Juan Gálvez Galisteo (PhD student at the University of Seville, undertaking a research stay at the University of Minho)
I.
27 February 2018. This is the date on which the Court of Justice of the European Union (CJEU) handed down its landmark judgment in the “Portuguese Judges” case [Associação Sindical dos Juízes Portugueses v. Tribunal de Contas (ASJP)].[1] Seven years have passed since that crucial judgment in the ongoing process of European integration. Was its importance foreseeable at the time? Could anyone have predicted that it would have such a profound impact on democratic coexistence within the European Union (EU)? What consequences did this judgment have? Does it still have an impact in the current European context? What considerations should be weighed up for the future?
This text aims to analyse these issues, albeit briefly, in order to contribute to and encourage the academic debate on the constitutionalisation of the European Union and the defence of its values, as set out in Article 2 of the Treaty on European Union (TEU), with special attention, for obvious reasons, to the rule of law.
II.
The ASJP case arose as part of a preliminary ruling procedure submitted to the CJEU by the Portuguese Supreme Administrative Court, using the procedure laid down in Article 267 of the Treaty on the Functioning of the European Union (TFEU). In this reference for a preliminary ruling, the CJEU was asked to rule on the compatibility with EU law of a temporary reduction in the salaries of the judges of the Portuguese Court of Auditors (Tribunal de Contas), through a law that implemented a salary reduction for civil servants in Portugal during a period marked by the economic crisis. Specifically, the question was whether such measures were compatible with the principle of judicial independence, in the light of the second subparagraph of Article 19(1) of the TEU and Article 47 of the Charter of Fundamental Rights of the European Union (CFREU), as well as the case law of the CJEU.
In its ruling, the Court expressed the compatibility of the salary reduction measures adopted, but it was not the issue of judges’ remuneration that received the most attention from the Court. This came as no surprise in the academic discourse, both in Portugal and in other countries.[2] And this was due to the alarming judicial reform actions carried out by some EU member state governments in the years leading up to the judgment in question.
It is well known that the CJEU has progressively codified the values set out in Article 2 of the TEU. In this regard, considering the reasons that make this judgment so significant, we are faced with the innovative and original interpretation of the second subparagraph of Article 19(1) of the TEU – “Member States shall provide the remedies necessary to ensure effective judicial protection in the fields covered by Union law” –, through which the Court emphasises that this is the concretisation of the value of the rule of law enshrined in Article 2 TEU. Judicial independence, one of the essential principles of the rule of law, expressed in Article 19 TEU and Article 47 CFREU, had not been explicitly defined in the Treaties. Therefore, it was up to the CJEU to take the lead in its concretisation within the EU.
In that landmark ruling, the CJEU developed the notion of judicial independence, stating that it entails that “…the body concerned exercises its judicial functions wholly autonomously, without being subject to any hierarchical constraint or subordinated to any other body and without taking orders or instructions from any source whatsoever, and that it is thus protected against external interventions or pressure liable to impair the independent judgment of its members and to influence their decisions…” and also referring to the irremovability and appropriate remuneration for their duties as guarantees of judicial independence.[3]
Once defined, the CJEU positioned judicial independence as an inherent aspect of the judicial function, making it a decisive criterion for ensuring that citizens can enjoy effective judicial protection.[4] Furthermore, as had already been demonstrated in the Wilson case,[5] the Court reiterated that judicial independence has both an external and an internal dimension. The external dimension refers to matters related to the unfettered performance of judicial duties without external or administrative pressures, as well as the organisation of the judiciary itself – that is, it affects issues such as irremovability, remuneration, or access to the judicial career –, whereas the internal dimension pertains to impartiality before the parties when resolving cases. In this way, the Court further established that an adequate judicial review, as an expression of effective judicial protection, is inherent to the rule of law.
