a letter to urgently renew the National Council for the Judiciary (CGPJ). This body, which guarantees the independence of courts, has been acting on an interim basis for four years now. Similar concerns were stressed in the annual rule of law report by the EC (EUObserver).

• EU-wide

On 13 September, EC President Ursula von der Leyen provided the State of the Union address. Whereas it predominantly focused on the situation in Ukraine, VDL dedicated one small part on rule of law in the EU, stressing the importance of upholding judicial independence and protecting the budget through the conditionality mechanism. According to some, VDL should have stressed more the urgency to protect democratic values (EUObserver). The announced plan for a new “Defense of Democracy package” addresses corruption and interference from outside of the EU, hence less relevant for the internal rule of law situation (Politico; Politico). A couple days after the State of the Union speech, the EC shared their proposal on a new European Media Freedom Act (EMFA), which sets new rules and standards to safeguard media freedom and pluralism in the Union (Politico; EUObserver). Not everyone shares the same enthusiasm about the draft regulation: publishers are worried the new rules enhancing the power of media regulators could limit publishers’ editorial control over their publications (Politico). The Meijers Committee organized a Conference on Media Freedom and Pluralism in EU law on 11 October 2022 in Brussels, as a response to the brand new EMFA proposal. In two panel discussions, the existing EU legal instruments as well as the draft act were discussed (find the report and recordings of the event here).

Responding to several revelations on the use of illegal spyware instruments by Member States against the political opposition, civil society, lawyers and even MEPs, Commissioner Schinas urged for legislative action to prevent intelligence and security services at a national level from violating EU fundamental rights (Politico; EUObserver). In another privacy related issue, the European Data Protection Supervisor took legal action against the Council and EP for adopting legislation that would retroactively legalize the very data-handling practices by Europol that the EDPS had earlier ruled unlawful (Politico). 

In the quest to prevent gridlock-situations on sanctions or human rights matters, EU affairs ministers have tried to get rid of the unanimity voting. Yet, they failed to reach agreement, facing too much opposition (EUObserver).

The Fundamental Rights Agency (FRA) released its 2022 report on Europe’s civil society. Civil society is essential for upholding the rule of law, but it also faces multiple challenges (such as harassment and restrictive legislation) in EU Member States, according to the Agency (see FRA report)

Further readings and media

France’s new EU minister in Bled to stand up for Europe, rule of law (Euractiv, 29.08.22): https://www.euractiv.com/section/politics/short_news/frances-new-eu-minister-in-bled-to-stand-up-for-europe-rule-of-law/

Scholz pitches major EU enlargement — with reform  (Politico, 29.08.22): https://www.politico.eu/article/scholz-eu-enlargement-reform-prague-charles-university/

Lesbian conference planned for Budapest to defy Orban (EUObserver, 22.09.22): https://euobserver.com/rule-of-law/155938

‘We must take back institutions’, Orban tells US conservatives (EUObserver, 05.08.22): https://euobserver.com/rule-of-law/155715

The EU and its hybrid regimes are poisoning each other (Politico, 23.08.22): https://www.politico.eu/article/eu-hybrid-regime-poison-each-other-democracy-spitzenkandidaten/

Łętowska, Ewa: Defending the Judiciary: Strategies of Resistance in Poland’s Judiciary, VerfBlog, 2022/9/27, https://verfassungsblog.de/defending-the-judiciary/

Halmai, Gábor: Coping Strategies of the Hungarian Constitutional Court since 2010, VerfBlog, 2022/9/27, https://verfassungsblog.de/coping-strategies-of-the-hungarian-constitutional-court-since-2010/

Çalı, Başak; Costello, Cathryn: Coping Strategies: Domestic and International Courts in Times of Backlash, VerfBlog, 2022/9/26, https://verfassungsblog.de/coping-strategies-domestic-and-international-courts-in-times-of-backlash/

