Martina Coli

On 5 June 2023, the Court of Justice delivered the judgment related to the fourth – but not last – infringement procedure against Poland on rule of law matters. In Commission v Poland (C-204/21), the Court was called to assess a series of amendments to the laws on the judiciary adopted by Poland in late 2019. These reforms are better known as the muzzle law because they introduced, inter alia,  new disciplinary offences and sanctions for judges and rules to prevent them – with the exception of two disciplinary chambers created within the Supreme Court – from questioning the legitimacy and independence of any national court. At issue were thus the jurisdiction of the two chambers – the Disciplinary Chamber and the Extraordinary Review and Public Affairs Chamber (Extraordinary Chamber) –, as well as other judicial measures of dubious compliance with EU law. The Commission raised five complaints, challenging the compatibility of the muzzle law with the requirements of judicial independence – stemming from Article 19(1) TEU, second subparagraph, and Article 47 of the EU Charter of Fundamental Rights (CFR) –, the principle of primacy, Article 267 TFEU, and the rights to private life and protection of personal data granted by Articles 7 and 8(1) CFR and the General Data Protection Regulation 2016/679 (GDPR).
The practical implications of the case will probably be limited, especially for what concerns the Disciplinary Chamber. The judgment came rather late in respect to the launch of the infringement procedure in April 2020, and, in the meantime, things have changed in Poland. Notably, the Union blocked Polish funds under the Recovery and Resilience facility and made  their release conditional on compliance with a series of milestones concerning judicial independence. To (partially) meet those requests, Poland dismissed the Disciplinary Chamber, and substituted it with another, but not less controversial, Chamber of “Professional Liability”. The judgment is nonetheless still relevant in many respects for the enforcement of the rule of law in the European Union, and was rightly considered both compelling and comprehensive in the first reaction of the doctrine.
Yet, a complete analysis of the legal issues touched upon by the 389 paragraphs of the judgment would exceed the limits of this blogpost. Therefore, after presenting the essential findings of the Court, this post focuses on two issues. First, it discusses the role of the context of Polish rule of law crisis in supporting the reasoning of the Court. Then, it highlights three interesting elements of the Court’s legal reasoning that might well be relevant for the future of the enforcement of the rule of law.

1. The unsurprising outcome of the judgment: Poland’s legal defeat
The outcome of the judgment was largely expected by those following the issue closely. This in light of not only the Opinion of Advocate General Collins, who sided with the Commission, but also two previous orders for interim measures of the Court. Indeed, while the Court is not compelled to follow the opinion of its Advocates General, it generally looks for coherence within its caselaw. On 14 July 2021, the Vice-President of the Court ordered Poland to suspend both the application of the muzzle law and the effects of the decisions of the Disciplinary Chamber authorizing criminal proceedings against judges. A second order of 27 October 2021 introduced a periodic penalty payment of 1 million euros per day until Poland’s compliance with the order of the Vice-President of the Court. On 21 April 2023, that amount was the reduced to 500.000 euros per day.
In the judgment in question, the Court upheld all complaints of the Commission, except for the part of the first complaint related to Article 267 TFEU, which was found inadmissible because the Commission raised it only at the stage of the reply. The Court dealt first with the fourth complaint, which related to the jurisdiction of the Disciplinary Chamber on cases concerning, first, the status of judges and the performance of their office, including the authorization to initiate criminal proceedings and, second, the employment and social security law of Supreme Court judges. That complaint was quickly decided on the basis of the previous judgment in Commission v Poland III (C-791/19) where that Chamber was found not to be independent. Indeed, Article 19(1) TEU requires that rules on the jurisdiction of the Disciplinary Chamber are assessed by an independent body.
The Court subsequently discussed the third complaint. It started by saying that Article 19(1) TEU and Article 47 CFR would be infringed “ipso facto” if the compliance of a national court with the obligation to give effect to those provisions constituted a disciplinary offence (§132). Then, it found incompatible with Articles 19(1) TEU and 47 CFR the classification as disciplinary offences of “acts or omissions of such a kind as to prevent or seriously undermine the functioning of a judicial authority” and “acts calling into question the existence of the employment relationship of a judge, the effectiveness of the appointment of a judge or the legitimacy of a constitutional organ of the Republic of Poland” (§134). Indeed, the broad and imprecise wording of those provisions, combined with the context of the Polish rule of law crisis (on which see below), resulted in the risk that they “may be used in order to prevent the national courts concerned from making certain findings or assessments, which, however, are required by the provisions of the second subparagraph of Article 19(1) TEU and Article 47 of the Charter, and, accordingly, to influence the judicial decisions expected from those courts, thus undermining the independence of the judges of which those courts are composed” (§152). Since those national provisions also risked that such disciplinary offences could apply as sanctions for Polish judges who made references for a preliminary ruling, they also infringed Article 267 TFEU.
Discussing then the first complaint, the Court considered that the impossibility for national judges to call into question the legitimacy of domestic courts and the constitutional organs and to “establish or assess the lawfulness of the appointment of a judge or of the power to carry out tasks in relation to the administration of justice that derives from that appointment” was incompatible with Articles 19(1) TEU and 47 CFR. Moreover, the Court found incompatible with those provisions, and with the primacy of EU law, the fact that national provisions on the allocation of cases and designation of court formations “cannot be a basis for determining … that a court is improperly composed or that a person not authorised or competent to give judgment forms part of that court” (§220).
As regards the second complaint, the Court considered that the exclusive jurisdiction of the Extraordinary Chamber on several matters concerning the jurisdiction and independence of Polish judges had the effect of preventing the other chambers of the Supreme Court from ruling on such questions of law and from referring preliminary questions to the Court of Justice. In particular, the exclusive jurisdiction of the Extraordinary Chamber included matters relating to the recusal of judges and the designation of the competent court to hear judicial independence cases, matters of judicial independence which arise before the Supreme Court, and appeals against rulings or final judgments considered unlawful on the ground of the status of judge who ruled in the case concerned. Thus, the Court found it incompatible with Articles 19(1) TEU, 267 TFEU and 47 CFR, and with the primacy of EU law. Instead, it did not have the chance to discuss the independence of the Extraordinary Chamber as such, since the Commission raised that point too late in the proceeding, that is, at the stage of the reply.
Finally, the fifth complaint related to the obligation compelling Polish judges to make a written declaration concerning their membership of associations, non-profit foundations, and political parties, as well as the positions held therein, and requiring the publication of such information in the “Public Information Bulletin”. The Court found that obligation unlawful under Article 6(1) and 6(3) GDPR, and also infringing the prohibition of processing sensitive data under Article 9(1) GDPR, as well as the right to respect for private life and the right to protection of personal data under Articles 7 and Article 8(1) CFR. Indeed, in a context of “extended disciplinary system” such as the Polish one, it risks “to expose the judges concerned to risks of undue stigmatisation” (§377).

2. The role of context
The case is part of a general saga, that of the EU fight for the rule of law in Poland. More specifically, it adds a new chapter to previous cases that already dealt with the use of disciplinary regimes and other means to prevent Polish judges from assessing the independence of their peers. The decision is indeed to be read together with the Court’s preliminary ruling A.K. and Others and the judgment on the previous infringement procedure against Poland in C-791/19. To complete the picture, one must add the follow up decision of the Polish Supreme Court after A.K. and Others and the several preliminary requests from Polish courts.
In the 2019 preliminary ruling in A.K. and Others (C‑585/18), the Court of Justice provided guidance, in light of the appearance of independence, on how national courts shall assess compliance with Article 47 CFR of a national disciplinary chamber and a council of the judiciary such as the Polish ones. Then, in July 2022, the Court directly found the Polish Disciplinary Chamber not independent in Commission v Poland III (C-791/19). Yet, in the meantime, three sections of the Polish Supreme Court followed the guidance provided by the Court in A.K. and Others and ruled that the Disciplinary Chamber was not an independent court under Article 47 CFR. Right after, several preliminary requests of Polish courts started to reach the Court of Justice. They concerned the interpretation of the EU principle of judicial independence in relation to various reforms of Polish judiciary and gave rise to judgments such as W.Ż. (C‑487/19) and Prokuratura Rejonowa (C‑748/19 to C‑754/19). The muzzle law was enacted as a response to this challenge: the transformation of the preliminary ruling procedure into a bottom-up instrument to enforce the rule of law in Poland. The purpose of the law was indeed to prevent Polish judges from applying the EU requirements of judicial independence as defined in A.K. and Others and subsequent judgments of the Court of Justice. Remarkably – and it is no coincidence –, the same context provided the background of the constitutional reference made by the Polish government that led to the (in)famous judgment of the Polish Constitutional Court of October 2021, which rejected the principle of primacy of EU law.
The context outlined above does not only add flavor to the story. It had an important role in the Court’s legal reasoning in the judgment of 5 June 2023. In relation to all complaints but the fourth (and easiest) one, the Court took into account the “the particular circumstances and context” in which the muzzle law was adopted in order to clarify its scope (§139). In particular, to reach its conclusions on the first and third complaints, the Court noticed that the muzzle law was adopted as a matter of urgency and its provision did “echo a series of questions raised by various Polish courts as regards compliance with EU law and, more specifically, with the requirements arising from the second subparagraph of Article 19(1) TEU and Article 47 of the Charter of various recent legislative amendments affecting the organisation of justice in Poland” (§140). This reference to the context was essential to unveil the scope pursued by the national measure: preventing national courts that referred preliminary requests to the Court of Justice, or called to rule on similar cases, to do so in the future by means of disciplinary liability.
As regards the second complaint, the Court considered the context in which the exclusive jurisdiction to verify compliance with certain essential requirements of the principle of judicial independence was conferred on the Extraordinary Chamber. Such a context was characterized by the prohibitions and disciplinary offences imposed on judges (§285), as well as of increased “attempts by the Polish authorities to discourage or prevent national courts from referring questions concerning interpretation to the Court of Justice for a preliminary ruling regarding the second subparagraph of Article 19(1) TEU and Article 47 of the Charter” (§291). Against this background, the exclusive jurisdiction of the Extraordinary Chamber reveals its true nature, that of “weakening even further” the effective review of the respect of the fundamental right to effective judicial protection (§286).