The CJEU gave substance and operationalised the effective judicial protection recognised in the second subparagraph of Article 19(1) of the TEU for the proclamation and defence of its values, creating an arguable extension of its scope of protection, in which “the fields covered by Union law” encompass a wider margin than the scope of Union law (“when they are implementing Union law”, as provided for in Article 51 CFREU), while still navigating the limits of the principle of conferral of powers. Consequently, through this innovative interpretation of Article 19 TEU, the Court has effectively given itself the power to review national rules on the organisation and administration of justice, something which was not expressly provided for in the Treaties and which was traditionally reserved for and intrinsically linked to national sovereignty.[6] This self-concession of competences was justified in the name of the effectiveness of European law, since national courts are potential enforcers of Union law; thus, the CJEU considered them to be part of the “European judiciary” that must respect the values of the Union.[7]
Based on the above, the national judge, as an EU judge (Simmenthal case),[8] must possess independence as a guarantee of the effective judicial protection of European citizens. Effective judicial review is not only the responsibility of the CJEU but also of national courts, which together form the “European judiciary.” The bodies that make up this judicial system must meet the requirements of effective judicial protection, which is primarily a duty of the Member States. In the event of non-compliance, and due to its significance in relation to common values, this may necessitate intervention by the EU.
Moreover, the independence of the judicial bodies of the various Member States was highlighted as essential to European integration, aimed at fostering mutual trust and loyal cooperation [Article 4(3) TEU] in judicial dialogue, with particular attention to procedures for arrest and surrender.
Thus, the ASJP case truly earned its reputation because it helped to concretise the concept of the rule of law through a defining element such as judicial independence, confirmed the European judicial architecture, with judges who are organically national but functionally European.[9] And, thanks to this, it reminded us that to be part of the EU, judicial independence is required both in the organisation of the administration of justice and in the courts responsible for applying EU law, emphasising that EU is an organisation based on the rule of law (“Union of law”).
In conclusion, due to the principles outlined in the ASJP case, it can be considered a key reference in the construction of a Union of law, and is perfectly comparable to the paradigmatic declaration for the conception of a Union of law in Les Verts case.[10] Through “judicial integration”[11] the CJEU reconfigured the constitutional order of the EU[12] and placed national measures that could affect judicial independence under its supervision, which proved fundamental in opening the door to its intervention concerning Polish judges.[13]
III.
As expected, the Court of Justice was keen to have its say in the emerging debate on the crisis of the rule of law in the European legal area, with particular attention to measures that could jeopardise judicial independence in Poland and other Member States. Its interpretation in the ASJP case was crucial in resolving the preliminary rulings and infringement proceedings that arose in the Polish saga. Although case law in this area has largely developed in the context of the Polish case, it should not be forgotten that the CJEU has also had to intervene in response to requests from other Member States, such as in the Repubblika case[14] or the Asociaţia Forumul Judecătorilor din România case.[15]
The reality is that the EU could not remain inactive in the face of this concerning dynamic. The negative trend in matters relating to judicial independence could not be treated as an internal issue of the Member States, as it was essentially a European constitutional crisis due to its impact on European values. A deficient rule of law at the national level is also a deficient rule of law within the EU.[16] Furthermore, its shortcomings had a broader influence on other values, and the rule of law was being positioned as the all-affected principle,[17] meaning that internal populism with clear nationalist tendencies and its usual practices were clashing with the European integration process.[18]
As expected, the intervention of the CJEU and the European institutions in general was not well received by the populist national governments. Poland expressed its rejection of the CJEU’s intervention, arguing that the organisation of national justice administration could not fall within the Union’s competences and that such matters were within areas where States enjoyed a wide margin of discretion.[19] In any case, it is important to highlight that, despite the controversies and arguments against it, the Court has remained steadfast in its role since ASJP.
Furthermore, it should be noted that in the face of the failure of other avenues, such as political solutions or dialogue, notably the mechanism provided for in Article 7 of the TEU, it was the CJEU that took the strongest stance in defence of the rule of law in the EU, largely thanks to the fact that the ASJP ruling ensured a higher level of enforceability of European values.[20]
Currently, it cannot be said that threats to judicial independence are merely a bad memory within the European community. However, thanks to the CJEU’s interpretation of Article 19 TEU, the EU has made significant progress in its constitutionalisation, establishing that national courts are bound by the fundamental principles of the Union because they are key components of the Union’s judicial system.[21] While States retain the freedom to organise their national powers according to their preferences, the Union, through its Court of Justice, reserves the right to supervise such measures.[22]
Without the ASJP judgment, the defence of the rule of law in Europe over the last 8 years would probably not have had the same impact. The interpretation in that February 2018 case has been continually reiterated, once again positioning the intervention of the Court of Justice as the key element in responding to the EU’s challenges, and allowing the work of other institutions to develop, such as the European Commission and its proposals for strengthening the rule of law, its annual reports, or the approval of the Rule of Law conditionality regulation. They all play a part, but the CJEU and its jurisprudence, notably in the ASJP case, are crucial instruments for defending the rule of law against current and future challenges.