Steinbeis, Maximilian: Wholly Autonomously, VerfBlog, 2022/9/16, https://verfassungsblog.de/wholly-autonomously/

Marin, Luisa: Frontex and the Rule of Law Crisis at EU External Borders: A Question of Legal Design?, VerfBlog, 2022/9/05, https://verfassungsblog.de/frontex-and-the-rule-of-law-crisis-at-eu-external-borders/

Kovács, Ágnes: Defective Judicial Appointments in Hungary: The Supreme Court is Once Again Embroiled in Scandal, VerfBlog, 2022/9/27, https://verfassungsblog.de/defective-judicial-appointments-in-hungary/

Kochenov, Dimitry Vladimirovich; Roy, Suryapratim: Putinism is Contagious: Blanket Visa Bans on Russian Citizens and the Rule of Law, VerfBlog, 2022/8/19, https://verfassungsblog.de/putinism-is-contagious/

Szwed, Marcin: Testing judicial independence: On the recent developments in the Polish rule of law crisis, VerfBlog, 2022/8/18, https://verfassungsblog.de/testing-judicial-independence/

Sadurski, Wojciech: Extinguishing the Court: Why There Is No Salvation for the Current Polish Constitutional Tribunal, VerfBlog, 2022/8/14, https://verfassungsblog.de/extinguishing-the-court/

Boone, Miranda: Judges on politically sensitive descisions, Leiden Law Blog 19.07.22:https://www.leidenlawblog.nl/articles/judges-on-politically-sensitive-descisions

Ucín, María Carlota: And what if the courts could strengthen our democracies? Leiden Law Blog 09.07.22: https://www.leidenlawblog.nl/articles/and-what-if-the-courts-could-strengthen-our-democracies

News from the courts

No remarkable news from the CJEU and ECtHR.

Poland

Rule of law report 2022, Country chapter Poland:

The report expressed serious concerns regarding the independence of the Polish judiciary (in particular, the perpetuating irregularities in the appointment of judges in Poland, as well as the separation of the roles of the justice minister and prosecutor general). Whereas the implementation of the anti-corruption program was finished, essential parts remained uncompleted, and concerns and risks of corruption remain. Media freedom and pluralism deteriorated, causing the EC to urge the polish government to ensure a fair way to decide on operating licences for media. Issues on checks and balances also continue, which are to be resolved.

Despite these rule of law concerns, the EC gave green light to the 35 billion euro recovery plan for Poland in June, provided that the Polish government meets certain conditions (“milestones”) to ensure an independent judiciary in Poland (on that note, see Politico article on controversial Polish judge). Whereas the Polish government has meanwhile adopted a law abolishing the controversial disciplinary chamber for judges, commissioners Jourova and Reynders as well as MEPs have deemed it insufficient to meet the milestones as Polish law lacks safeguards against the penalization of judges and the distribution of public funds is increasingly politicized (see EU Observer; EU Observer).

Hungary

Rule of law report 2022, Country chapter Hungary:

The report expressed ongoing concerns over corruption risking “clientelism, favouritism and nepotism in high-level public administration”, while the anti-corruption strategy has been postponed. The EC also raised concerns regarding the lack of judicial independence (which remains “unaddressed”), urging the Hungarian government to strengthen the role of the National Judicial Council and rules for the judicial appointments of Hungary’s Supreme Court. The system of checks and balances should be improved, as well as the media freedom and pluralism (as the independent public media is under threat).

Unlike the conditional approval of the recovery budget for Poland, Hungary has not been authorized by the EC to utilize EU recovery money, pending the rule-of-law mechanism which was triggered in April this year. According to Commissioner Reynders, the Hungarian government has still reforms to make on the rule of law and anti-corruption. (see EU Observer). Meanwhile, Hungary aims to reach agreement with the EC to unlock the pandemic funding by the end of August (Reuters; EU Observer; Euractiv), since domestic economy is facing difficult times (EU Observer; EU Observer). However, Prof. Scheppele has raised concerns about such agreement, as it would “throw away” the rule of law in Hungary (see Verfassungsblog), and other experts are also cautious (see Euractiv). Moreover, the Member State’s antagonistic stance on sensitive issues such as Russian energy and global minimum tax might complicate negotiations in the first place (see EU Observer; see also this Politico opinion, and previous Rule of Law update). Orban’s comments on “race mixing” probably does not help either (see Politico).