3. Highlights from the Court’s reasoning
At least three points of the Court’s reasoning deserve close attention. The first emerged in the discussion of the Court’s own jurisdiction on the case, which was challenged by Poland. The latter claimed that, in light of the jurisprudence of the Polish Constitutional Court, “upholding the complaints made by the Commission would amount, for the Court, to exceeding its own powers and those of the European Union”, thus undermining, inter alia, the Polish national identity as protected by Article 4(2) TEU (§61). Already in the conditionality judgments (C-156/21 and C-157/21), the Court of Justice shed light on the relationship between Articles 2 and 4(2) TEU. It made clear that the identity clause in Article 4(2) TEU could not be abused to avoid respect for EU values under Article 2 TEU. This time, however, the Court decided to respond to Poland’s claim in even plainer terms. Indeed, it stated that “there is no ground for maintaining” that the requirements arising from Article 2 TEU and Article 19(1) TEU “are capable of affecting the national identity of a Member State, within the meaning of Article 4(2) TEU” (§72, emphasis added). In the same paragraph, the Court also provided some guidance on how to interpret Article 4(2) TEU. That provision “must be read taking into account the provisions, of the same rank, enshrined in Article 2 and the second subparagraph of Article 19(1) TEU”. As a result, the identity clause “cannot exempt Member States from the obligation to comply with the requirements arising from those provisions”. The Court also linked the above with the principle of non-regression introduced in the Repubblika judgment (C‑896/19). Indeed, it specified that, in choosing the constitutional model that fits its national identity, each Member State shall not only respect the obligations stemming from Article 2 TEU but also ensure that “in the light of the value of the rule of law, any regression of their laws on the organisation of justice is prevented” (§74). It thus seems that the Court took another small step towards developing (a kind of) “identity doctrine” in the context of rule of law enforcement.
Second, the Court established some red lines that further clarified the content of the obligations stemming from the EU principle of judicial independence. It made crystal clear that broad and imprecise wording of provisions establishing disciplinary offences are problematic in terms of EU law. The same applies to the provisions prohibiting national courts from assessing the legitimacy of courts and tribunals. Indeed, such wording may lead to several judicial acts or conducts being classified as disciplinary or caught by the prohibitions. These may include situations in which “judges examine and rule on whether they themselves or the court in which they sit, or other judges or courts to which they belong satisfy the requirements arising from the provisions of the second subparagraph of Article 19(1) TEU and Article 47 of the Charter” (§137). Moreover, in relation to the second complaint, the Court upheld the Commission’s suggestion that the questions relating to judicial independence are horizontal issues. This means that any national court called to apply EU law must examine whether it constitutes an independent and impartial tribunal previously established by law in the light of the requirements stemming from Articles 19(1) TEU and 47 CFR, and must be able to make a reference for a preliminary ruling on that matter. Thus, it is not permissible that such a review falls “in a general and indiscriminate manner, within the jurisdiction of a single national body” (§278).
Finally, contrary to its previous judgments related to rule of law infringement procedures against Poland, the Court acknowledged, in relation to the first, second and third complaints, the violation of Article 19(1) TEU “read in conjunction with Article 47 of the Charter”. Yet, the Court omitted to make any considerations over the applicability of the Charter under its Article 51(1) in relation to those complaints. So far, the Court had consistently excluded that Article 19(1) TEU – whose scope of application is broader than that of the Charter – can alone trigger the application of the Charter, and, in particular, Article 47 (see e.g. AB and Others, C-824/18). Yet, by shielding under the vague formula that, in interpreting Article 19(1) TEU, Article 47 CFR must be “duly taken into consideration”, it had established that the two provisions have an equivalent content. In particular, in the previous infringement procedure in C-791/19, the Court interpreted Article 19(1) TEU as including the fundamental right under Article 47 CFR. The language of the judgment of 5 June 2023 seems instead to suggest a step towards another direction, that is, the possibility that Article 19(1) TEU, with its broad scope of application, fully triggers the application of (at least) Article 47 CFR. Yet, the Court failed (once again) to clarify the relationship between the Article 19(1) TEU and Article 47 CFR in light of their different scopes of application, leaving us with more questions than answers. But how long can the two provisions be applied while avoiding such a clarification? Once again, the ball is in the court of the Court.

Once again, Poland is on the spot for what concerns problems with the rule of law. In two judgements delivered between summer and autumn 2021 (the last one, on 7 October), the Constitutional Court of Poland – which is by now fully composed by loyalists to the government, some of them also unlawfully appointed – rejected the principle of primacy of EU law. With this move, Warsaw opted for open and unprecedented confrontation with the founding principles of the EU legal order, bringing the country into an unknown and disorienting legal dimension.

Overview of the most relevant facts
In the judgment of 7 October, the Polish Constitutional Court decided to blatantly oppose the primacy of EU Law. The action over the constitutionality of the EU Treaty was introduced by Polish Prime Minister Morawiecki in March and came after the judgment of the Court of Justice in A.B. and others, which found that EU law precludes measures such as the Polish provisions impeding preliminary references from Polish judges and governing judicial appointment to the Supreme Court. The Constitutional Court was supposed to deliver its judgment over the summer, but the verdict was delayed several times.
The judgment was ultimately issued by a full panel of judges and adopted by majority vote, with two dissenting opinions. It entered into force only five days later, as the publication by the government in the official journal was required for that purpose. The Constitutional Court found Articles 1, 4(3) and 19(1) TEU incompatible with the Polish constitution – notably, Article 8(1), whereby “the Constitution shall be the supreme law of the Republic of Poland” – insofar as they require national courts to give precedence to EU law over the Polish Constitution and to disregard national provisions, including the constitutional ones, in case of a contrast with EU law. Moreover, Articles 2 and 19(1) TEU were found inconsistent with the Polish Constitution insofar as they allow Polish judges to assess the independence of their own peers. In drawing such conclusions, the Constitutional Court apparently performed each sort of acrobatic legal reasoning, ignoring some important constitutional provisions. The flaws of the judgment are confirmed by the concerns expressed by the former judges of the Constitutional Court, who consider that the judgment falls outside the competences of the tribunal and it is not consistent with the constitution. In a nutshell, the Constitutional Court rejected the common standards of judicial independence elaborated by the Court of Justice with the view of ensuring effective judicial protection in the EU legal order.
The Polish Constitutional Court had already rejected the primacy of EU law in a judgment delivered on 14 July 2021. There, it found Article 4(3) TEU and Article 279 TFEU incompatible with Poland’s Constitution, insofar as they allow the Court of Justice to impose, via interim measures, obligations on Poland concerning the organization of the judiciary. That decision was issued by five judges only, one of which voted against. It was published by the government in the official journal on 16 July, and thus entered immediately in force. The judgment was a direct reaction against the decisions – and the related interim measures – through which the Court of Justice found that the Polish disciplinary chambers were in breach of Article 19(1) TEU. Notably, in A.K. and others (C‑585/18, C‑624/18 e C‑625/18), the Luxembourg court offered guidance to the referring national court – the Labor Chamber of the Supreme Court – on how to evaluate the independence of a disciplinary chamber and a national judicial council under Article 47 of the EU Charter, hinting that the requirement was not satisfied in the case at issue. Subsequently, the judgement in Commission v Poland (C-791/19) of 15 July 2021 acknowledged several violations of Article 19(1) TEU by Poland connected to the institution, powers and activities of the disciplinary chamber. It was preceded by an order for interim measures suspending the provisions giving jurisdiction to the disciplinary chamber to rule in disciplinary cases (Order in case C-791/19 R of  8 April 2020). The action that led to the July judgment of the Constitutional Court was filled by the judges of the disciplinary chamber the day after that order of the Court of Justice. It was thus a clear act of rebellion against the first decision of the Court of Justice to suspend the activities of the disciplinary chamber. At the same time, it was also a proof that the case law of the Luxembourg Court added teeth to the EU’s reaction against rule of law backsliding in Poland. Finally, on the same day of the July judgment of the Constitutional Court of Poland, the Vice-President of the Court of Justice issued another order for interim measures, this time requesting Poland to suspend national provisions prohibiting domestic courts to check the legality and legitimacy of judicial appointment and giving new powers to the disciplinary chamber, such as the authorization to open criminal proceedings against judges (Order in case C-204/21 R of 14 July 2021).
While the Constitutional Court’s July judgment only concerned interim measures, the decision of October is significantly broader and represents an open challenge to the principles of the EU legal order. However, the message from the Constitutional Court is the same: there is no room in the Polish Constitution for judicial independence as framed in the case law of the Court of Justice and the primacy of EU law can thus not be accepted.

