Should judge associations have standing to challenge EU measures which allegedly breach judicial independence and the rule of law? This is the question to be decided on appeal by the Court of Justice following the Order of the General Court of 4 June 2024 in Magistrats européens pour la démocratie et les libertés (Medel) and others v. Council (T-530/22 to T-533/22). In that Order, the General Court’s Grand Chamber rejected as inadmissible the actions of various European judge associations against the Council’s decision which approved Poland’s intended use of funds from the EU’s pandemic-era recovery instrument, the Recovery and Resilience Facility (‘RRF’).
On their substance, these actions contest the legality of the judicial-independence ‘milestones’ concerning Poland’s Recovery and Resilience Plan (‘RRP’), which that Member State must comply with as a precondition for the disbursement of EU funds. However, following the General Court’s ruling, the case is, for now, limited on appeal to the standing (locus standi) of private parties or their representative associations. Will the Court of Justice rule that an action purporting to defend judicial independence should benefit from less stringent standing criteria?
That is unlikely.
A Principled Enquiry: Can You Defend the General Good in Court?
Amid this regulatory-procedural thicket lies a principled enquiry. It relates to whether actions defending the general good should be admitted under relaxed standing conditions. On appeal, the judge associations claim standing based on the still-recent climate-change-related judgment of 9 April 2024 of the European Court of Human Rights (‘ECtHR’) in Verein KlimaSeniorinnen Schweiz v. Switzerland (‘KlimaSeniorinnen’), in which the ECtHR granted associations broader standing in order to vindicate rights under the European Convention on Human Rights (‘ECHR’) and to hold States to their commitments in fighting climate change.
Are challenges to the preservation of judicial independence, though no doubt fundamental in a constitutional democracy based on the rule of law, akin to those regarding access to courts in climate-change litigation? The standing rights of associations defending general causes is a notoriously complex issue. Others claiming the need for broadened standing include, for example, the environment, or yet those legally ‘voiceless’ groups such as animals or future generations. The present appeals invite the Court of Justice to reflect on what interests, if any, should be afforded broadened rights of standing.
Contesting the Judicial-Independence ‘Milestones’: the Context
The contested act is the Council’s implementing decision of 16 June 2022 on the approval of the assessment of Poland’s RRP, as amended, adopted under the Regulation 2021/241 on the Recovery and Resilience Facility (‘RRF Regulation’). Under the RRF, the EU makes available to Poland almost EUR 60 billion [sic] in non-repayable support and loans. However, the funds come with strings attached. Before any payments are made, Poland is required to meet certain crucial ‘milestones’, specified in the annex to the contested act, relating to strengthening the independence of the judiciary and, in particular, to fixing problems connected to the Polish Supreme Court’s chamber for disciplinary procedures against judges.
The milestones have been criticised for reducing the ‘rule of law crisis’ in Poland to legislative quick fixes. To recall, at the time, Poland’s constitutional tribunal had recently purported to nullify the principle of judicial independence in EU law (see eg Craig here) and the ‘Law and Justice’ (PiS) government remained unresponsive to European criticism. In this context, the milestones appeared to many as too narrow (for more contextual analysis, see my previous Op-ed here). That said, some of this criticism was also misguided given that the contested act did not immediately disburse the funds under the RRF to Poland. Instead, a separate Commission assessment under Article 24 of the RRF Regulation continued to be required to ensure compliance with the milestones (on that procedure, see here).
In this setting, the judge associations’ actions, introduced in 2022, essentially sought to challenge the way the Council framed the situation in Poland in terms of milestones which, in their view, did not guarantee judicial independence and the right to effective judicial protection under EU law, or the protection of the EU’s financial interests under the RRF Regulation.