At the same time, some critics have argued for even further-reaching measures. According to a legal study by professors Scheppele, Kelemen, and Morijn, the EC should suspend 100 percent of EU funds to Hungary. Assessing the appropriate and proportionate financial consequences to the fundamental and widespread rule of law problems in Hungary, the report concluded that “[f]or rule of law breaches covered by the Regulation that are so fundamental, frequent or widespread that they represent a complete failure of the budgetary implementation and monitoring system in a Member State, the only measures in response that could be considered both appropriate and proportionate, would be suspensions, reductions and interruptions of 100% of the flow of EU funds.” The report was solicited by Freund (MEP Greens/EFA) and supported by MEPs from the centre right EPP, socialist S&D and the liberal Renew Europe (see EU Oberver; see also more generally, Euractiv).

Other Member States

The rule of law report also illustrates problems in other EU Member States, concerning for instance the protection of journalists (Slovenia, Malta, Greece, Ireland) and reporters (Italy), the independence of the prosecutor general (Spain), and independence of governance (Slovenia). More specifically, after the controversy of Neelie Kroes with Uber, the EC recommended the Netherlands to develop a lobbying code of conduct for ministers and other officials.

Jourova: “The EU’s rule of law report shows that there is no country or system that is perfect. Everyone has its own challenges and Germany is no exception, even though the overall situation in the country is positive.” (…) “This is why, for the first time in the report, each member state got homework to do.” (see Politico) However, the situation in Hungary and Poland is the most concerning (see Politico)

Note the very critical remarks by former Prime Minister Fico of Slovakia on the country report of his country (Euractiv).

See all country chapters as part of the Rule of Law Report 2022 here.

EU wide

On 7 July, the EP discussed the issue of Russian ties to EU political parties, turning out in a heated debate. Commissioner Jourová stressed the importance of new EC proposals on political advertising, electoral rights, and party funding (see here), as well as a new EC toolkit to help mitigate foreign interference in research and innovation (see here). Mikulas Bek of the new Czech EU presidency regarded the issue a top priority (EU Observer). Note that the EC proposed last year to allow EP political parties and foundations to collect contributions from member parties or organisations located in States beyond the EU borders, belonging to the Council of Europe (see Euractiv).

Meanwhile, apart from the Pagasus controversy (see Euractiv and Politico) several EU Member States are employing mass surveillance techniques, despite CJEU rulings (see Politico). This comes in the wake of the Pegasus scandal Defiance of EU law amongst many EU Member States appears to be a more general and widespread concern (see documentation by Politico).

Further readings and media

Scheppele, Kim Lane: Will the Commission Throw the Rule of Law Away in Hungary? , VerfBlog, 2022/7/11, https://verfassungsblog.de/will-the-commission-throw-the-rule-of-law-away-in-hungary/

NEWS FROM THE COURTS 

• CJEU

On 28 and 29 June the hearings took place of the joint case relating to the independence of the judiciary and the state of the rule of law in Poland (C-204/21, C-615/20 C-671/20, C-181/21, C-269/21).

The AG’s opinions in these cases will be delivered on 15 December 2022.

• ECtHR

On 16 June, the ECtHR rendered a decision in the Żurek v. Poland case.