Which consequences for the EU legal order?
It is not the first time that a constitutional court does not share the view of the Court of Justice on the foundational principle of the primacy of EU law. Divergencies in this respect are as old as the principle itself. The history of European integration teaches that judicial dialogue and confrontation between the Court of Justice and national courts, in primis the constitutional ones, is essential for the thorough application and the uniform interpretation of EU law. A “state of creative disagreement” may well perform a positive function over the definition of the EU legal order and the protection of fundamental rights, also when strongly worded.
It might be tempting to compare the October judgment of the Polish Constitutional Court with the PSPP decision of the German Federal Constitutional Court (BVerfG) of 5 May 2020. However, the two judgments are significantly different in both spirit and magnitude. First – it cannot be stressed enough –, the Polish Constitutional Court is no longer an independent tribunal established by law. It is a captured court and a “government-enabler”. Its decisions can no longer be considered the result of a conflict of legal orders and different interpretation of the boundaries of EU law. Rather, they are statements that confirm the submission of the law to politics in Poland, blatantly contradicting the principle of the separation of powers. For these reasons, there is no need to wait for the written reasons of the judgment before expressing concern. Second, the decision of the Polish Constitutional Court is far more drastic and “stubborn” than the PSPP judgment, as it openly questions the primacy of EU law and deems it incompatible with the Polish constitution. Moreover – unlike the BVerfG –, the Polish Constitutional Court did not bother to send a preliminary request to the Court of Justice in order to avoid direct conflict. This confirms the non-cooperative behavior of Poland’s top court, as if it were not part of the EU legal system. Finally, there is also a substantive difference: the judgment of the BVerfG concerned monetary policy and not the EU founding values. It related to a specific ECB purchase programs and was not directed towards every future decisions of the Court of Justice. With its judgment, the Polish Constitutional Court is labelling as incompatible with the Polish constitution the independence of the judiciary as part of the EU notion of the rule of law and, ultimately, the separation of powers. At the same time, since the action of Prime Minister also built on the PSPP decision, fears expressed over the pretextual use of that judgment and the lack of foresight of the BVerfG seemingly come true.
As regards the consequences on the EU legal order, formally Poland is still bound to apply EU law and to implement the rulings of the Court of Justice. Yet, the judgment of 7 October puts into question the correct application of EU law in Poland, especially as regards the requirements of judicial independence and, more generally, the imperative of effective judicial protection of EU-derived rights. Polish judges will feel even more pressure to comply with Polish law rather than with the judgments of the Court of Justice. Moreover, disciplinary proceedings against judges that uphold EU law are likely to increase now that the government can count on the rulings of the Constitutional Court in targeting the “rebellious judges”. In the long term, we might well experience problems for mutual trust and mutual recognition. How can other European courts trust the Polish tribunals now that their Constitutional Court no longer recognizes the primacy of EU law? The implementation of EU instruments of judicial cooperation becomes more blurred. Besides, new preliminary requests are probably on the horizon. National courts might wonder – for instance – how much weight should they attach to the judgment of the Polish Constitutional Court when deciding over the surrender of a person to Poland under the European Arrest Warrant. Will the Court of Justice maintain its two-tier test developed in LM (C-261/18 PPU) and confirmed in Openbaar Ministerie (C-354/20 PPU) or will the new situation induce a change? For sure, the Luxembourg Court will not make any concession over the primacy of EU law or the principle of judicial independence, which is currently the most prominent dimension of the EU concept of the rule of law. Finally, also the status of any Polish court as a “court or tribunal” for the purposes of Article 267 TFEU is called into question. Will they still be able to send preliminary references to the Court of Justice? At the same time, taking this option away from Polish judges – who are also relying on the preliminary ruling procedure to seek the help of the Court of Justice in reacting to the attacks to judicial independence – would further weaken judicial protection of EU rights. Undoubtedly, those are quite difficult knots to untangle.
In a certain way, we can talk about a “legal polexit” in the sense that Poland is abandoning the EU legal space with the above-mentioned consequences for mutual trust. However, much more difficult is arguing that the judgment is a first step towards an actual polexit, that is, an indirect triggering of Article 50 TEU or, in any case, that it leads to a situation where the Treaties no longer apply to Poland. The judgment of the Constitutional court, even if published by the government, cannot be considered a notification of withdrawal. As recognized by Steinbeis, the future of the memberships of Poland in the EU is a political question and not a legal one. Article 50 TEU requires a Member State to expressly decide for withdrawing according to its constitutional requirements and then notify the European Council. Expulsion is not possible under EU Law, and the Union would violate its own rules (and thus the rule of law) by circumventing this problem. Moreover, given the profound impact of withdrawal “on the rights of all Union citizens”, that action would betray the Polish population who strongly supports the Union. Yet, the fact that the Union is not fully completed in terms of use of coercion of the Member States, does not mean that there are no instruments at its disposal that might be used to take up the challenge of Warsaw.

The way forward for the EU
On the very same 7 October, the Commission issued a statement in response to the judgment of the Polish Constitutional Court where it reaffirmed the principle of primacy and the binding nature of Court of Justice’s rulings and expressed its readiness to rely on “its powers under the Treaties to safeguard the uniform application and integrity of Union law”. Since the judgment is now published and, thus, in force, the Commission is called to live up to expectations. It is crucial that the declarations of the communiqué do not become a dead letter.
It is fair to point out that recently the Commission has become more intransigent towards Warsaw. As regards the July judgment on interim measures, it handed a twofold response. Firstly, it asked the Court of Justice to impose financial penalties on Poland until the order of 14 July 2021 was complied with. It also started an Article 260(2) TFEU procedure for non-compliance with the judgment in Commission v Poland (C-791/19), which, if successful, will lead to further financial sanctions. Second, the Commission blocked the procedure for releasing the 57 billion euros that Poland should receive under the EU recovery funds. Indeed, the national recovery and resilience plan of Poland – as well as that of Hungary – has not yet been approved because it does not effectively address the country specific recommendation, which also includes safeguarding judicial independence.
The Commission should follow this strategy also in response to the October judgment of the Polish Constitutional Court. An infringement procedure should be launched as soon as possible, and the Commission should be ready to ask for interim measures accompanied by financial penalties and the expedite procedure. In case of non-compliance with the judgment of the Court of Justice, the Commission should also be swift in enforcing it via Article 260(2) TFEU. Likewise, financing under the EU recovery funds should continue to be blocked until Poland takes serious measures to solve the problem. Moreover, the Union should make use of the powers it has under the conditionality regulation 2020/2092 to suspend EU funds against Poland. The European Council conclusions of 10-11 December 2020 featured a controversial political compromise between the Member States that guaranteed Hungary and Poland that a procedure under the conditionality mechanism would be launched only after the Court of Justice delivered its judgment in the pending action of annulment against regulation 2020/2092. However, given that the compromise is likely in breach of EU law, the Commission should simply ignore it and trigger the mechanism against Poland. The activation of Article 7(2) TEU – by either the Commission or one third of the Member States – should also be considered. Even though reaching a unanimous vote in the European Council is almost impossible in the current political scenario, it is time to send a clear message to Warsaw and compel it to respect the rules of the game. Hopefully, the decisions of the Constitutional Court will be also a stimulus for breaking the deadlock in the Council as regards the Article 7(1) TEU procedure against Poland, which was launched back in December 2017.
Plausibly, the Polish government will try to use the enforcement of the July and October judgments as trade good in the bargaining with the Commission over the unblocking of the EU recovery funds and in order to get other reassurances on the next actions by the EU in defense of the rule of law. The Commission must not take the bait. As in the past, further negotiations would lead only to the procrastination of the activation of the enforcement instruments at its disposal.
Clearly, the remedies mentioned above involve financial losses for Poland and, therefore, for its citizens. It is unfortunate that Polish citizens – who are widely pro-Europeans, as shown by the demonstrations in the aftermath of the judgment – are paying for the mistakes of their government and Constitutional Court. At present, Poland is already inflicted a penalty of 500 000 euros per day for failing to comply with the order of the Vice-President of the Court of Justice to cease activities at Turów mine (Order in case C-121/21 R). How much money of the Polish taxpayers is the government willing to waste?
Finally, an answer by the governments of EU Member States is also needed. The French and German ministers of foreign affairs issued a joint statement calling for respecting EU values and rules right after the judgment. Yet, that is not enough. It is time for the Member States to exercise real peer pressure against violations of the rule of law by Poland. That could first of all include the issuing of diplomatic sanctions. Moreover, as suggested by McCrea, in the context of EU decision making Member States “can ensure Poland pays a price every time an issue it cares about is up for discussion”. Ultimately, they are empowered to initiate both infringement actions under Article 259 TFEU and the Article 7(2) procedure. It is well known that Member States are generally reluctant to start direct confrontations with one of their peers. However, the threat to the unity of the EU legal order posed by Poland requires a response of equal intensity.