IV.
The role played by the CJEU, as vital as it has been at other key moments in European integration, leads us to consider that perhaps it deserves and requires an analysis of its position in the face of serious violations of European values.[23] It is possible to reflect on institutional engineering reforms that would allow for its intervention and rulings in the face of potential threats, among other reasons, once the clear inefficiency of the requirements of Article 7 TEU has become evident.
If a European judiciary has been fully established, with the CJEU at its apex, it could be beneficial to advocate for an appropriate system of appeals, beyond the role national courts must play in judicial dialogue through the submission of preliminary questions under Article 267 TFEU, which is fundamental for giving substance to fundamental rights through the analysis of domestic legislation.[24]
Judicial integration is vital for the effectiveness of European law, as well as for the promotion of EU values and the prevention of potential dynamics that jeopardise them. However, it is not only for this reason; through this analysis of national judicial systems, it would also be desirable that, in addition to independence, other issues within national judicial systems that could be improved – such as aspects of electronic justice[25] or delays in the resolution of cases – are assessed. These issues could fall within the scope of effective judicial protection under Article 19 TEU and would contribute to the implementation of improvements in the quality of judicial systems in the Member States.
In conclusion, the ASJP case goes down in history because it was a milestone in the defence of the rule of law in the EU through the principle of judicial independence as a prerequisite for effective judicial protection; it lingers in the present because the threats have not disappeared and its integrative interpretation clashes with anti-European rhetoric; and, above all, it lies is future because it provides ideas on how the EU can respond in the coming period, having set a very useful precedent for the ongoing process of European integration through the Union of law.
[1] Judgment CJEU Associação Sindical dos Juízes Portugueses v. Tribunal de Contas, 27 February 2028, case C-64/16, ECLI:EU:C:2017:395.
[2] For an in-depth analysis, see Alessandra Silveira, Joana Abreu, Pedro Froufe, Sophie Perez, “União de direito para além do direito da União – as garantias de independência judicial no acórdão Associação Sindical dos Juízes Portugueses”, Julgar online – Revista da Associação Sindical dos Juízes Portugueses (2018), http://julgar.pt/uniao-de-direito-para-alem-do-direito-da-uniao-as-garantias-de-independencia-judicial-no-acordao-associacao-sindical-dos-juizes-portugueses/.
[3] Judgment Associação Sindical dos Juízes Portugueses, recitals44-45.
[4] Judgment Associação Sindical dos Juízes Portugueses, recitals43.
[5] Judgment CJEU Wilson, 19 September 2006, case C-506/04, ECLI:EU:C:2006:587.
[6] Michael Krajewski, “Associação Sindical dos Juízes Portugueses: the Court of Justice and Athena’s dilemma”, European Papers, vol. 3, no. 1 (2018): 395-407.
[7] Nuria Magaldi, “La construcción de un poder judicial europeo y las garantías de su independencia”, Revista Española de Derecho Constitucional, 125 (2022): 127-157.
[8] Judgment of the Court Simmenthal, 9 March 1978, case 106/77, ECLI:EU:C:1978:49.
[9] Araceli Mangas Martín, “Defensa del Estado de Derecho por la Unión Europea: la rebeldía de Polonia a la independencia judicial”, Anales de Real Academica de Ciencias Morales y Políticas, 99 (2022): 527-552.
[10] Judgment of the Court Les Verts, 23 April 1986, case 294/83, ECLI:EU:C:1986:166.