“The applicant in this case, a judge, was also spokesperson for the National Council of the Judiciary (NCJ), the constitutional body in Poland which safeguards the independence of courts and judges. In that capacity, he had been one of the main critics of the changes to the judiciary initiated by the legislative and executive branches of the new Government which came to power in 2015. The case concerned his removal from the NCJ. He alleged in particular that he had been denied access to a tribunal and that there had been no procedure, judicial or otherwise, to contest the premature termination of his mandate. He further submitted that his dismissal as spokesperson for the regional court, combined with the authorities’ decisions to audit his financial declarations and to inspect his judicial work, had been intended to punish him for expressing criticism of the Government’s legislative changes and to warn other judges off of doing the same. The Court held that there had been a violation of Article 6 § 1 (right to a fair trial) and a violation of Article 10 (freedom of expression) of the Convention in the present case. Following the same reasoning as in the case Grzęda v. Poland, it found that the lack of judicial review of the decision to remove the applicant from the NCJ had breached his right of access to a court. The Court also found that the accumulation of measures taken against the applicant – including his dismissal as spokesperson of a regional court, the audit of his financial declarations and the inspection of his judicial work – had been aimed at intimidating him because of the views that he had expressed in defence of the rule of law and judicial independence. In finding these violations, the Court emphasised the overall context of successive judicial reforms, which had resulted in the weakening of judicial independence and what has widely been described as the rule-of-law crisis in Poland.”

Later in June, the ECtHR issued another significant judgement on a Spanish case regarding the rights of judges: M.D. et al. v. Spain. “[T]he European Court of Human Rights held, unanimously, that there had been a violation of Article 8 (right to respect for private and family life) of the European Convention on Human Rights. The case concerned the compiling of files by the police in Catalonia on judges who had expressed certain views on that region’s independence from Spain. Material from the files, including photographs, had been subsequently leaked to the press. The Court found in particular that the mere existence of the police reports, which had not been compiled in accordance with any law, had contravened the Convention. As for the investigation into the leak, the Court found it to have been inadequate owing to the failure to interview a person crucial to the investigation, the Senior Chief of Police of Barcelona.”

The Strasbourg Court also found in Haščák v. Slovakia that Slovakia had violated Article 8 (right to respect for private and family life), in a case concerning a “Gorilla operation” carried out in 2005 and 2006 by the Slovak Intelligence Service and the intelligence material obtained by it. The Court found deficiencies in the applicable rules and procedures of the surveillance operation, and the lack of external oversight.

In the case of Grosam v. the Czech Republic, the ECtHR decided that the latter was in violation of Article 6(1), as the Czech Supreme Administrative Court – sitting as a disciplinary court for enforcement officers – had issued a fine in disciplinary proceedings despite it not being an “independent and impartial tribunal” due to the lack of transparency and independence.

Poland

Despite widespread internal and external criticism, the European Commission has approved on 1 June a plan for Poland to unlock the roughly 36 billion Euros from the EU recovery fund. To access the money, Poland should meet certain conditions (“milestones”) aiming to guarantee an independent judiciary within the Member State. This includes dismantling a controversial disciplinary body for judges by the end of June, which the CJEU had declared illegal in July 2021 (the Court later imposed a daily €1 million fine when Poland failed to suspend the system). Furthermore, Poland should ensure that judges suspended by the chamber have their cases reviewed. These are the conditions for the first disbursement. An additional third milestone for the end of 2023 should guarantee a completion of the review proceedings, with a view to the reinstatement of the dismissed judges. (See Politico, EU Observer, and Euractiv).

Commission President Ursula von der Leyen defended the plan in Warsaw on 2 June, in spite of unprecedented dissent by five prominent commissioners. (See Politico and Euractiv; see the leaked five dissenting letters on Twitter)

MEPs disapproved the plan and expressed their “grave concerns”. They called on the Council to only approve the recovery plan once Poland has implemented the recent CJEU judgement, including the reinstatement of dismissed judges. (EU Observer, Euractiv)

Von der Leyen responded to the criticism by pledging not to disburse funds before Poland delivers on the first two of three conditions: abolishing the disciplinary chamber for judges and reforming the disciplinary regime. She reiterated that the third milestone – the reinstatement of dismissed judges – should be done by the end of 2023. The MEPs thought this was not enough. (EU Observer). Some MEPs even considered drawing up a motion of censure, which eventually failed support (See Euractiv, Euractiv)

Meanwhile, the Polish people seems to be split on the matter, as a third of the Poles believes that the money should not be granted until the Polish government fulfils the conditions concerning judicial independence. (Euractiv).