Once again, after the much-discussed Ástráðsson v. Iceland case, the European Court of Human Rights (ECtHR) attracted the spotlight on it by handing out a ruling on judicial independence. In Xero Flor w Polsce sp. z o.o. v. Poland (hereafter, Xero Flor) the first section of the Strasbourg Court unanimously found that the Republic of Poland breached Article 6(1) of the European Convention of Human Rights (ECHR) as regards both the right to a fair hearing and the right to a tribunal established by law.
The case originated from a civil action by the turf-producing company Xero Flor against the State Treasury for the damages caused to the applicant’s cultivation by the animals of a game breeding area managed by the State Forests Holding. The applicant company asked compensation of such damages before the Zielona Góra Regional Court, which it requested also to refer to the Constitutional Court three questions concerning the compatibility with the Polish Constitution of the domestic provisions applicable to the case (notably, the Haunting Act and the Ordinance of the Minister of Environment on the assessment procedures and payment of compensation in respect of damage to crops). The national court decided to award only partial compensation to Xero Flor and considered that there was no need to submit any questions to the Constitutional Court. The proceedings continued before the Court of Appeal and the Supreme Court, which equally disagreed with the applicant’s request for further compensation and the constitutional arguments raised. Xero Flor then lodged a constitutional complaint before the Constitutional Court, which, by a majority of three to two judges, decided to discontinue the proceedings, finding that “the complainant had challenged how [the relevant] provisions had been applied and had failed to demonstrate how their content had infringed its constitutional rights and freedoms” (para. 100).
At this point, the applicant’s case intertwines with the political capture of the Polish Constitutional Court and the events leading to the unlawful election of three judges on 2 December 2015. The affair is familiar to everyone who follows rule of law backsliding in Poland closely (see Koncewicz and Sadurski for in-depth analyses). In October 2015, the seventh-term Sejm (the Polish Parliament) elected five judges to the Constitutional Court, replacing three judges whose posts were due to expire on 6 November 2015 and two judges whose posts were due to expire in early December of the same year. Only the former election was fully in compliance with the Constitution, which requires the Parliament to replace only those Constitutional Court judges whose mandate expires during the Sejm’s term of office (Article 194(1) of the Polish Constitution). This was confirmed by the Constitutional Court in the judgment of 3 December 2015.
A few days later, the Law and Justice Party (PiS) won the elections and, on 25 October 2015, the eight-term Sejm was elected. That Parliament amended the Act on the Constitutional Court requiring its judges to take oath before the President of the Republic within thirty days of election in order to officially start the term of office. Yet, the President refused to take the oath of the judges appointed by the seventh-term Sejm (the so-called “October judges”). The eighth-term Sejm also adopted resolutions depriving of legal effects the October election, thus not only the appointment of the two judges whose terms were due to expire in December but also that of the other three judges that had been lawfully elected. The newly elected five judges (so-called “December judges”) immediately took oath before the President of the Republic. Such reforms and elections were deemed unconstitutional by the judgment of the Constitutional Court of 9 December 2015. In the meantime, the Parliament kept electing new judges whenever the old ones retired for the natural end of their mandate.
End of the story? Not really. In the following months, other reforms further altered the functioning of the Constitutional Court, for instance by requiring judges who took the oath before the President of the Republic to be included in adjudicating benches and assigned cases by the acting President of the Constitutional Court. Those amendments were ruled unconstitutional by the Constitutional Court’s rulings of March and August 2016. However, the government refused to publish those judgements.
On 19 December 2016, the term of office of the President of the Constitutional Court ended and the President of the Republic appointed one of the two lawfully elected December judges as the acting President. The latter admitted the other three, unlawfully elected December judges to the bench. With that episode, the full capture of the Court was achieved. In the following years, with the retirement of other judges, the PiS gradually filled all posts at the Constitutional Court with loyal judges (see Sadurski’s book for further analysis).
This escalation attracted criticisms by the European and international institutions, being perceived as a first systemic threat to the rule of law in Poland (see the Opinion of the Venice Commission of 14-15 October 2016 and the European Parliament resolution of 13 April 2016).
However, natural and legal persons bear the brunt as always in this kind of situations. This became clear with the Constitutional Court’s judgment declaring the unconstitutionality of abortion for severe and irreversible fetal anomaly.
The case of Xero Flor is another, although different, paradigmatic example. One of the three “December judges” unlawfully elected – judge M.M.– sat in the five-judges panel of the Constitutional Court that dismissed the case of Xero Flor. Therefore, the latter complained before the Strasbourg Court a breach of its right to a tribunal established by law under Article 6(1) ECHR. The ECtHR sided with the applicant. It found Article 6(1) ECHR applicable to the proceedings before the Constitutional Court because the outcome was decisive for determining the applicant’s rights. Indeed, if the Constitutional Court had found the Ordinance to be in breach of the applicant’s constitutional right of property, the civil proceedings could have been reopened and the Ordonnance not applied (para. 208). Then, the Strasbourg Court relied on the three-step threshold test developed in the Ástráðsson judgment (see the insightful analysis of judge Spano and the relative discussion on this blog) and found the appointment of three “December judges” in violation of the right to a tribunal established by law, as guaranteed under Article 6(1) of the Convention. First, by relying on the judgments of the (not-yet-captured) Constitutional Court of 2015 and 2016, the ECtHR found a “manifest breach of the domestic law” in the election procedure of the three December judges. Remarkably, the ECtHR made a distinction between those judgments of the Constitutional Court and that of October 2017 (i.e., post-capture), which disregarded the previous rulings “without relying on any substantive grounds” and therefore “carries little, if any, weight in the assessment of the validity of the election of Constitutional Court judges on 2 December 2015” (paras. 271-273). Second, the ECtHR considered that the breach pertained to “a fundamental rule of the election procedure”, which was enshrined in Article 194(1) of the Constitution and confirmed by the case-law of the Constitutional Court (para. 277). The situation was further worsened by the persistent efforts of the Parliament, the Government, and the President of the Republic to disregard and refuse to publish the Constitutional Court’s judgments and force admission to the bench of the three “December judges.” In the third step of the Ástráðsson test – namely, the review and remedy by national courts of the breach – the Court limited itself to acknowledging that the Government recognized “that there was no procedure under Polish law whereby the applicant company could challenge the alleged defects in the election process for judges of the Constitutional Court” (para. 288).
The applicant was also successful in its other claim of breach of Article 6(1) ECHR, namely the right to a fair hearing, as the national courts failed to give proper reasons for not referring to the Constitutional Court the preliminary question concerning the constitutionality of the Ordonnance that limited the applicant’s right to compensation (paras. 170-173).
However, the Court’s finding that the right to a tribunal established by law was violated is more relevant for the safeguard of the rule of law in Europe, for a threefold reason.
First, it is the first time that a European court declares unlawful the Polish reforms capturing the Constitutional Court. It is also the first time that the composition of an EU Member State’s constitutional tribunal is found illegal. So far, the Court of Justice of the EU (CJEU) has never had the opportunity to rule on the matter. The European Commission has criticized the measures in its recommendations under the Rule of law Framework and in the Reasoned Proposal under Article 7(1) TEU, but none of them led to sanctions or to direct infringement actions (see for an assessment of the EU’s response: Pech, Wachowiec, Mazur). Hopefully, this judgment will be a reference point for the European Commission’s present and future initiatives in defense of the rule of law in Poland, such as infringement procedures under article 258 TFEU, the Rule of law report 2021 and the rule of law conditionality mechanism. Moreover, it could also be relied on by national authorities examining rule of law deficiencies in Poland for the purpose of the executions of EU instruments of judicial cooperation, such as the European arrest warrant in the context of the two-step test developed by CJEU in LM (C-261/18 PPU).
Second, the Strasbourg Court applied to Poland the three-step threshold test developed in Ástráðsson to assess whether problems in a judicial appointment procedure entailed a violation of the right to a tribunal established by law. That test was thus confirmed as the relevant Convention standard for assessing irregularities in judicial appointment procedures. Since Article 47 of the EU Charter corresponds to Article 6(1) ECHR, we should expect the Court of Justice to build upon this Strasbourg case-law. In its judgment in Simpson (C‑542/18 RX-II and C‑543/18 RX-II), the CJEU already took into account the case law of the ECtHR on the right to a tribunal established by law, including the first Ástráðsson judgement (the one delivered by the ECtHR’s second section in 2019). However, in Repubblika (C-896/19) the CJEU addresses an issue of judicial appointment in terms of judicial independence and thus missed an opportunity to frame the case as one concerning the right to a tribunal established by law. Yet, the test of independence and establishment by law are different, even though closely interrelated. The recent opinions of Advocate Generals Bobek and Tanchev valued the Ástráðsson judgment and the relative test. Hence, it will be interesting to see whether and to what extent the Court of Justice will rely on Ástráðsson and Xero Flor in the future.
Finally, this judgment may be only the first in a long series. Indeed, several cases concerning reforms to the Polish judiciary are currently pending before the ECtHR, and after this judgment we can expect even more new ones may be brought. The ECtHR will likely become another major judicial actor in the fight against rule of law backsliding in Europe. This confirms the relevance of the judicial route in that fight – at least as long as the political one is precluded by the lack of will –, with all the consequences, good and bad, that may derive from it.
As regards the direct consequences of the judgement, there is not much room for celebration. With or without the three “December judges”, the Polish Constitutional Court is already captured, and the nomination procedure is fully in the hand of the parliamentary majority. It is true that the ECtHR compelled Poland to pay the applicant the reimbursement of cost and expenses. Poland is also required to take general measures to remedy the violation found by the Court, which should logically include precluding adjudication, of not only judge M.M. but also the other two judges unlawfully elected to Constitutional Court in December 2015. Yet, the Polish government immediately showed the slightest intention to comply with the judgment. One could have easily expected as likely consequences the disregard or – at worst – a challenge of legality of the ECtHR judgment before the Constitutional Court. Instead, the Constitutional Court decided itself to blatantly nullify the Strasbourg ruling. In an interlocutory decision taken on 15 June, it hold that the Xero Flor judgment must be considered “non-existent” because it “was issued without a legal basis, exceeds the competence of the ECtHR and constitutes an unlawful interference with the national legal order”. It thus seems that, as feared, the PSPP judgment of the German Constitutional Court has become a model for European autocratic countries who wants to openly revolt against European and International law. Hopefully, the Committee of Minister of the Council of Europe will take advantage of Article 46 ECHR to start the procedure for forcing execution of the judgment. In the long term, such disregard by Poland of ECtHR rulings may also impact on the mutual trust between EU Member States and become a further ground for refusing execution of the EU instruments of judicial cooperation.
That said (which is of no minor relevance), the judgment remains historic, for the reasons set out above. Everyone interested in the protection of the rule of law in Europe – and the notion and the scope of that concept – should stay tuned for further developments.

