Rule of Law Update – April 2024


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.

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