There was also division within the ruling PiS party on the plan, as the agreement allegedly had not been agreed on within the ruling coalition. (Euractiv). Simultaneous other concerns were expressed, for instance regarding the LGBT-free zones in Poland. Justice Minister Zbigniew Ziobro argued that the EU was blackmailing the local governments to withdraw these zones by depriving them of funding for i.a. infrastructure if they maintained the status quo. (Euractiv)

On that matter, a Polish appeals court ruled on 28 June that these zones were illegal and must be scrapped in four municipalities. (Euractiv)

Hungary

During the 23 May Council hearings regarding the Art 7 procedure in relation to Hungary, several concerns were expressed, i.a. on the perceived absence of a level playing field during the recent parliamentary elections, the recent state of emergency, the independence of the judiciary, and the effective access to the right of asylum. The Hungarian delegation denied all concerns. (Statewatch). On 21 June, the Unhack Democracy Conference emphasized the importantce of free and fair elections to ensure liberal democracy (EU Observer, including the recordings of the conference).

In the meantime, Hungary blocked the EU deal on minimum corporate tax rate. After Poland dropped its opposition, an agreement was expected. (EU Observer, Euractiv). Hungary allegedly uses this veto to exert pressure on the approval by the Commission of Hungary’s recovery plan (EU Observer), which is important to boost Hungary’s current problematic economic situation. (EU Observer)

Czech Republic

Just before the start of the Czech presidency of the Council, the Member State suffered a dent, as a member of the Czech coalition resigned as deputy mayor of Prague and was taken into custody on suspicion of running an organized crime operation (involving bribery) from the Prague City Hall. (EU Observer)

EU wide

During a hearing of the special inquiry committee in the EP, the Israeli NSO Group informed the MEPs that at least 5 EU Member States were using Pegasus spyware. It has been used against politicians in Poland, journalists in Hungary, and on EU level against several MEPs and commissioner Didier Reynders (EU justice). (Politico, EU Observer)

Further readings and media

Jaraczewski, Jakub: Just a Feint?: President Duda’s bill on the Polish Supreme Court and the Brussels-Warsaw deal on the rule of law, VerfBlog, 2022/6/01: https://verfassungsblog.de/just-a-feint/

Bornemann, Jonas: Green light or white flag? The European Commission’s endorsement of the Polish recovery plan and its implications for the rule of law crisis, European Law Blog, 2022/8/6: https://europeanlawblog.eu/2022/06/08/green-light-or-white-flag-the-european-commissions-endorsement-of-the-polish-recovery-plan-and-its-implications-for-the-rule-of-law-crisis/

LIBE–AFCO Joint Public Hearing on “Rule of law mechanisms in the EU 2022/6/20: https://www.europarl.europa.eu/news/en/press-room/20220620IPR33409/rule-of-law-in-the-eu-ways-to-better-protect-the-union-s-core-values

Pech, Laurent: Covering Up and Rewarding the Destruction of the Rule of Law One Milestone at a Time, VerfBlog, 2022/6/21: https://verfassungsblog.de/covering-up-and-rewarding-the-destruction-of-the-rule-of-law-one-milestone-at-a-time/

Morijn, J. (2022). The Law and Politics of Protecting Liberal Democracy. (Inaugural lectures University of Groningen). University of Groningen Press: https://pure.rug.nl/ws/portalfiles/portal/224636215/Oratie_John_Morijn.pdf

Dalkilic, Evin: Generation Action, VerfBlog, 2022/6/26: https://verfassungsblog.de/generation-action/