During the time that will probably be remembered as the lockdown era, the Court of Justice has released two important decisions concerning the guarantees of judicial independence and impartiality and the judicial reforms in Poland. This time the national provisions at stake concerned the newly created disciplinary chamber within the Polish Supreme Court. As a result of a series of reforms, that chamber is competent to rule on disciplinary proceedings against judges of both ordinary and supreme courts, even on the basis of the content of their judicial decisions and including the exercise of their right to request preliminary rulings. Moreover, its components are selected by the National Council of the Judiciary, a body whose members are politically appointed by the Polish Parliament and whose independence has been deeply undermined over the past few years.
Some of the domestic provisions giving jurisdiction to the disciplinary chamber were already at issue in A.K. and Others (C-585/18, C-624/18 and C-625/18), where, in the context of a preliminary ruling, the Court hinted that such a chamber will hardly pass the test of independence required by EU law. Yet, soon after a new legislation, the so-called “muzzle law”, prevented Polish judges from questioning the independence their peers, thus further restricting their room for manoeuvre. Moreover, whereas in that judgment the Court answered on the sole basis of Article 47 of the Charter, as the case was brought in the scope of EU law by Directive 2000/78, the recent decisions discussed below deal with the lawfulness of the Polish disciplinary chamber under Article 19(1) TEU.

In the Grand Chamber judgment in Joined Cases C‑558/18 and C‑563/18, Miasto Łowicz, the Court of Justice addressees the requests for a preliminary ruling made by two Polish regional courts. Such requests are part of the series of questions raised by (not only) Polish judges about the compatibility of the illiberal measures curbing their independence with EU law, in particular Article 19(1) TEU and Article 47 of the Charter.
The two cases that gave rise to the preliminary requests concerned a dispute between the town of Łowicz and the State Treasury over subsidies and criminal proceedings for kidnapping. Both referring courts feared that, in light of the recent judicial reforms in Poland, biased disciplinary proceedings could be started against the single judges responsible for the cases. At first sight, the cases in the national proceedings seem to have little relation with Union law. And indeed, the Court of Justice declared the requests inadmissible by reason of a lack of connecting factor between the disputes and EU law. Neither the national disputes were connected with the guarantees of judicial independence under Article 19(1) TEU, nor the requests were useful to solve a procedural question. According to the Court, the case differed from both Associação Sindical, where the national proceeding challenged directly the compatibility of the national legislation reducing the remuneration of judges with EU law, and A.K. and Others, in which the interpretation of EU law was necessary to help the referring court to solve a procedural question.
Considering the seriousness of the matter, somebody could be disappointed by the Court’s rejection of the case. However, the Court properly balanced between the protection of the rule of law and the purpose and function of the preliminary ruling mechanism. On the one hand, the decision is in line with the settled case-law as regards the admissibility of preliminary requests. Only those national courts that genuinely seek a clarification of EU law to solve a dispute arising before them may bring a matter before the Court of Justice (see, inter alia, Case C-338/85, Pardini). Indeed, the purpose of the mechanism under Article 267 TFEU is neither for the Court to respond to questions of general nature nor reviewing national law directly.
On the other hand, the Court did not miss the opportunity to send an implicit message to Poland and put its foot down against assaults to judicial independence. In the final part of the judgment, it warned that a disciplinary chamber such as the one envisaged by the Polish reform would not be tolerated under EU law. In particular, the Court stressed that “provisions of national law which expose national judges to disciplinary proceedings as a result of the fact that they submitted a reference to the Court for a preliminary ruling cannot be permitted”.