The General Court: Not Your Business, Judges
The General Court rejected the actions as inadmissible. Having first dismissed the specific possibility for the judge associations to act under the RRF or that the associations’ own particular interests could be sufficiently affected by the contested act, it then focused on whether the members of the associations – judges – could be ‘directly concerned’ by that act, within the meaning of Article 263(4) TFEU, the provision which famously sets out the standing criteria for private litigants. Applying the Nord Stream 2 case law (see C-348/20 P), the General Court essentially held that the contested act did not affect directly either the Polish judges concerned by disciplinary proceedings, let alone judges in other Member States. No sufficient nexus between the Council’s approval of the RRP, including the milestones, and the legal situation of those judges existed (see para. 88 of the Order).
Instead, for the General Court, the contested act was about budgetary conditionality. Its purpose was to ensure compliance with the RRF Regulation, provide an ‘effective response to the challenges identified in the context of the European Semester’, and to ensure that the EU’s financial interests are not adversely affected by the RRP’s implementation (see paras 74 and 75). As such, the purview of the milestones was limited to establishing conditions for the financial measures adopted under the RRF. While the milestones might encourage changes in Polish legislation, the impact on the legal situation of the judges would be incidental, not direct (see para. 91). Thus, the General Court rejected the actions for lack of ‘direct’ concern. It equally turned down the invitation to assess the situation of general-good associations differently, reiterating that the criteria under Article 263 TFEU cannot be relaxed without de facto amending the EU Treaties.
Notably, the General Court highlighted, in the penultimate paragraph of the Order, that not only was Poland bound to observe the EU Treaties and the case law of the EU Courts, but that also the privileged applicants, namely the other Member States and institutions, could challenge such a Council implementing decision. Further, it noted that the Commission, as the ‘guardian of the Treaties’, must carry out the continuous assessment of Poland’s compliance with the milestones under Article 24 of the RRF Regulation, and must ensure Member States’ compliance with EU law more generally. By contrast, the Council’s budget conditionality decision was not the individual judges’ or their associations’ business.
The General-Good Argument on Appeal: Judges as EU law’s ‘Climate Seniors’?
On appeal, the judge associations’ most salient argument relates to the ECtHR’s KlimaSeniorinnen judgment, in which specific criteria were crafted regarding the locus standi of associations engaged in climate-change litigation. Under these criteria, such an association has standing independently of the standing rights of those it represents. If the KlimaSeniorinnen criteria were transposed mutatis mutandis to the present appeals, the appellants could have standing simply because they are legally established, defend judicial independence in accordance with their statutory mandate, and are ‘genuinely qualified and representative’ to act on behalf of judges affected by adverse effects to the rule of law (see KlimaSeniorinnen, para 502).
However, it is clear that the procedural law of standing under the EU Treaties and the ECHR is different, and KlimaSeniorinnen clearly concerns climate-change litigation. That said, the appeals provide an opportunity for the Court of Justice to reflect on whether similar considerations exist, in the context of Article 263(4) TFEU, for the preservation of judicial independence as those which prompted the ECtHR to devise particular standing rules – indeed a limited carve-out to the ban on action popularis – for associations in the climate-change context.
The General Court has now implied (see comments on the Order’s penultimate paragraph above) that, in the present situation, there are multiple privileged applicants to oversee judicial independence in Europe, which in part speaks against extending the grounds of standing. The Court of Justice has in recent years been receptive to broader standing rights in the context of specific sectoral rules, such as the Aarhus Convention (regarding environmental organisations, see eg C-664/15, para 47). However, as regards Article 263(4) TFEU, it has remained skeptical of broadening the criteria. No standing rights for acting specifically in the interest of judicial independence exist, for now, in EU legislation.
Conclusion: New EU Financial Governance on Trial
The judge associations may face an uphill battle. Nevertheless, the appeals are worth watching closely. They not only invite the Court of Justice to consider under what conditions private parties are able to participate in rule-of-law litigation but also to clarify whether budget conditionality measures can be contested. On this latter point, too, the appeals may prove significant.
Indeed, the EU’s new forms of financial governance, such as the RRF, require of Member States increasingly substantive policy outcomes. Going forward, the question of who can contest such governance via financial conditionality, personally or through their association, may yet come to have considerable relevance.