[11] Joana Covelo de Abreu, “National courts and effective judicial protection: from cooperation to judicial integration in the European Union procedure” (PhD diss., University of Minho, 2015), https://hdl.handle.net/1822/38880.
[12] Michal Ovádek, “Has the CJEU just reconfigured the EU constitutional order?”, VerfBlog, 28 February 2018, https://verfassungsblog.de/has-the-cjeu-just-reconfigured-the-eu-constitutional-order/, DOI: 10.17176/20180228-134754.
[13] Inês Pereira de Sousa, “O acórdão Associação Sindical de Juízes Portugueses como antecâmara para a intervenção do TJUE na crise do Estado de direito na União Europeia”, Revista Ibérica Do Direito, 1(1) (2021): 84-94, https://revistaibericadodireito.pt/index.php/capa/article/view/28.
[14] Judgment Repubblika v. Il-Prim Ministru, 20 April 2021, case C-896/19, ECLI:EU:C:2021:311.
[15] Judgment Asociaţia “Forumul Judecătorilor din România” and YN v. Consiliul Superior al Magistraturii, 7 September 2023, case C-216/21, ECLI:EU:C:2023:628
[16] Armin von Bogdandy and Michael Ioannidis, “La deficiencia sistémica en el Estado de derecho. Qué es, qué se ha hecho y qué se puede hacer”, Revista DE Estudios Políticos, 165 (2014): 19-64.
[17] Carlos Closa, “Reinforcing EU monitoring of the rule of law: normative arguments, institutional proposals and the procedural limitations”, in Reinforcing rule of law oversight in the European Union, ed. Carlos Closa and Dimitry Kochenov (Cambridge: Cambridge University Press, 2016).
[18] Alessandra Silveira and Pedro Froufe, “Integração europeia em crise de identidade: Causas e perspetivas jurídico-constitucionais entre o populismo, a política e o poder”, Dilemas – Revista de Estudos de Conflito e Controle Social, 11(2) (2018): 315-333, https://www.redalyc.org/articulo.oa?id=563866236008.
[19] Patrícia Fragoso Martins, “Ainda a propósito da independência do poder judical na União Europeia: revisitando a responsabilidade do estado-juiz por violação do direito da União e suas aplicações na jurisprudência portuguesa”, E-Publica, vol. 9, issue 1 (2022), https://e-publica.pt/article/36847-ainda-a-proposito-da-independencia-do-poder-judical-na-uniao-europeia-revisitando-a-responsabilidade-do-estado-juiz-por-violacao-do-direito-da-uniao.
[20] Piotr Bogdanowicz and Matthias Schmidt, “The infringement procedure in the rule of law crisis: How to make effective use of Article 258 TFEU”, Common Market Law Review, 55 (4) (2018): 1061‑1100.
[21] Patrícia Fragoso Martins, Direito constitucional europeu. Fundamentos, instituições, princípios e garantias (Universidade Católica, 2022).
[22] Matteo Bonelli and Monica Claes, “Judicial serendipity: how Portuguese judges came to the rescue of the Polish judiciary: ECJ 27 February 2018, Case C-64/16, Associação Sindical dos Juízes Portugueses”, European Constitutional Law Review, 14(3) (2018): 622-643. doi:10.1017/S1574019618000330.
[23] Ugo Villani, “Sul controllo dello Stato di diritto nell’Unione europea”, Freedom, Security & Justice: European Legal Studies, Rivista quadrimestrale online sullo Spazio europeo di libertà, sicurezza e giustizia, no. 1 (2020).
[24] Ana Carmona Contreras, “El espacio europeo de los derechos fundamentales: de la Carta a las constituciones nacionales”, Revista Española de Derecho Constitucional, 107 (2016): 13-40.
[25] Joana Covelo de Abreu, “Independente? Imparcial? Os desafios à União de direito e a justiça eletrónica europeia como instrumento original ao serviço da tutela jurisdicional efectiva”, in Liber Amicorum Benedita Mac Crorie volume I, ed. A. Sofia Pinto Oliveira & Patrícia Jerónimo (UMinho Editora, 2022), 527–555, https://doi.org/10.21814/uminho.ed.97.26.
Picture credit: by Sora Shimazaki on pexels.com.