The much promising infringement procedure against Poland (C-791/19) will soon be an occasion to address the problems of the disciplinary chambers in a direct way. The Commission brought the infringement action before the Court in October 2019 claiming that, by establishing a non-independent disciplinary chamber and allowing judges to be subjected to disciplinary investigations and sanctions on the basis of the content of their judicial decisions, Poland failed to fulfil obligations under Articles 19(1) TEU and 267 TFEU.
In this respect, the Court has already provided us with some guidance in the order for interim measures, where, as requested by the Commission, it instructed Poland to suspend the application of the provisions establishing the jurisdiction of the disciplinary chamber and to refrain from referring the cases pending before it to other chambers that do not comply with the requirements of independence.
The Court firstly rejected the plea of inadmissibility by Poland and found the request for interim measure admissible. In accordance with the settled case-law on the (broad) scope of Article 19(1) TEU, the duty to ensure judicial independence imposed on the Member States by Article 19(1) TEU includes guaranteeing that disciplinary chambers satisfy the requirements of effective judicial protection such as independence and impartiality.
Then, the Court examined the conditions to grant interim measures. Firstly, it found the fumus boni juris satisfied as, in light of the Court’s judgment in A.K. and Others and the elements given by the following orders of the Supreme Court, the Commission’s complaint could not be deemed manifestly unfounded. Secondly, the requirement of urgency was also met. The application of the contested national provisions would cause serious damage to the EU legal order, as from the independence of the disciplinary chamber depends the independence of Polish courts, which is pivotal in guaranteeing effective judicial protection.
Finally, the interest in granting interim measures outweighed the interest in having the disciplinary regime in function. The suspension of the activities of the disciplinary chamber, and thus of the cases pending before it, would cause less damage to the judges concerned than the examination of their cases by a body whose lack of independence and impartiality cannot be excluded.
Poland is now under a duty to comply in full with the order and it has one month to communicate to the Commission the measures adopted to that end. With the final ruling probably to be postponed due to the coronavirus pandemic, the order of the Court has secured judges of the Supreme Court from proceedings before the disciplinary chamber.

Against this background, it is now possible to make a few observations about the answers provided by the Court in the two above decisions and, more generally, the role of judicial remedies in the fight against rule of law backslidings.
First of all, infringements procedures are becoming more and more important in addressing breaches of the rule of law, at least for what concerns judicial independence in the light of Article 19(1) TEU. The infringement procedure on the disciplinary regime for judges has opened the second act of the Commission v. Poland saga. The first act was composed by the two scenes, Commission v. Poland I (C-619/18) and II (C-192/18), where the subject-matter of the dispute was the retroactive reduction of the compulsory retirement age of judges. While we are still waiting for the final judgment, a third act might soon follow as the Commission has recently launched another rule of law infringement procedure against the Muzzle law. It seems that the Commission has finally realized that the reliance on timely infringement actions coupled with requests for interim measures is one of the strongest weapons at its disposal to enforce the rule of law. It might be a drop in the ocean of the rule of law crisis, but at least this strategy is finally paying out after years of inadequate (dialogical) responses.
Secondly, one of the most remarkable judicial development in the context of the rule of law backslidings was the tendency to use the preliminary reference procedure as an additional mechanism to enforce EU values. Domestic courts attacked by illiberal measures are seeking the help of the Court of Justice (and the Union) to stop the assaults put in place by their governments. On the one hand, this phenomenon represents probably the uppermost level of judicial dialogue between European courts. On the other hand, the Court of Justice should be careful not to overstep its mandate in addressing rule of law deficiencies through preliminary rulings. The mechanism under Article 267 TEFU is meant to shed light over the interpretation of EU law and not for substituting direct actions. Infringement procedures are better placed to enforce the rule of law and judicial independence. In comparison with preliminary rulings, which “cannot reverse damage to the rule of law if domestic authorities choose to flout them” (Adamski: 656), infringement actions are faster, more targeted, and do not rely on national enforcement. Yet, their value depends on not only their effectiveness but also their greater legitimacy, which cuts down criticism of judicial activism.
That is not to say that Polish judges should be dissuaded from asking questions to the CJEU. Nevertheless, we should be careful in celebrating the preliminary ruling as a tool to enforce judicial independence and, more generally, European values. It plays a role in the development of fresh interpretations of EU law provisions, as it happened first and foremost in the case of Associação Sindical, but it is not meant to review domestic legislation in light of EU law in a direct way. In this respect, the caution exercised by the Court in A.K. and Others and Miasto Łowicz is to be welcomed.

On the 5^th November 2019, the Court of Justice of the EU (hereafter CJEU or “the Court”) issued the much-awaited judgment in Commission v. Poland II (Law on Ordinary Courts). For the second time in history, after the seminal judgment in Commission v. Poland I (Law on the Supreme Court), the Court was called to verify whether a Member States failed to fulfil its obligations under Article 19(1) TEU for breach of the principle of judicial independence. Unsurprisingly, the defendant Member State – one again, the Republic of Poland – lost the case. Yet, the reasoning and implications of this judgment are of utmost importance for the future of the enforcement of the rule of law in the European Union.

The Commission contested the Polish law “amending the Law on the system of ordinary courts and certain other laws” (hereafter “Amending Law”) of July 2017. Two main aspects were sources of concern. Firstly, the introduction of a difference the retirement ages between men (65 years) and women (60 years) for judges of Polish courts and public prosecutors. Secondly, the granting to the Minister of Justice of the power to extend – at his discretion – the period of activity of judges who reached the retirement age. Accordingly, the Commission made two complaints.
As regards the first plea, the Commission claimed the breach of the principle of equal treatment of men and women in employment as enshrined in both Article 157 TFEU and Directive 2006/54/EC (Equal Treatment Directive). Not surprisingly, the Court sided with the Commission. Firstly, it declared that the pension paid scheme introduced by the Amending Law fulfilled the notion of “pay” under both Article 157 TFEU and the Directive. The decisive criterion to reach that conclusion was the fact that the pension was paid to the judges by reason of their employment.
Then, the Court found the difference in retirement ages to be directly discriminatory and thus in violation of both Article 157 TFEU and the Directive. Such a discrimination could not be justified on the basis of the Polish argument that the measure was aimed at removing discriminations against women. Indeed, a consolidated case law of the Court requires those measures to help women conducting their professional life on an equal footing with men (para. 80 and case-law cited). This was found not to be the case here, as the Polish retirement system was incapable to “offset the disadvantages to which the careers of female public servants are exposed” (para. 81).

Although addressing the Polish illiberal measures through the lens of the discrimination on grounds of sex is a “novelty” in the Commission v. Poland saga, the second one is much more relevant for the purposes of our analysis. The Commission claimed that the combination of the lowering of the retirement age and the new powers granted to the Minister of Justice undermines the principle of effective legal protection as stated in the second subparagraph of Article 19(1) TEU read in conjunction with Article 47 of the Charter. After having recalled the scope of application of Article 19(1) TEU as interpreted in Associação Sindical and the notion of judicial independence, the Court upheld the Commission’s plea.
It should be reminded, in order to gain some perspective, that in Associação Sindical the Court held that Article 19(1) TEU requires the Member States to fully guarantee the independence of their domestic courts, – an essential condition to ensure effective judicial protection – irrespective of whether they are implementing Union law in the case in question. That Article relates to “the fields covered by Union law”, as its application is related to the possibility for a national judicial body to rule on questions concerning the application or interpretation of EU law.
The new interpretation given to Article 19(1) TEU was meant to stir things up in the context of the rule of law crisis (see Repetto’s analysis on this blog). Indeed, few months after, the Commission started for the very first time an infringement procedure for violation of the principle of judicial independence as entrenched in Article 19(1) TEU. In ruling over that procedure in Commission v. Poland I, the Court dismissed the relevance of any factual element in establishing the applicability of Article 19(1) TEU. Thus, its application depends on a functional factor – namely, the participation of national courts in the “European judiciary” (Bonelli-Claes: 631).

Against this background, in Commission v. Poland II the Court found that, since Polish courts might be called to rule on questions related to EU law, Article 19(1) TEU applies to them (para. 104). Thus, the Court can examine whether the Amending Law satisfied the requirements of independence, which, according to a consolidated jurisprudence, have both an external aspect (absence of external pressures) and an internal one (impartiality). Judicial independence so defined requires, in particular, rules capable to both guarantee the irremovability of judges and avoid direct and indirect influences liable to affect their decisions.
In the present case, rather than the mere power of the Minister of Justice to extend the mandate of judges, it was the inadequacy of the substantive conditions and procedural rules channelling that power that was found to be problematic. Those rules must be as such not to give rise to doubts “as to the imperviousness of the judges concerned to external factors and as to their neutrality with respect to the interests before them” (para. 119). This was found not to be the case here, for a twofold reason.
Firstly, the power to authorise judges to continue their duties were granted to the Minister of Justice under criteria which were “too vague and unverifiable” and not even accompanied by a duty to state reasons, or a judicial remedy (para. 122). Secondly, there was no deadline for the Minister of Justice to answer a request of the extension of the mandate, thus putting the judge concerned in a situation of uncertainty (para. 123).
Finally, the Court also looked at the combination of that measure with the general reform lowering the retirement age of judges and found a breach of the principle of irremovability. That combination was likely to be perceived as an attempt to enable the Minister of Justice to decide at his discretion over the removal of those judges who reached the normal retirement age (para. 127).

The outcome of the case is far from surprising and very much in line with what happened in Commission v. Poland I. However, it is a bit disappointing that the Court confined itself in solving the dispute in question, without taking the opportunity to address the broader issues left open in its previous case law.
Firstly, the Court did not seize the opportunity to sheer light over the relationship between Article 19(1) TEU and Article 47 of the Charter, as Advocate General Tanchev suggested in his Opinion. In Associação Sindical, the Court relied also on Article 47 of the Charter to stress that access to an “independent” tribunal is a key component of effective judicial protection. However, it then restrained itself in applying the Charter directly, while considering it as a source of inspiration.
While acknowledging the existence of a “constitutional passerelle” between the two provisions, Advocate General Tanchev warned against a direct use of Article 47 of the Charter in situations outside the notion of implementation of EU law under Article 51(1) of the Charter, as that would amount to an extension of the Union’s competences and thus a violation of Article 6(1) TEU and Article 51(2) of the Charter (paras. 99-100 of the Opinion). The following judgment in A.K. and Others may be seen as an implicit acceptance of that reasoning. In the context of a situation brought in the scope of EU Law by Directive 2000/78, the Court held that an analysis of Article 19(1) TEU was not necessary because the national measure at issue was already in breach of the principle of judicial independence arising from Article 47 of the Charter. Hence, we could infer, by a contrario reasoning, that in situations falling outside the scope of application of the Charter, only Article 19(1) TEU is applicable (if the situation concerns “fields covered by Union law”). However, an explicit clarification from the Court would be much welcome in this respect.
Secondly, it remains to be seen whether the application of Article 19(1) TEU is restricted to cases where there are generalised deficiencies as regards the rule of law (also discussed here and here). Interestingly, Advocate General Tanchev proposed to confine the material scope of Article 19(1) TEU in relation to problems that threaten judicial independence in a systemic way. Conversely, individual breaches of judicial independence should be dealt with under Article 47 of the Charter, where applicable according to Article 51(1) of the Charter. This would avoid having the EU overstepping the competences of the Member States or those of the ECtHR in addressing fundamental rights violations (paras. 114-116 of the Opinion).
Thirdly, the Court did not further clarify the meaning of Article 19(1) TEU apart from judicial independence. It thus left open whether other components may be identified in the future as part of the requirement of effective legal protection under that Article.

Whereas the judgment did not raise new points of law in comparison with Commission v. Poland I, the fact that the Court, for the second time in less than five months, found Poland to be in breach of Article 19(1) TEU is of particular importance. Indeed, it confirms both the new role that the Court is carving out for itself in the enforcement of the rule of law (see my previous analysis on this blog) and the boost that infringement procedures have received as an instrument for enforcing EU values.
One of the most problematic kinds of measures put in place by the Polish and Hungarian governments was the attempt to dismantle the guarantees of independence attached to judges. However, initially the Commission did not treat the first cases with the severity they required. In Commission v Hungary – where a measure lowering the compulsory retirement of judges was at issue – the Commission limited itself to claim only a breach of the principle of non-discrimination on grounds on age. Thus, it failed to tackle directly the problems related to the violation of judicial independence and rule of law (Bugarič: 20).
That case illustrated the traditional shortcomings of the infringement procedure in the enforcement of European values – that is, the fact that they address only direct breaches of EU law. Indeed, for a long-time, they were considered as an ill-suited instrument in the realm of values, where much of the violations took place in areas outside EU competences (Gormley).

Against this background, the action of the Commission and the judgments in Commission v Poland I and II are much welcomed. The direct objective of the action was indeed achieved as the contested laws are no longer in place. Besides, they had a very symbolic impact.
These elements have supported the legitimacy of the Commission’s initiative. At present, a third infringement procedure has been launched against Poland for breach of Article 19(1) TEU by reason of the introduction of a disciplinary regime for judges of the ordinary courts.
In the past neglected as a measure for values enforcement, infringement procedures are now displaying a renovated role in upholding the rule of law against illiberal reforms.
Such a role is increased by the fact that they are mutually exclusive as regards procedure under Article 7 TEU. The two mechanisms – one legal and the other political – may be invoked in parallel and for the same national measure, as confirmed by Advocate General Tanchev in a previous Opinion. Indeed, the fact that the procedure provided under Article 7(1) TEU had been triggered against both Hungary and Poland did not prevent the Commission from starting infringement procedures for the same legislative changes.
In light of the above, infringement procedures display a double advantage. Firstly, they can be used to bring cases concerning specific points of EU law connected with broad rule of law concerns, as the Commission has started to do against Hungary (pending cases C-718/17 and C-66/18). Secondly, thanks to the revolution operated by the Court, they can also be used to address breaches of the principle of judicial independence directly. As they are independent of both political support and cooperation with national courts, they have an advantage in comparison with both Article 7 TEU and the preliminary ruling system.
Yet, it seems that an interpretative effort from the CJEU is still required before the Commission decides to take a courageous infringement action such as in the case of Article 19 TEU. Hence, it is doubtful whether future enforcement of EU values may depend only from actions under Articles 258-260 TFEU without a prior clarification from the Court as regards the substantive criteria shaping the principle of effective judicial protection, as well as the rule of law.

What also remains to be seen is whether the infringement procedure as a measure to safeguard judicial independence will be relied on also by individual Member States in actions under Article 259 TFEU. Some scholars had already argued in favour of this possibility in the past (Kochenov). Nowadays, the enlarged scope of Article 19(1) TEU may give fresh impetus to that suggestion. Even though it is still hard to believe that a single or a small group of “virtuous” countries will act against a Member States violating the rule of law, it is interesting to reflect upon the possibility of direct actions under Article 259, as one day it might give rise to an interesting line of case law.

On 27 February 2018 the Court of Justice of the European Union (hereafter CJEU or “the Court”) delivered a Grand Chamber judgment in the Associação Sindical dos Juízes Portugueses v Tribunal de Contas Case (C-64/16) where it demonstrated a proactive attitude as regards the protection of EU values.
It is well known that, as far as European values are concerned, the Court’s hands are bound with respect to Article 7 TEU.[i] Yet, the Court has full justiciability over Article 2 TEU, although for a long time it has avoided the use of such provision in supporting its legal reasonings.[ii] Things have recently started to change.  Considering the hesitancy of other EU institutions and the difficulties the EU is experiencing in enforcing EU values, the stance of the CJEU in this judgment certainly deserves a close analysis.

Facts are as follows. The Associação Sindical dos Juízes Portugueses (hereafter “ASJP”), acting on behalf of the judges of the Court of Auditors (Tribunal de Contas), challenged the Portuguese measures introduced by the Law 75/2014 before the Portuguese Supreme Administrative Court (Supremo Tribunal Administrativo). Such measures were adopted on the basis of the Portuguese Law No. 75/2014 which temporarily reduced the remuneration of the personnel working in the public sector, including the judges of the Court of Auditors. The case was then brought before the CJEU through a preliminary reference procedure made by the Supremo Tribunal Administrativo, which envisaged a breach of the principle of judicial independence as a consequence of the restrictions imposed on the guarantees attached to the justices’ status.  Therefore, the referring court asked the CJEU whether the principle of judicial independence, as stated in Article 19(1) TEU and Article 47 of the EU Charter of Fundamental Rights (hereafter “the Charter”) as well as in the case-law of the Court, has to be interpreted as precluding salary-reduction measures such as those applied to the judiciary in Portugal.

The CJEU ruled that the principle of judicial independence does not preclude measures like the ones at issue. It found that, since the reduction of the salary was temporary and broadly addressed to the employees of the public sector, this could not impair the independence of the judges of the Courts of Auditors. Hence, once again the Court stroke down an attempt to challenge national measures adopted as a consequence of sovereign debt programmes (Kilpatrick, 2017: 335-336).
Nonetheless, the reasoning adopted is particularly significant as it goes well beyond the practical conclusion. There are two main points on which the CJEU relied that we should pay attention to: the jurisdiction of the Court to rule on the case and the strong reference to European values.
First of all, the CJEU chose to rely on a very weak material link, not embracing the reasoning expressed by the Advocate General (hereafter “AG”) in its Opinion. Indeed, AG Saugmandsgaard Øe highlighted that the Court had jurisdiction to interpret Article 19(1) TEU because the effective judicial protection should be guaranteed when, in cases such the one at issue, national courts apply EU law (para 40-42 of the Opinion). As far as the Charter is concerned, the AG stated that the application of Article 47 was possible because the implementation of EU law required by Article 51(1) of the Charter was provided by the fact that the Portuguese law at issue was adopted to enforce the objectives posed by the Council Implementing Decision 2014/234 (para 52 of the Opinion).
The Court decided to follow a different path. It relied exclusively on Article 19(1) TEU (second paragraph) by ruling that such a provision relates to “the fields covered by Union law”, regardless of whether the Charter is applicable (para 29 of the Judgment).
This raised a key and potentially ground-breaking question: has the Court made Article 19(1) TEU a stand-alone provision? Such a situation would broaden the number of cases that applicants can bring before the CJEU as a failure by a Member State to uphold a court’s independence can be challenged directly on the basis of Article 19(1) TEU. The discriminating circumstance would be the jurisdiction of the national judicial body over EU law matters. The CJEU would thus have de facto jurisdiction in all future cases in which applicants will complain about the violation of article 19(1) TEU (Pech, Platon: 2018).
Yet, in this case a weak reference to a link between the circumstances at issue and EU law is still identifiable (Lazzerini, 2018: 267). Indeed, according to the referring court, the measures were “European in origin” since they were adopted on the basis of the compulsory requirements imposed on Portugal for reducing its excessive budget deficit in the framework of an EU decision granting it financial assistance (para 14 of the Judgment). Moreover, both at paragraph 46 and in the final ruling the Court presented the Portuguese law at issue as linked to the requirements to be adopted in the context of the EU financial assistance programme to Portugal.
Nevertheless, the reasoning adopted by the CJEU in this case is remarkable as it provided for an expansion of the value of Article 19(1) TEU. The above interpretation could also represent a future incentive for the European Commission to rely solely on that Article when building infringement actions aimed at tackling violations of the principle of effective judicial protection.[iii]

Secondly, the CJEU constructed the substance of its reasoning with a strong reference to Article 2 TEU. It decided to use the homogeneity clause as a pillar to strengthen its analysis, stressing that compliance with those values is the “fundamental premiss” of which mutual trust between the Member States and their courts is founded upon (para 30 of the Judgment).
Moreover, the CJEU affirmed that Article 19(1) TEU “gives concrete expression to the value of the rule of law stated in Article 2 TEU” (para 32). Such a statement was further reinforced by the reference to the principle of sincere cooperation entrenched in Article 4(3) TEU (para 34).
After having laid down the foundations of its reasoning, the Court stated that in order for the effective judicial protection to be safeguarded, Member States shall guarantee the independence of their courts as long as they are bodies which may rule “on questions concerning the application or interpretation of EU law” (paras 40-41). Thus, the CJEU departed from what was suggested by the AG, according to whom Article 19(1) second paragraph imposes an obligation of procedural nature to the Member States, that is, the establishment of a system of judicial remedies capable of guarantee an effective judicial protection to the individuals (paras 63-66 of the Opinion). The latter was therefore found to be different from the right to independent courts (para 66 of the Opinion).
Before adjudicating on the substance of the practical case at issue in only six paragraphs, the Court restated its previous case-law on the criteria of independence.[iv] It also emphasised the pivotal connection between the independence of the judiciary and the proper working of the preliminary ruling system as expressed in Article 267 TFEU (para 43 of the Judgment).

As emerged throughout the analysis, the greatest part of the CJEU’s reasoning is dedicated to the recognition of the importance of EU values as a premise for the mutual trust among the Member States, the rule of law, judicial independence and effective judicial protection (paragraphs 29-46). If it was not for the narrow reasoning devoted to the pending issue in the very last paragraphs, one could reasonably wonder if this case was still about the salary reduction measures against Portuguese judges.
In order to understand the Court’s message, it is necessary to put it into the general context of rule of law backsliding situations ongoing in some EU countries (Pech; Scheppele, 2017). On the one hand, the CJEU has indirectly sent a clear message to countries such as Poland and Hungary that judicial independence is a must in the EU legal order and also supported the Commission’s initiative to trigger the Article 7(1) TEU procedure against the former.
On the other hand, such judgment confirms the change of attitude of the CJEU as regards the use of Article 2 TEU that started with the order for interim measures against Poland in the Białowieska forest case (C-441/17 R). When asked to rule over the matter of effective judicial protection, the CJEU decided to seize this opportunity and took a stance against violations of the rule of law, relying also on Article 2 TEU to support its reasoning (Sarmiento, 2017). Thus, the CJEU is supporting the view that rule of law and value-related issues cannot be limited to situations covered by EU law.
Besides, by reading Article 2 TEU in conjunction with Article 19(1) and 4(3) TEU, the Court has started to clarify the substance of such provision. Some authors already recognised that the Court attempted a first “operationalization” of Article 2 TEU (Ovádek, 2018). Such an effort of the Court is welcomed as the future enforcement of the rule of law in the EU eventually depend on a key and preliminary step, that is, the disentanglement of the substance of Article 2 TEU. As the CJEU has started to include Article 2 TEU in its toolbox, we may expect further clarification on the matter in future judgments.

In this judgment the CJEU has opened a door to the conversion of EU values as standards for the organization of the national judiciary, thanks to both the creative interpretation of Article 19(1) TEU and the strong reference to Article 2 TEU and judicial independence.
Thinking about which actors have to play a role in dealing with the rule of law crisis, one may imagine, in the first instance, that political institutions are the only actors to be taken into account. Yet, if the CJEU will continue in its judicial activism, this will represent one of the main features of the current rule of law crisis. Indeed, the CJEU is more and more showing its willingness to have a role in the picture of EU values enforcement, despite the limits that Article 7 TEU poses to its competence.

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[i] Article 269 TFEU limits the role of the CJEU under Article 7 TEU to procedural issues only.

[ii] An opportunity the Court did not size was the one in the Case C-286/12. See for further analysis: A. Vincze, The ECJ as the Guardian of the Hungarian Constitution: Case C-286/12 Commission v. Hungary, European Public Law, No. 19, Issue 3, 2013, 489–500.

[iii] The Commission actually seized this opportuning in building the infringement procedure against Poland for the Polish Law on the Supreme Court. According to the Commission, the new retirement age regime introduced by the Law would force 40% of judges to retirement and thus breach the principle of judicial independence as acknowledged by Article 19(1) TEU read in connection with Article 47 of the Charter. The case has recently been referred to the CJEU. See: European Commission, Press release - Rule of Law: European Commission refers Poland to the European Court of Justice to protect the independence of the Polish Supreme Court, Brussels, 24 September 2018.

[iv] For the distinction between internal and external aspects of independence see: CJEU, Case C-506/04, Wilson, ECLI:EU:C:2006:587 and Joined Cases C-58&59/13, Torresi, ECLI:EU:C:2014:2088.

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References

European Commission, Proposal for a Council decision on the determination of a clear risk of a serious breach by the Republic of Poland of the rule of law, Brussels, 20 December 2017, COM(2017) 835 final.

363. Kilpatrick, The EU and its Sovereign Debt Programmes: The Challenges of Liminal Legality, Current Legal Problems, Vol. 70, No. 1, 2017, 337–363.
364. Lazzerini, La Carta dei diritti fondamentali dell’Unione europea. I limiti di applicazione, Franco Angeli, Milano, 2018.
365. Ovádek, Has the CJEU just Reconfigured the EU Constitutional Order?, Verfassungsblog, 28 February 2018.
366. Pech, S. Platon, Rule of Law backsliding in the EU: The Court of Justice to the rescue? Some thoughts on the ECJ ruling in Associação Sindical dos Juízes Portugueses, EU Law Analysis, 13 March 2018.
367. Pech, K.L. Scheppele, Illiberalism Within: Rule of Law Backsliding in the EU, Cambridge Yearbook of European Legal Studies, 2017, No. 19, 3-47.
368. Sarmiento, Provisional (And Extraordinary) Measures in the Name of the Rule of Law, Verfassungblog, 24 November 2017.
369. Vincze, The ECJ as the Guardian of the Hungarian Constitution: Case C-286/12 Commission v. Hungary, European Public Law, No. 19, Issue 3, 2013, 489–500.

Case-Law

CJEU, Case C-506/04, Wilson, ECLI:EU:C:2006:587
CJEU, Case C-286/12, Commission v Hungary, ECLI:EU:C:2012:687.
CJEU, Joined Cases C-58&59/13, Torresi, ECLI:EU:C:2014:2088.
CJEU, Order in Case C-441/17 R, Commission v. Poland (Białowieska forest), ECLI:EU:C:2017:877.
CJEU, Case C-64/16, Associação Sindical dos Juízes Portugueses, ECLI:EU:C:2018:117.
CJEU, Case C-64/16, Opinion of Advocate General Saugmandsgaard Øe, ECLI:EU:C:2017:395.